text:
    A99A1507.
    ENCHANTED VALLEY RV PARK RESORT, LTD. et al. v. WEESE et al.
    (526 SE2d 124)
   Eldridge, Judge.

Mike & Mike, Inc. created and owned a recreational development in Towns County, Georgia, for sale or rent as recreational vehicle sites. Robert N. Clay became the majority shareholder and changed the corporate name to Enchanted Valley RV Park Resort, Ltd. (“Developer”), appellant-defendant. On June 1, 1993, the Developer created Enchanted Valley Property Owners Association, Inc. (“Association”). At the time of creation of the Association, bylaws were adopted by the Developer without the participation of lot owners. Previously, on November 22, 1989, a Declaration of Covenants, Conditions, and Restrictions (“CCR”) for The Pasture Recreational Vehicle Park and the unadopted bylaws were recorded with the Clerk of the Superior Court, Towns County as the governing documents of the Association. Some 39 separate items of documentary evidence, including these documents, were admitted at trial but were not included in the record on appeal.

In the summer of 1996, lot owners became dissatisfied with the Developer over its statement of an annual maintenance fee, including charges for water and sewer. In the spring of 1997, Leonard Scott, then President of the Association, resigned from the board of directors of the Association, and the board appointed Bob Ellis as the interim President, leaving S. Sandra Hutchinson as Association Secretary and Director. Hutchinson was a lot owner and resident managerial employee of the Developer.

In early September 1997, the Association’s annual meeting was held, with Ellis presiding. At the time for election of board members, Ellis recognized only one vote per lot owner, regardless of the number of lots owned. Clay and Hutchinson did not recognize the validity of such election. After the meeting, Ellis, acting for the board, notified Hutchinson that she had been terminated as Secretary of the Association and that she should turn over all Association records, which she refused to do on Clay’s instructions.

On December 6, 1997, the Association held a special meeting to elect new Directors for 1998. Clay disputed the election results on the basis that the bylaws were not followed and that there was no validation of the proxies, which were tabulated in determining the election results. The Developer owned 92 lots and claimed the right to cast 184 votes. Lot owners Steve Weese, David Wilson, and Jack Anderson were elected President, Vice-President, and Secretary/Treasurer and members of the board of directors of the Association (“Officers”).

On March 26, 1998, the Officers sued the Developer, Clay, and Hutchinson for an accounting and to obtain the financial books, accounts, and records of the Association so that they could determine the Association members’ assessment and pay the Developer proper fees and charges. They also sought to restrain the Developer from collecting its “Park Management Budget” from the Association and its members, which included water and sewer charges. The Developer and the other defendants answered and counterclaimed, seeking dissolution of a restraining order against Clay in Civil Action File No. 96-C.V.-0096-HS, to allow the Developer to collect service charges, including water and sewer; to disconnect services for failure to pay; and to declare the Association election void.

On August 12, 1998, after a four-day bench trial, the trial court entered its final order and judgment, which granted the Officers relief by setting the amount to be paid for water and sewer services for each lot, ordering the surrender of the Association’s financial records, and validating the election. The defendants moved for a new trial. The trial court denied the motion. The defendants filed their notice of appeal. On December 14, 1998, the trial court granted a supersedeas that denied the defendants the right to sue to collect maintenance fees and charges for water and sewer or from terminating such services for non-payment. Held:

1. In their first enumeration of error, the defendants contend that the trial court erred in failing to grant the motion to dismiss. We do not agree.

The defendants contend that the December 6, 1997 election was not in compliance with the bylaws. However, neither the bylaws nor copies of other documentary evidence were sent to this Court as part of the record from the court below.

(a) The trial court had the bylaws in evidence and took judicial notice of Civil Action File No. 97-C.V.-061-HS; in Civil Action File No. 97-C.V.-061-HS the trial court determined that the recorded CCR bound all property owners and gave one vote to each lot owner. Such judgment was affirmed by this Court in Enchanted Valley RV Park Resort v. Enchanted Valley Homeowners Assn., 232 Ga. App. XXVII (1998). Thus, the doctrine of res judicata prohibits the relitigation of the one lot/one vote issue.

(b) The defendants sought to assert the rights to two votes per lot under bylaws created at the time the Association came into existence long after the sale of lots and the CCR. The Association, however, received corporate status after the filing of the declaration. Such bylaws conflicted with the CCR, because the CCR gave only one vote per lot owner. The provisions under the CCR control, because the one vote/one lot created a vested legal right. See OCGA §§ 14-3-206 (b); 44-3-100 (a).

(c) The vote by the Association members by proxy had authorization under OCGA § 14-3-724. Either the corporate secretary or other officer had authority to receive and to tabulate votes, and the record showed evidence that an officer received such proxies for the December 6 election. OCGA § 14-3-724 (c). Since there existed a legitimate issue as to who was the Secretary, then another officer properly received and counted the votes. The votes of December 6 determined the members of the board of directors of the Association. Those directors properly appointed new officers to terms commencing January 1, 1998.

“The burden is on him who asserts error to show it affirmatively by the record.” (Citations and punctuation omitted.) Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437) (1979). “This cannot be done by evidentiary assertions in either the enumeration or the brief. [Cit.]” Thigpen v. Johnson, 169 Ga. App. 410, 411 (313 SE2d 121) (1984).

It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.

(Citations omitted.) Bennett v. Exec. Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993). Therefore, this Court affirms the trial court’s finding that the election was yalid.

2. Defendants contend that the trial court erred in finding that the Developer was a water authority under the rules and regulations of the Georgia Department of Natural Resources (“DNR”), subjecting it to a trust indenture for the continued operation and maintenance of the water and sewer systems. We do not agree.

This Court[, Superior Court of Towns County], in Towns County Superior Court Civil Action No. 97-CV-061-HS, has previously ruled . . . that, under the CCR, annual assessments made against the lot owners, for water, sewer, and maintenance charges should be levied by and paid to the Association. Further, this Court found that, under the CCR, Resort Ltd. [(Developer)] owns the water and sewer systems serving the lots and is the exclusive source for such services.

Such issues were previously litigated between the parties and are subject to res judicata and collateral estoppel in this action, as found by the trial court. OCGA §§ 9-12-40; 9-12-42; Gilmer v. Porterfield, 233 Ga. 671 (212 SE2d 842) (1975); Fierer v. Ashe, 147 Ga. App. 446 (249 SE2d 270) (1978).

Based upon such previously adjudicated issues, the trial court made certain legal determinations as a matter of law, as well as certain additional findings of fact:

(1) that “[t]he [Developer] has been approved by the Georgia Department of Natural Resources (DNR) to furnish water to 224 lots”; (2) that “[n]o trust indenture exists for the continued operation and maintenance of the systems”; (3) that “in addition to reimbursement to all water and sewer maintenance expenses, [Developer] was paid $25,531.34 (over-half of the total assessments collected) as a water and sewer fee”; (4) that “[t]he water and sewer systems for the Park are designed for service to RV users and not for full time residential service. The RV owners cannot have regular flush toilets but must use marine toilets. The owners may not have dishwashers or clothes washers in their units”; (5) that “[t]he Developer is currently seeking to have the Association assess $21.00 per month, per lot, as a water and sewer fee”; (6) that “[u]nder the law of this State . . . each lot owner has a quasi-easement for the provision of water and sewer services to their lots”; (7) that “[t]he Developer, or its successor or assigns, is entitled to receive ‘reasonable' value’ for the water and sewer services supplied”; and (8) that “pursuant to Georgia Department of Human Resources regulations 290-5-26.-.03, it is the Developer’s responsibility to maintain and operate the on-site sewer management system in a safe and sanitary manner so as not to constitute a public health hazard or nuisance”; (9) that “[t]he Developer is operating a non-governmentally owned community public water system as defined in Georgia Department of Natural Resources regulations 391-3-5-.01 (66)”; and (10) that “[t]he Developer must comply with DNR regulations 391-3-5-.04 (4), and file with DNR an executed Trust Indenture as required therein, to assure the continuity and maintenance of the water system.”

(a) Defendants contend that the rules and regulations of the Georgia Department of Human Resources (“DHR”) were never tendered into evidence so that the trial court had nothing before it regarding such regulations. However, a trial court must take judicial notice of the rules and regulations of the State of Georgia that are published under authority by the Secretary of State. OCGA § 24-1-4. Pursuant to the Administrative Procedure Act (“APA”), the Georgia DHR Public Health Division and the Georgia DNR Environmental Protection Division must promulgate all of their rules and regulations as prescribed by said Act. OCGA §§ 50-13-2 (1), (6); 50-13-3; see also Orkin Exterminating Co. v. Blackmon, 229 Ga. 146, 149 (5) (190 SE2d 43) (1972). All such rules and regulations must be published by the Secretary of State as the Rules and Regulations of the State of Georgia. OCGA §§ 50-13-3 (b); 50-13-5; 50-13-7. Therefore, such rules and regulations were published by the Secretary of State under statutory authority within the meaning of OCGA § 24-1-4. Judicial notice of the rules and regulations promulgated under the APA and published under authority must be taken by the trial court. OCGA §§ 24-1-4; 50-13-8; Owens v. Ga. Underwriting Assn., 223 Ga. App. 29, 32 (3) (476 SE2d 810) (1996); Blossman Gas Co. v. Williams, 189 Ga. App. 195, 200-201 (5) (375 SE2d 117) (1988); Cullers v. Home Credit Co., 130 Ga. App. 441, 443 (3) (203 SE2d 544) (1973).

The trial court took judicial notice of controlling published regulations of the state as any other state law. See Rules & Regulations of the State of Georgia, Rules of the DHR Public Health Division, Chapter 290-5-26, On-Site Sewage Management Systems, § 290-5-26.-.03, pp. 685-689; Rules & Regulations of the State of Georgia, DNR Environmental Protection Division, Chapter 391-3-5, Rules for Safe Drinking Water, §§ 391-3-5.01 (66), 391-3-5-.04 (4), pp. 608.01, 608.07. Thus, the trial court did have in evidence before the court such rules and regulations.

(b) In prior litigation between the parties, the trial court determined that neither water nor sewage treatment was available to the lot owners in the park (The Pasture). The Developer maintained and owned a community sewage treatment system within the rules and regulations of the DHR. Rules & Regulations of the State of Georgia, § 290-5-26.-.03, pp. 685-689.

“Public water system or PWS” means a system that provides water to the public for human consumption through pipes or other constructed conveyances, if such system has at least fifteen (15) service connections or regularly serves an average of twenty-five (25) individuals daily at least 60 days out of the year.

Rules & Regulations of the State of Georgia, § 391-3-5-.01 (66), pp. 608.01-608.02. “A public water system is either a ‘community water system,’ a ‘non-transient non-community water system,’ or a ‘transient non-community water system.’ ” Id. The Developer owned and maintained a public water system within the rules and regulations of the DNR.

Under the regulations of the DNR Environmental Protection Division, operation of a community public water system, provides that

[t]he requirements of this paragraph shall apply to all non-governmentally owned community public water systems that have been issued a permit to operate by the Director or have applied for a permit before January 1, 1998. To assure the continuity of operation and maintenance of a non-govemmentally owned .and operated public water system when the water customers own the property being served by the supplier, the supplier of the water system shall file with the Division an executed Trust Indenture as prescribed by the Division and approved by the Director. The Trustee should preferably be a governmental authority. When a governmental authority is not available, the Trustee should be a property owners association organized to guarantee the operation and maintenance of the public water system. The association must be made up of members who are owners of properties served by the water system. The Articles of Incorporation and By-Laws of the association are to be submitted to the Division for review and/or approval. If a Trustee other than a unit of local government or property owners association is proposed, it will be necessary to determine that there is no identity-of-interest between the owner or the system and the Trustee. For new or proposed systems, the legal documents shall be submitted with the plans and specifications. When the supplier is or desires to serve water to property [not] individually owned by the water consumer, a legal document assuring the continuity and maintenance of operation may not be required.

Rules & Regulations of the State of Georgia, § 391-3-5-.04 (4). The Developer is not in compliance with such requirement.

Clearly under the facts of this case, the Developer is a non-governmentally owned community public water system, i.e., a “water authority’ in the defendants’ words, and is subject to a trust indenture to assure continuity and maintenance of such system under DNR regulations §§ 391-3-5-.01 (66) and 391-3-5-.04 (4). The evidence is that there are 224 lots, of which 97 are rental lots owned by the Developer and Clay, and 137 are lots owned by others. The DNR regulations require a public water system to have at least 15 service connections or regularly serve an average of 25 individuals daily at least 60 days out of the year; both of these conditions were satisfied by the Developer. DNR regulations § 391-3-5-.01 (66). Several lot owners testified that they lived in the park most of the year.

In determining who was responsible for maintenance and upkeep of the non-governmentally owned public community water system and who was obligated to pay for water and sewage, it was necessary for the trial court to look to all applicable state and federal laws, as well as applicable rules and regulations of the agencies of government. As officers/directors of the Association of owners of lots served by the public water system, the plaintiffs had standing to raise such issues on behalf of the Association.

3. In other litigation between the parties over some of the same issues, defendants sought to establish what the developers’ financial obligations to the homeowners association were. This earlier litigation was Enchanted Valley RV Resort, Ltd. v. Jones, Civil Action File No. 93-C.V.-150-HS, Towns Superior Court, which involved the same parties but different issues from the prior action mentioned in Divisions 1 and 2.

Defendants assert that the trial court erred in finding that the Developer failed to pay the full amount for water, sewer, and maintenance fees, because such issue was controlled by the judgment in Enchanted Valley RV Resort, Ltd. v. Jones, Civil Action File No. 93-C.V.-150-HS, Towns Superior Court.

The defendants did not tender into evidence a certified copy of Civil Action File No. 93-C.V.-150-HS, which is a different case from that mentioned in Divisions 1 and 2 and which defendants relied upon for collateral estoppel or res judicata; nor did they request at trial that the trial court take judicial notice of such prior suit between the parties in the same court. If such case was ever tendered into evidence, then defendants failed to include it as part of the record on appeal. The defendants do not cite to the record where such evidence exists. See Court of Appeals Rule 27 (c) (3) (i).

Absent evidence of the prior pleadings and judgment in such related case and citation to the record, this Court cannot determine if the doctrine of res judicata applies to this case. Rule 27 (c) (3) (i) requires the appellants to support their assertion of error “by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” See also Darnell v. Houston County Bd. of Ed., 234 Ga. App. 488, 491 (2) (506 SE2d 385) (1998); Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 345 (489 SE2d 123) (1997). “It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties.” (Citations and punctuation omitted.) Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 15 (2) (476 SE2d 797) (1996). In this case, defendants “failed to sustain [their] evidentiary burden of showing harm by providing specific citations to the record. Diffley v. Marshall’s, [supra at 345].” Darnell v. Houston County Bd. of Ed., supra at 491. Thus, this enumeration is deemed abandoned.

4. Defendants contend that the trial court erred in finding that the Developer was the only source of water and sewer services. However, such issues previously have been adjudicated between the parties in prior litigation as set forth in Division 2, which controls.

5. The defendants contend that the trial court erred in finding that there was an inappropriate commingling of funds between the Developer and the Association. We do not agree.

The plaintiffs, in their capacity as newly elected officers of the Association, sought equitable relief to obtain an accounting from Clay, Hutchinson, and the Developer of the funds and financial records of the Association and to compel by injunction that the books and records be turned over to them. Where a fiduciary commingles assets and records for its benefit, such provides grounds for equity to act. See Perkins v. First Nat. Bank of Atlanta, 221 Ga. 82, 88 (2) (143 SE2d 474) (1965); Perdue v. McKenzie, 194 Ga. 356, 366-370 (3) (21 SE2d 705) (1942); McCord v. Walton, 192 Ga. 279 (1) (14 SE2d 723) (1941). One acting as agent, corporate officer, trustee, receiver, executor, or administrator has an imperative duty of an accounting party to keep his accounts in a regular manner and to be always ready with his accounts. He is bound to render all necessary information required of him. See Poullain v. Poullain, 76 Ga. 420, 446 (5) (4 SE 92) (1886).

Prior to 1997, defendants controlled the Association and assessed lot owners fees payable to the Association. Hutchinson worked for the Developer and the Association without distinction between the two corporate entities.

A corporate officer or director owes to the corporation and its stockholders a fiduciary or quasi-fiduciary duty, which requires that they act in utmost good faith. “ ‘Directors and officers in the management and use of corporate property in which they act as fiduciaries and are trustees are charged with serving the interests of the corporation as well as the stockholders.’ ” (Citations and punctuation omitted.) Pelletier v. Schultz, 157 Ga. App. 64, 66 (3) (b) (276 SE2d 118) (1981). When such duties are violated, resulting in waste to the corporate assets or injury to such property, the directors and managers are liable to account. Id.; see Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585-586 (1) (397 SE2d 699) (1990); Caswell v. Jordan, 184 Ga. App. 755, 760 (7) (362 SE2d 769) (1987). With a nonprofit corporation, the officers and directors owe their fiduciary duties to the corporation, unless they cause individual injury to an association member by the breach of their fiduciary duties. Dunn v. Ceccarelli, 227 Ga. App. 505, 507-508 (1) (489 SE2d 563) (1997). Thus, Hutchinson, as an officer and director, was subject to an equitable accounting of the assets of the Association, which involved Clay and the Developer because they had commingled their funds with those of the Association.

The trial court found that Clay has treated himself as the Developer, i.e., Enchanted Valley RV Park Resort, Ltd., the Association, or the Park, and made no distinction between any of them. According to the trial court, “Clay has provided management services to the Park, for a fee, including services for Resort Ltd. and the Association and for individual lot owners, without differentiating between the entities or the respective entities or the respective services provided.” Also, “Clay/Resort Ltd. (hereinafter jointly referred to as ‘the Developer’) has charged lot owners, through the Association, a monthly fee for water and sewer services.” The trial court also found:

In 1997 Hutchinson was in control, under the direction of Clay, of the Association receipts and expenditures, as well as Resort Ltd.’s receipts and expenditures. During that time Hutchinson was an employee of Resort Ltd. and an officer and director of both Resort Ltd. and the Association. The financial records placed in evidence, and the testimony of Hutchinson and Clay show an extensive commingling of funds belonging to Resort Ltd. and to the Association. The Association’s funds were used to pay the Developer’s employee’s salaries, its telephone and utility charges, its property taxes, its civic association dues, its office expenses and other expenses of the Developer’s business of selling and renting lots. Neither Clay nor Hutchinson could separate out the charges which may have pertained to the business of the Association and those of the Developer. Both Clay and Hutchinson considered the expenses of the Association and the expenses of the Developer to be the singular expenses of the Park. The Developer alleges he/it has paid his 1998 fees to the Association account under the control of Hutchinson, together with fees collected from Clay’s employees and relatives who are also lot owners. Out of the 1998 fees collected by Hutchinson, on behalf of the Association, she has paid out the Developer’s business expenses, employee’s salaries, the Developer’s bank interest payments, insurance costs, utilities, and some minor maintenance costs for “common areas.” During 1998 the Developer deposited over $67,700.00 into the Association account, and then withdrew that same amount from that account, as a “bookkeeping entry.” Due to the extensive commingling of funds and disregard of the separate nature of the Association and the Developer in the accounts maintained and controlled by the Defendants, the Court cannot determine how much of the Association’s funds were properly applied to the Association expenses.

Notwithstanding that Clay may have found it necessary for the Developer to make two loans to the Association, such evidence neither explained nor justified Clay and the Developer commingling funds and treating the Association as an alter ego, from which accounts they paid their non-Association debts. Such loans should have been treated at arm’s length like any other business loan with notes as evidence of indebtedness and a formal payment schedule to reduce the debt. Such issue regarding the mishandling of funds was relevant and material in the trial court’s findings as to why Hutchinson was terminated as Secretary of the Association for ignoring the corporate entities; why the Developer through the Association could not set fees and maintenance charges; impose fees and collect them; why it was impossible to determine what Association fees Clay and the Developer had paid; why it was impossible for the trial court to determine what funds belonged to the Association and to the Developer in the Association accounts; why it was impossible to determine what, if anything more, the Association owed to the Developer; and why the Developer’s financial claims could not be collected by suit or termination of services under the supersedeas order.

Defendants systematically “disregarded the separateness of legal entities!, i.e., Developer and Association,] by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987); accord Amason v. Whitehead, 186 Ga. App. 320, 322 (367 SE2d 107) (1988); Northwest Preferred v. Wil- Hams, 184 Ga. App. 145, 147 (2) (360 SE2d 910) (1987). Thus, the trial court did not err.

Decided November 23, 1999

Reconsideration denied December 14, 1999

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants.

6. The defendants contend that the trial court erred in setting $120 per lot per year as the water and sewer charge for the Association to pay to the Developer. We do not agree.

The public water system was designed and restricted to RV use only and was not for full-time residential service. Express limitations were set by the Developer and the County Health Department, i.e., no flush toilets, only marine toilets, no dishwashers, and no clothes washers. Therefore, water consumption was limited to cooking and bathing.

When the Developer began the Park, he charged lot owners $200 per lot per year for water, sewer, and use of the other amenities. Service and maintenance costs on the systems were assessed separately. The fee for water and sewer in the past has varied between $12 and $15 per lot per month or $144 and $180 annually per lot. In 1997, all lots other than the Developer’s were assessed for water and sewer totaling $25,531.84, which represented $122 per lot. In 1998, the Developer sought to charge $21 per lot per month for water and sewer. From the evidence the trial court determined as a matter of equity that a reasonable value for water and sewer per month per lot was $12 for the easement of use. See Rowland v. Woods, 259 Ga. 832, 834 (3) (388 SE2d 684) (1990). In calculating what was a fair and equitable charge for the quasi-easement for the water and sewer systems, the trial court looked to evidence as to what the Developer had accepted in the past for such services. Smallwood v. Conner, 118 Ga. App. 59 (162 SE2d 747) (1968). In making such calculations, the trial court looked also to the type of utility systems involved, the use limitations, authorized number, potential number of users within the authorization, historical maintenance costs, and the obligation to maintain the systems. Since there was evidence to support the findings of the trial court, appellate courts on review should not disturb such findings. Adams v. Crowell, 157 Ga. App. 576 (278 SE2d 151) (1981); Collins v. Brayson Supply Co., 157 Ga. App. 438 (278 SE2d 87) (1981).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Sorgen & Schindelar, Lawrence S. Sorgen, for appellees.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A2108.
    WILSON v. THE STATE.
    (526 SE2d 381)
   Eldridge, Judge.

Appellant Ricky Trenell Wilson appeals from his conviction for child molestation, aggravated sexual battery, aggravated child molestation, and statutory rape. We affirm.

The facts, viewed in the light most favorable to the verdict, are as follows: On February 11, 1998, a 13-year-old girl, K. B., and her 14-year-old friend, J. J., went to a grocery store near their Clayton County home. Wilson, whose nickname is “Pony,” approached the girls and offered them a ride in his car. The girls rode with Wilson to an apartment complex, where Wilson parked the car. Wilson was in the front seat with K. B., and J. J. was seated in the back. Wilson reached over the seat and fondled J. J.’s genitalia. He attempted to do the same with K. B., but she resisted. Soon thereafter, Wilson took the girls back to the shopping center. School admission records for both girls showed that they were absent that day.

On the morning of March 3, 1998, Wilson called K. B. and picked her up at home; K. B. was serving a school suspension. Wilson took K. B. to his apartment. K. B. sat in Wilson’s bedroom and played with his dog while Wilson took a shower. Wilson emerged naked from the bathroom and began masturbating in front of K. B. A few minutes later, after he put on his clothes, Wilson sat on the bed next to K. B. and began fondling her breasts under her bra. When K. B. told him to stop, Wilson called her a “bitch” and took her to the same shopping center as in the February incident.

Two days later, J. J. missed the bus to school and called Wilson for a ride. Wilson picked her up and took her to his apartment. J. J. testified that she sat in Wilson’s bedroom and played with his dog while he took a shower. While Wilson was still naked after the shower, he approached J. J. and made her perform oral sex on him. He then had sexual intercourse with her. When he was finished, Wilson got dressed and took J. J. to school. J. J.’s school attendance record showed that she was tardy that day.

A few days later, J. J.’s sister called her from college and noticed that J. J. sounded “uneasy.” After her sister kept “prying” for information, J. J. told her that she had had sex with an older man. The sister told J. J.’s mother, who then confronted J. J., who then admitted having oral sex and intercourse with Wilson. At trial, J. J.’s mother testified that she had noticed that J. J. had been very withdrawn during the days just prior to her sister’s phone call, and that J. J. seemed “relieved” when her family found out about the sexual assault.

J. J.’s parents told K. B.’s mother, who questioned K. B. about Wilson. K. B. told her mother that Wilson had fondled her in February and again in March. K. B.’s mother testified that she had noticed in February that K. B.’s attitude had changed and that her grades had dropped severely.

The parents of J. J. and K. B. contacted the police, who interviewed the girls. Both girls gave similar descriptions of Wilson’s apartment and bedroom, and the descriptions matched evidence obtained during a subsequent search of Wilson’s apartment and admitted as evidence at trial. K. B. described Wilson as being “dark skinned,” with braids, tattoos on his chest, and scratches on his side. J. J. indicated that Wilson had two tattoos on his chest and one on his arm. Detective Lilliana Stevens investigated the case, testified at trial, and took photographs of Wilson’s chest and arm, which were admitted into evidence at trial. The photographs showed two tattoos on Wilson’s chest and one on his right arm. Detective. Stevens did not recall seeing any other tattoos.

Wilson was arrested after he was found hiding in the attic of his apartment while police were executing a search warrant. A jury trial was conducted from November 30 through December 2, 1998. Wilson moved for a directed verdict at the end of the State’s evidence; the motion was denied. Wilson chose not to testify. Following his conviction, Wilson filed a motion for new trial, which was denied. He appeals. Held:

1. In his first enumeration, Wilson contends that the trial court erred in refusing to allow Wilson to display his torso to the jury. In making such request, Wilson was attempting to impeach the girls’ testimony by demonstrating that he had a large tattoo on his abdomen which neither girl described during the investigation or at trial. Wilson also noted in argument that the police investigator’s photograph showed only his upper chest and, therefore, did not show the abdominal tattoo. Defense counsel never made a proffer of proof for the record that an abdominal tattoo existed, when Wilson obtained such tattoo as a foundational fact, or how such evidence would be beneficial to him.

(a) The trial court ruled that Wilson could not display his torso to the jury unless Wilson took the stand and was subject to cross-examination as to when he obtained the abdominal tattoo. Based upon previous rulings by this Court, the trial court did not abuse its discretion in refusing to allow Wilson to present nontestimonial evidence, i.e., his torso, to the jury without being subject to oath or cross-examination in order to lay a foundation as to when the tattoo had been made and that it was present on the date of the crimes. See Wesley v. State, 228 Ga. App. 342, 344 (4) (491 SE2d 824) (1997); State v. Battaglia, 221 Ga. App. 283, 284 (1) (470 SE2d 755) (1996).

(b) Further, in order to display this type of evidence to the jury, a proper foundation must be laid, i.e., the party seeking to admit the evidence must demonstrate that it truly and accurately depicted the condition of the nontestimonial evidence at the time of the event at issue. See Miller v. State, 158 Ga. 697, 699 (5) (b) (124 SE 195) (1924); Johnson v. State, 158 Ga. 192, 198 (2) (123 SE 120) (1924); Chambers v. State, 159 Ga. App. 669 (284 SE2d 682) (1981); Curtis v. State, 141 Ga. App. 36, 39 (232 SE2d 382) (1977). The trial court has discretion in making the determination of whether a party has laid a sufficient foundation for introduction of the evidence, and such determination will not be disturbed on appeal absent an abuse of discretion. Cornell v. State, 265 Ga. 904, 905 (2) (463 SE2d 702) (1995); Miller v. State, supra at 698 (2).

In this case, when ruling on Wilson’s request to display his torso to the jury, the trial court specifically reasoned that such display would not establish “whether or not he added any [tattoos] after the events, whether he had them changed or removed or added.” In its subsequent order denying Wilson’s motion for new trial, the trial court stated that, “[t]he clear implication, if the defendant had been allowed to exhibit [the tattoo] to the jury, would have been that it was present during the incident in question without any testimony verifying that fact.” (Emphasis supplied.) The record, therefore, clearly shows that the trial court did not deny Wilson’s request because he would not waive his right against self-incrimination, but because Wilson failed to establish any foundation for the evidence. The trial court did not abuse its discretion in so ruling. See Mize v. State, 187 Ga. App. 418, 419 (1) (370 SE2d 525) (1988); see also Brown v. United States, 356 F2d 230, 233-234 (7) (10th Cir. 1966).

Detective Stevens observed Wilson’s naked chest and abdomen to take the photographs shortly after the arrest and did not observe such abdominal tattoo. Defense counsel never specifically asked Detective Stevens if there had been an abdominal tattoo. Thus, the evidence in the record did not show an abdominal tattoo at the time of the commission of the crimes, although one may have existed at the time of trial. Further, the trial court never precluded Wilson from presenting other foundation evidence that would have established that the tattoo was present prior to March 1998. This evidence could have included, inter alia, witness testimony, business records, or photographs. Wilson failed to present, or even proffer, such foundation evidence at trial. Therefore, he waived any complaints about the trial court’s exclusion of evidence of the abdominal tattoo. See People v. Perez, 216 Cal. App. 3d 1346 (265 Cal. Rptr. 400) (1989).

(c) Finally, Wilson sought to impeach K. B. and J. J. by disproving facts testified to by them regarding the tattoos seen. See OCGA § 24-9-82. What Wilson contended was that they did not see an “alleged” large tattoo on his abdomen; therefore, the girls did not see him nude. However, the failure to see the “alleged” tattoo would not necessarily impeach the testimony of the witnesses, because it does not contradict the witnesses’ testimony but may only demonstrate the incompleteness of it. This properly was an issue of witness identification as to weight and credibility for the jury. See Pace v. State, 235 Ga. App. 872, 873 (510 SE2d 617) (1999); Chergi v. State, 234 Ga. App. 548, 549 (2) (507 SE2d 795) (1998); see also Little v. State, 135 Ga. App. 772 (219 SE2d 19) (1975) (whether witness saw tattoos goes to weight and credibility).

2. Wilson also challenges the denial of his motion for a directed verdict of acquittal on the statutory rape conviction. When reviewing the denial of such motion on appeal, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995). This Court does not weigh the evidence or determine witness credibility, but determines only whether the evidence was sufficient for a rational trier of fact to find that Wilson was guilty beyond a reasonable doubt of statutory rape. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). “A motion for a directed verdict. . . should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cits.]” Watson v. State, 235 Ga. App. 381, 383 (1) (509 SE2d 87) (1998).

In attacking the sufficiency of the evidence of statutory rape in this case, Wilson contends only that the victim’s testimony was not corroborated, as required by OCGA § 16-6-3 (a). We disagree.

[I]t is well settled that it is not necessary that the [victim’s testimony] be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt, but only that the corroborating evidence tend to establish his guilt and be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. Moreover, the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.

(Citations, punctuation and emphasis omitted.) Dye v. State, 205 Ga. App. 781-782 (2) (423 SE2d 713) (1992). See also Simpson v. State, 234 Ga. App. 729, 730-731 (2) (507 SE2d 860) (1998); In the Interest of B. L. S., 264 Ga. 643, 644 (2) (449 SE2d 823) (1994). In particular, a victim’s “prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case.” (Citations and punctuation omitted.) Lee v. State, 232 Ga. App. 300, 302 (2) (501 SE2d 844) (1998). See also Turner v. State, 223 Ga. App. 448, 450 (2) (477 SE2d 847) (1996); Ogles v. State, supra at 93 (1) (b).

In this case, J. J. testified that Wilson picked her up before school, took her to his apartment, forced her to perform oral sex on him, had sexual intercourse with her, and then took her to school. J. J.’s mother and sister both testified that J. J. told them that she had had sexual intercourse with Wilson. In addition, the mother testified that J. J.’s demeanor changed dramatically after the rape. Finally, J. J.’s school attendance records confirm that she was tardy on the day of the rape, confirming her testimony regarding the timing and circumstances of the rape. This evidence was sufficient corroboration of the victim’s testimony. There was no error.

Decided November 30, 1999

Reconsideration denied December 14, 1999

Patricia F. Angelí, for appellant.

Ricky T. Wilson, pro se.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Wilson was acquitted of one count of child molestation and one count of aggravated sexual battery.

        As such, this case is distinguishable from the case cited by appellant, State v. Sanders, 691 SW2d 566, 569 (Tenn. App. 1984), in which the trial court’s refiisal to allow the defendant to demonstrate his height (a characteristic which cannot be altered) was based solely on the defendant’s refusal to testify.

       Since no foundation evidence was presented in this case, this Court will not consider whether it would have been reversible error for the trial court to refuse to allow Wilson to display his torso unless he subjected himself to cross-examination if other foundation evidence had been presented. Further, even if a proper foundation had been laid, it would be impossible for this Court to determine whether the error contributed to the judgment. See Letlow v. State, 222 Ga. App. 339, 343 (2) (474 SE2d 211) (1996). There are no photographs or descriptions of the abdominal tattoo in the record. Wilson failed to proffer any evidence to establish the size, shape, color, or nature of the tattoo at issue. In fact, the only evidence that such tattoo exists at all is Wilson’s assertion. See Daniels v. State, 248 Ga. 591, 596 (285 SE2d 516) (1981) (Smith, J., dissenting); see Little v. State, 135 Ga. App. 772 (2) (219 SE2d 19) (1975) (harmless error to allow the recall of an identification witness after defendant under oath exhibited tattoos all over his arms).

       As such, this case is distinguishable from United States v. Bay, 762 F2d 1314, 1315-1316 (9th Cir. 1984), cited by appellant, wherein the appellate court found that the trial court had not considered or ruled upon the foundation issue, so that the defendant had not waived his right to present a foundation for the excluded evidence. In remanding the case for a hearing, the appellate court held that, if the defendant could establish a foundation on remand, he was entitled to a new trial. Id. at 1317.

       Under OCGA § 16-6-3 (a), a “person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.”


text:
    A99A2260.
    TURNER v. THE STATE.
    (526 SE2d 95)
   Eldridge, Judge.

Marty Leon Turner was indicted for homicide by vehicle with reckless driving and DUI — less safe driver — as the underlying offenses in support thereof. The charges arose when Turner, while changing into the far left (fast) lane of southbound Interstate 285, cut his vehicle in front of another vehicle too closely. This maneuver caused the rear of Turner’s vehicle to strike the front end of the other car, driven by James Jordan. As a result, both cars hit the median wall twice. Ultimately, Jordan’s vehicle flipped over and slid several yards on its hood. Turner’s car came off the wall, spun across several lanes of traffic, and came to rest against the guardrail at the far right shoulder of the road. Turner was thrown from his car and suffered a head injury. During the course of the initial accident call and Turner’s subsequent removal to Kennesaw Hospital, a strong odor of alcohol was noted about Turner’s person. A medically necessary blood test ordered by the treating physician showed Turner’s blood alcohol level to be 0.16. Jordan died on the scene.

A Cobb County jury found Turner guilty of homicide by vehicle as charged and guilty of DUI as an unindicted lesser included offense thereof. He appeals, raising nine enumerations of error. Upon review, we affirm Turner’s conviction.

1. In his first enumeration of error, Turner claims a violation of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), in that, absent Miranda warnings, the trial court admitted a statement he made to the police while he was being treated in the hospital shortly after the collision. We find no error in such admission. “A person is not entitled to Miranda warnings as a matter of right, even though that person is a suspect, unless that person had been taken into custody or has been deprived of freedom of action in another significant way.” (Citations and punctuation omitted.) Moses v. State, 264 Ga. 313 (1) (444 SE2d 767) (1994); Syfrett v. State, 210 Ga. App. 185, 186 (435 SE2d 470) (1993). Here, Turner was not in police custody. The investigating officer testified that Turner’s involvement in the collision may have rendered him a “suspect,” but at the time of the hospital interview, the officer did not have probable cause to arrest or detain Turner and had no intention of doing so. The officer testified that at the time of his interview with Turner, no decision had been made with regard to Turner’s involvement in the collision:

You nevér jump to any conclusions. You look at all your evidence and make a decision from what you reconstruct and this collision happened on the 3rd. We did not complete the full investigation until after that was done. So that’s why we took the charges at that time.

From the record, it appears that any restriction on Turner’s freedom was due to his status as a hospital patient. In fact, Turner was not taken into police custody until a week after his statement to the investigator, following an intensive accident reconstruction process that created probable cause sufficient to issue a warrant for Turner’s arrest for vehicular homicide. The trial court concluded that no Miranda warnings were required prior to Turner’s statements to the investigating officer because Turner was not in custody at the time. This finding was not clearly erroneous, and thus, we hold that there was no error in admitting the statements at trial.

2. Pursuant to the Supreme Court of Georgia’s decision in Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996), Turner contends that the trial court erred “in refusing to accept a verdict of the jury as to the unindicted lesser offense of driving under the influence.” This contention is meritless.

Cantrell v. State involved a situation in which the trial court charged the jury that they may not even consider a lesser included offense until a verdict had been reached on the greater offense. Thereafter, apparently in contradiction to the trial court’s instructions, the jury returned and published a verdict of “guilty” on the lesser offense and wrote on the verdict form that they were unable to agree on a verdict as to the greater offense. The trial court refused to accept the verdict on the lesser offense and ordered the jury to resume deliberations on the greater offense. The next day, the jury found Cantrell guilty of the greater offense. The Supreme Court of Georgia found error on two bases: (1) The jury’s returned and published verdict of guilty on the lesser offense acted as an acquittal on the greater offense, and thus, further jury deliberations were precluded; and (2) the trial court’s charge to the jury was error because, in practical application, such charge improperly imposed a unanimity of verdict requirement as to the greater offense before the lesser could even be considered. Id. at 702-703.

The instant case, however, falls outside the proscriptions of Cantrell v. State for the following reasons:

(a) The trial court did not instruct the jury that they must first consider the greater offense and reach a verdict thereon before consideration of the lesser offense could commence. Instead, the trial court followed the pattern jury instruction and charged the jury:

If you do not believe beyond a reasonable doubt that the defendant is guilty of homicide by vehicle but do believe beyond a reasonable doubt that the defendant is guilty of driving under the influence of alcohol, then you would be authorized to find the defendant guilty of driving under the influence of alcohol.

We have found that such pattern jury instruction avoids the evils Cantrell v. State was designed to address, because such instruction “circumvents the possibility that jurors will believe a unanimous acquittal is required before consideration of the lesser offense.” Kun-selman v. State, 232 Ga. App. 323, 325 (501 SE2d 834) (1998). See also Cantrell v. State, supra at 703 (finding “pattern jury instructions do not require unanimity with respect to an indicted offense before consideration of an included offense”).

(b) The trial court did not reject a returned verdict of “guilty” as to the lesser included offense of DUI in order to compel the jury to first reach a unanimous verdict on the greater offense of vehicular homicide. In this case, the jury sent out a note during deliberations indicating that they had reached an unspecified agreement on the lesser included offense of DUI, but were in disagreement as to the additional elements of the vehicular homicide count, which had DUI and reckless driving as the underlying offenses. The trial court gave an Allen charge. Eventually, the jury returned a verdict on both DUI and homicide by vehicle. Contrary to Turner’s contentions, Cantrell v. State does not stand for the proposition that a trial court must stop all deliberations and require a jury to return a verdict on a lesser included offense — which included offense is, necessarily, an element of the greater offense from which it springs — thereby precluding all further deliberations on the greater offense. Obviously, a jury may agree on some elements of an offense but require more deliberative time on other elements. There was no indication here that the jury was hopelessly deadlocked as to the greater offense.

3. Again invoking the proscriptions of Cantrell v. State, Turner claims three additional ways in which the trial court’s charge to the jury allegedly imposed a unanimity of verdict requirement:

(a) While recognizing that “he is swimming upstream on this issue,” Turner “feels constrained to submit. . . that the pattern jury charge does require unanimity with respect to the indicted offense.” As we have in the past, we disagree with this contention. Kunselman v. State, supra at 325. See also Cantrell v. State, supra at 703. Turner fails to recognize that what is proscribed by the Court’s holding in Cantrell v. State is a requirement of unanimity of verdict on a greater offense before a lesser included offense may even be considered. Id. at 702, n. 2. The pattern jury instructions do not impose any requirement with regard to consideration of offenses.

(b) Turner contends that the following charge of the trial court “strongly suggests a requirement of a unanimous verdict”:

If you find the defendant was intoxicated to the extent that he was a less safe driver, but that the negligent actions of the victim were such that they contributed or caused his death, irrespective of the defendant’s intoxication, then and in that event it would be your duty to acquit the defendant of the charge of vehicular homicide. However, you would be authorized to convict the defendant on the charge of driving under the influence of alcohol.

We do not agree with Turner’s contention. Such charge has nothing to do with a sequential consideration of offenses or a unanimity of verdict requirement. Moreover, Turner requested the charge, and it was given pursuant to his request. “(A) defendant cannot complain of a verdict which was brought about by a charge which he had requested.” (Citation and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

(c) Turner contends that the following portion of the Allen charge given by the trial court “impressed upon the jury that their verdict on the lesser included offense would not be accepted absent their first reaching a unanimous verdict as to the greater offense”:

[T]he Court deems it proper to advise you further in regard to the desirability of agreement, if possible. ... It is the law that a unanimous verdict is required. While this verdict must be the conclusion of each juror and not the mere acquiescence in order to reach an agreement, it is still necessary for all jurors to examine the issues in question submitted with candor and fairness and with a proper regard for and deference to the opinions of others.

Simply because the word “unanimous” is contained in the above-referenced portion of the trial court’s charge does not in any way imply that the jury must reach a unanimous verdict on the greater offense before considering the lesser included offense, as proscribed by Cantrell v. State. As the charge indicates, a “unanimous verdict as to the whole” is required in a criminal trial. Id. at 703. Thus, the trial court’s charge was a correct statement of the law, and we find Turner’s contentions to the contrary to be meritless.

4. Next, Turner contends that the medical records of his hospital stay were improperly admitted into evidence under the business records exception to the hearsay rule, because the State failed to make an adequate showing of the chain of custody of the blood sample taken from Turner. Turner claims preservation of this issue on the basis of an objection made to the tender of a computer printout of the results of his blood test, because the State’s witness did not have personal knowledge of the document’s origin: “Your Honor, we would object to that specific document being tendered into evidence. She stated she has no personal knowledge of the production of that document.” “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground.” (Citations and punctuation omitted.) Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). On the basis of the objection to which Turner directs our attention, we consider as waived the instant contention regarding the chain of custody of Turner’s blood sample. Newton v. State, 226 Ga. App. 501, 503 (3) (486 SE2d 715) (1997).

5. Turner’s treating physician testified as an expert for the State regarding Turner’s blood alcohol content (“BAC”) and the effects of such BAC upon one’s ability to drive a motor vehicle. On cross-examination, the defense asked a number of hypothetical questions involving the effects of a combination of alcohol and cocaine on one’s ability to drive. Thereafter, on re-direct, the State asked the doctor if he had requested that Turner’s blood be tested for the presence of cocaine; when the doctor replied, “No,” the State then asked, “So you don’t know if in addition to the .16 blood alcohol level the defendant had cocaine in his blood?” The doctor replied, “No, I did not.” The defense objected to the testimony and moved for mistrial, claiming that the State’s questions implied that Turner was using cocaine prior to the collision. The trial court sustained the objection but denied the motion. Turner claims error in the denial of his motion for mistrial.

We have reviewed the testimony in this case. Thus, we are aware that by questioning the State’s expert witness about the effects of cocaine on the ability to drive, the defense was attempting to elicit evidence that would prove favorable when, during the defense’s case, evidence came in that the victim ingested cocaine prior to the collision. However, the risk of such premature inquiry is that, at the time of the defense’s questions, there was absolutely no evidence before the jury of anyone’s use of cocaine at any time; cocaine had not been mentioned by any witness in conjunction with any issue in the case. Neither the hypothetical questions nor the answers thereto factually established who might have been using cocaine in this case. Accordingly, the prosecutor’s subsequent question to the doctor as to whether he tested Turner for cocaine became relevant. “[R]elevant information is not rendered inadmissible because it may incidentally place a defendant’s character in issue. [Cit.]” Roberts v. State, 208 Ga. App. 64, 66 (2) (430 SE2d 175) (1993).

We agree with the trial court’s sustaining of objection to the prosecutor’s subsequent question, i.e., regarding the doctor’s knowledge of whether or not Turner had cocaine in his blood in addition to a 0.16 BAC. Such question called for speculation. However, we find no error in the trial court’s denial of Turner’s motion for mistrial based thereon. “Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Cowards v. State, 266 Ga. 191, 194 (3) (c) (465 SE2d 677) (1996). Considering (1) Turner’s part in raising the issue of cocaine use prior to establishing any factual basis therefor; (2) the lack of any evidence linking Turner to cocaine use; and (3) the subsequent evidence that it was the victim who had ingested cocaine prior to the collision, we find that the trial court’s denial of Turner’s motion for mistrial did not deny him a fair trial. There was no abuse of discretion.

6. While recognizing that each of the following charges to the jury “apparently was a slip of the tongue,” Turner still claims reversible error thereon: (a) “[T]he State is not required to prove the guilt of the accused beyond all reasonable doubt”; and (b) “Our law says that any person be found guilty of any crime commit the by misfortune or accident where there was no criminal scheme undertaking or criminal negligence.”

Since it is undisputed that the allegedly erroneous instructions were the result of a slip of the tongue, we need determine only “whether [they], when considered in light of the whole charge, may have misled or confused the jury in this case. . . . [Cits.]” White v. State, 233 Ga. App. 276, 278 (503 SE2d 891) (1998).

(a) The trial court instructed the jury repeatedly, both in a pretrial charge and in its final charge, that “the burden of proof rests on the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Viewing the charge as a whole, we find that the trial court’s instruction about which Turner complains neither confused or misled the jury on the burden of proof nor in any way contributed to the verdict. White v. State, supra.

(b) The initial charge on misfortune or accident cited as error by Turner appears to this Court to be a transcription error, as opposed to a “slip of the tongue” made by the trial court during its charge to the jury. Notwithstanding, following such initial instruction, the trial court thoroughly charged the jury on the definition of accident or misfortune and instructed them: “If you find from the evidence in this case that the incident which is the subject matter of this case, occurred as a result of misfortune or accident and not as a result of criminal negligence then it would be your duty to acquit the defendant.” Under such circumstances, viewing the charge as a whole, we find that “the error caused by the trial court’s slip of the tongue was harmless, and as such, does not warrant reversal.” (Citations and punctuation omitted.) White v. State, supra at 278 (3).

7. We have reviewed the trial court’s charge limiting the jury’s consideration of similar transaction evidence. We find no error. The trial court charged the jury that:

[Y]ou are strictly limited in your consideration of the evidence as to the course of conduct and bent of mind elements of the offenses charged in the indictment. . . . Former evidence shall be considered by you only for the purposes of explaining course of conduct, bent of mind and the absence of mistake.

Compare Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999) (holding the failure to limit jury’s consideration of similar transaction evidence to the purpose for which admitted was error). Here, the trial court charged the jury as to the limited purposes and use of such evidence in substantial conformity with the pattern jury instruction provided in the Council of Superior Court Judges Suggested Pattern Jury Instructions. See Salters v. State, 238 Ga. App. 45, 46 (517 SE2d 593) (1999). Turner does not show that he requested the trial court to give any other instruction as to the law regarding the purposes and use of similar transaction evidence. “Under such circumstances, defendant cannot complain that the trial court should have given a different charge on this subject. See State v. Belt, 269 Ga. 763 (505 SE2d 1) [(1998)].” Id. at 46 (3). See also State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998).

8. We find no error in permitting the State’s expert witness to testily as to what effect a 0.16 BAC has on a person’s ability to drive a motor vehicle. The qualitative relationship between a quantitative BAC and driving ability is beyond the ken of the average juror. See, e.g., Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994). Further, on cross-examination, Turner’s counsel asked this same State’s witness the same type of question about which he now complains: “[Defense counsel:] Now, what about ethyl alcohol? . . . [W]hat effect, if any, would that have on a person?” A defendant who brings out the same evidence to which he objects cannot be heard to complain. Mathis v. State, 222 Ga. 351, 353 (2) (149 SE2d 812) (1966).

We also find no error in permitting the State’s accident reconstruction expert to testify that, in his opinion, the collision at issue could not have happened in any way other than that to which he testified. Such testimony summarized the result of the expert’s reconstruction process, and as such, “it involved a conclusion that lay jurors would not ordinarily be able to draw for themselves, without some special experience or knowledge in accident reconstruction.” Bacon v. State, 178 Ga. App. 546, 547 (2) (343 SE2d 774) (1986).

9. Turner alleges two instances of prosecutorial misconduct during the State’s closing argument. First, Turner contends that the prosecutor impermissibly shifted the burden of proof to the defense and commented on Turner’s right to remain silent by arguing to the jury, “He doesn’t have any evidence presented to you that the defendant did not cause this accident.” This contention is meritless. The statement, on its face, is directed toward the merits of the evidence that Turner presented. The State may argue that evidence presented by the defense failed to rebut the State’s case. Thornton v. State, 264 Ga. 563, 567 (4) (a) (449 SE2d 98) (1994).

Turner also claims reversible error in the prosecutor’s argument that Turner was “guilty of killing James Jordan.” Turner objected to the argument and moved for mistrial, which was denied. Turner then asked the trial court to instruct the jury to disregard the statement. The trial court did so. Turner did not renew his motion for mistrial. Thus, “[e]ven if the prosecutor’s statement constituted error, [Turner] failed to preserve the issue because he did not thereafter renew his motion for mistrial. . . . [Cit.]” D’Angelo v. State, 223 Ga. App. 558, 560 (2) (479 SE2d 384) (1996).

Decided November 22, 1999

Reconsideration denied December 14, 1999

Julian M. Treadaway, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, P. J., concurs. Barnes, J., concurs in judgment only.

       The evidence is viewed in a light most favorable to upholding the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       “Verdicts acquire their legality from return and publication. [Cit.]” Cantrell v. State, supra at 703, n. 4.

       See Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       A review of the record in this case shows what appear to be numerous errors in the transcription of the trial of the case.


author: Phipps, Judge.

text:
    A99A1708.
    TAYLOR v. THE STATE.
    (526 SE2d 910)
   Phipps, Judge.

As part of a negotiated plea, Michael J. Taylor pled guilty to the May 18, 1998 armed robbery of a pizza restaurant. Taylor appeals the trial court’s ruling that it lacked discretion to sentence Taylor under OCGA § 17-10-1 (b), which would allow the parole board to consider him for parole prior to the completion of his ten-year sentence. Because we find that the mandatory minimum sentence requirements applicable to serious violent felonies (as set forth in OCGA § 17-10-6.1) are not altered by or in conflict with OCGA § 17-10-1 (b), we affirm.

Prior to sentencing, Taylor’s counsel filed a sentencing memorandum, requesting that the trial judge sentence Taylor under OCGA § 17-10-1 (b) and authorize the State Board of Pardons & Paroles to consider parole for Taylor prior to the completion of any minimum sentencing requirement otherwise imposed by law. The judge accepted the negotiated plea but ruled that she had no discretion to impose a sentence under OCGA § 17-10-1 (b) because of the mandatory minimum sentence requirements set forth in OCGA § 17-10-6.1.

Pursuant to OCGA § 17-10-1 (b),

[t]he judge, in fixing the sentence as prescribed in subsection (a) of this Code section, may make a determination as to whether the person being sentenced should be considered for parole prior to the completion of any requirement otherwise imposed by law relating to the completion of service of any specified time period before parole eligibility. In the event that the judge so determines, he may specify in the sentence that the person is sentenced under this subsection and may provide that the State Board of Pardons and Paroles, acting in its sole discretion, may consider and may parole any person so sentenced at any time prior to the completion of any minimum requirement otherwise imposed by law, rule, or regulation for the service of sentences or portions thereof. The determination allowed in this subsection shall be applicable to first offenders only.

Subsection (a) provides that the discretion afforded the judge to suspend or probate all or any part of the sentence shall be subject to the provisions of OCGA § 17-10-6.1.

OCGA § 17-10-6.1 (b) provides:

[n] otwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony[, including armed robbery, as defined by OCGA § 16-8-41,] shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles. No person convicted of a serious violent felony . . . shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

Taylor contends that OCGA §§ 17-10-1 (b) and 17-10-6.1 conflict. He argues that OCGA § 17-10-1 should prevail because it was amended after OCGA § 17-10-6.1 was enacted and after OCGA § 17-10-6.1 was amended during the 1998 legislative session. According to Taylor, the legislature acted with full knowledge of existing law and could have amended OCGA § 17-10-1 (b) if it had intended to reduce or limit the authority granted the trial court by that provision.

We find that OCGA § 17-10-1 (b) does not conflict with OCGA § 17-10-6.1. OCGA § 17-10-1 (b) allows the judge some discretion in fixing the sentence as prescribed in subsection (a) of this Code section. Subsection (a) expressly subjects the discretion afforded the sentencing court to the provisions of OCGA § 17-10-6.1, which precludes any reduction of the mandatory minimum sentence for any person convicted of a serious violent felony. Thus, the trial court has no discretion to alter or to allow the parole board to alter the mandatory minimum sentence of ten years for any serious violent felony, including armed robbery.

Decided December 14, 1999

Jackson & Schiavone, George T. Jackson, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Even if we accepted Taylor’s argument that the statutes are in conflict and the most recently amended statute prevails, the result would not change. OCGA § 17-10-6.1 was last amended effective March 27, 1998. OCGA § 17-10-1 was last amended effective July 1, 1998. The law as it exists at the time of the offense determines the penalty that may be imposed. As of the date of the offense (May 18, 1998), the 1998 amendment to OCGA § 17-10-1 was not yet effective. Thus, for purposes of setting Taylor’s sentence, the statute most recently amended was OCGA § 17-10-6.1.

Judgment affirmed.

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

       Ga. L. 1998, p. 180, § 2.

       Ga. L. 1998, p. 842, § 6.

        Hicks v. State, 228 Ga. App. 235, 237 (1) (b) (494 SE2d 342) (1997).


author: Blackburn, Presiding Judge.

text:
    A99A1745.
    HEARD v. HART.
    (526 SE2d 908)
   Blackburn, Presiding Judge.

Lavon Marcellus Heard appeals the dismissal of his personal injury action against Sharman D. Hart, contending that the trial court erred by finding that he had not diligently served Hart. For the reasons set forth below, we affirm.

Heard and Hart were involved in a two-car collision on May 8, 1993. On March 31, 1995, Heard, through his original counsel, filed suit against Hart to recover for personal injuries and property loss caused by Hart’s negligence. Hart was served on April 3, 1995. On May 8, 1995, the two-year statute of limitation on Heard’s claims expired. See OCGA § 9-3-33. Then, on April 17, 1997, an associate of Heard’s original attorney took Hart’s deposition, in which she indicated that she had recently been married and provided her new last name and her current address. Later, Heard, through his original attorney, dismissed his timely filed action without prejudice on January 14, 1998. Through his present counsel, Heard refiled his case within six months pursuant to the renewal statute, OCGA § 9-2-61, on July 2, 1998.

In the summons form which accompanied the complaint in the refiled lawsuit, Heard’s attorney provided Hart’s address as it existed prior to her marriage, despite the fact that she held a transcript of Hart’s deposition which indicated that Hart had married since the accident, that her new last name was Folds, and that her new address was 2722 Lower Big Springs Road. Based on the information provided by Heard’s attorney, the sheriff’s department attempted to serve Hart on July 2, 1998, but discovered that she no longer lived at the address provided on the summons, which was, in fact, her father’s address. Hart’s father explained to the sheriff’s department that his daughter had married and moved to another address, which he mistakenly identified as 1722 Lower Big Springs Road. No such address exists. The representative of the sheriff’s department mistakenly recorded Hart’s husband’s last name as Floyd. Because of these mistakes, the sheriff’s department was unable to serve Hart and so notified Heard’s present attorney on July 2,1998. On September 29, 1998, Mr. Hart advised the sheriff’s office of his earlier mistake and provided the sheriff’s department with the correct information which was relayed to Heard’s counsel. Heard’s attorney then provided the sheriff’s department with an accurate return of service form and requested service on Hart. Hart was finally served with the renewed suit on October 9, 1998. On October 27, 1998, Hart filed an answer to Heard’s complaint requesting, among other things, that his suit be dismissed for failure to perfect service in a diligent manner.

A renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit. Since service of the renewal action in this case was not perfected within the six-month renewal period, [Heard] would have the burden of showing that [he] acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.

(Citations and punctuation omitted.) McClendon v. 1152 Spring St. Assoc. &c., 225 Ga. App. 333, 336 (484 SE2d 40) (1997).

OCGA § 9-11-4 (c) requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.

(Citations and punctuation omitted.) Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997).

In this case, the defendant was not served until approximately three months after the renewed action was filed because Heard’s attorney provided the sheriff’s department with an erroneous address, despite the fact that she held a deposition containing the correct address. See Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989). This deposition was in Heard’s record for over a year before his renewal action was filed, and Heard’s attorney would have known Hart’s correct address simply by reading this important document.

Heard’s attorney argues that she should be excused from this oversight because (1) her mail was being tampered with and not being delivered, thereby depriving her of notice that summons had not appropriately issued and (2) she relied on Hart’s responses to interrogatories given in May 1995, which were never appropriately supplemented. The trial court found that Heard had not been diligent in perfecting service under these facts. The inability of the sheriff to serve Hart does not excuse Heard’s failure. This Court has held that “[t]he burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible.” (Punctuation omitted.) Strickland v. Home Depot, 234 Ga. App. 545, 546 (507 SE2d 783) (1998).

Therefore, we cannot say that the trial court abused its discretion in finding that Heard was not diligent in serving Hart and in dismissing this case.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided December 14, 1999.

Christopher J. McFadden, Christina D. Wagner, for appellant.

Lewis, Taylor, Todd & Dixon, John M. Taylor, for appellee.


text:
    A99A1941.
    GEORGIA-PACIFIC CORPORATION v. TALBOT COUNTY BOARD OF TAX ASSESSORS.
    (526 SE2d 914)
   Phipps, Judge.

This is an ad valorem tax dispute involving 50 tracts of land owned by Georgia-Pacific Corporation in Talbot County. These tracts are classified by the State Revenue Department as woodlands and were appraised by the Talbot County Board of Tax Assessors at an average value of $561 per acre in 1998. Georgia-Pacific appealed these valuations without success to the Talbot County Board of Tax Assessors and Board of Equalization. The Board of Tax Assessors found the valuations to be in line with those of comparable properties.

In an appeal by Georgia-Pacific to the superior court, the case was tried before a jury. Georgia-Pacific sought to admit as evidence of comparable properties 24 privately owned woodland tracts appraised by the Board of Tax Assessors at an average value of $371 per acre. At the commencement of trial, the court granted the Board’s motion in limine to exclude evidence concerning 19 of these 24 tracts on the ground that they are not comparable to Georgia-Pacific’s properties because they are classified as “bona fide conservation use property” under OCGA § 48-5-7.4. Georgia-Pacific appeals judgment on a jury verdict leaving the valuations of its tracts unchanged.

To qualify as bona fide use conservation property, a tract cannot be more than 2,000 acres and must either be (1) environmentally sensitive property or (2) devoted to subsistence farming, or commercial production of agricultural products or timber, and owned by (or for the benefit of) individual citizens, nonprofit organizations, or family-owned farm entities. The owner must also agree by covenant with the appropriate taxing authorities to maintain the property in bona fide qualifying use for a ten-year period, and the property must be so maintained. If this is done, the property then qualifies for a “current use assessment” computed in accordance with a table of values established by the Commissioner of the Department of Revenue under OCGA § 48-5-269, and the property is assessed for property tax purposes at 40 percent of its current use value rather than fair market value. If the covenant is breached, a penalty is supposed to be imposed based on twice the difference between the amount paid under the current use assessment and the amount that would have been paid under a fair market value assessment. Although property subject to a current use assessment must be separately classified from all other property on the county tax digest, the taxing authority must continue to provide the taxpayer with annual notification of any change in fair market value.

At trial, testimony given by Thomas Bussey, Chairman and Chief Appraiser of the Talbot County Board of Tax Assessors, showed that the Board does not calculate “current use value” and “fair market value” for conservation use properties as those terms are used in OCGA § 48-5-7.4. Instead, the Board determines the fair market value of such properties in the same manner that the fair market value of real property is generally determined, i.e., by taking into consideration all pertinent factors including the covenants imposing use restrictions. But Bussey further testified that, as a rule of thumb, the Board reduces the valuation of conservation use properties by a factor of 25 percent as a result of these restrictions.

Initially, the court agreed to admit evidence of the Board’s valuations of the conservation use properties so long as it was shown that these valuations are arrived at by applying a 25 percent reduction factor as a result of the existence of the use covenants. Without explanation, the court then reversed itself and granted the Board’s motion in limine stating its agreement with the Board that “it’s apples and oranges.” Held:

The 19 privately owned tracts qualify as conservation use properties because they are each less than 2,000 acres, devoted to production of timberland, and owned by individuals. The 50 tracts owned by Georgia-Pacific are also timberlands and less than 2,000 acres each but, because of their corporate ownership, cannot qualify for conservation use. For comparability purposes, the privately owned tracts differ from the corporate tracts only because they have so qualified and are thus subject to conservation use restrictions. Consequently, the value which the privately owned tracts would have absent the restrictions has relevance in this case. Because OCGA § 48-5-7.4 requires a determination of the values of conservation use properties independent of the use restrictions, and because the methodology employed by the Talbot County Board of Tax Assessors allows such values to be extrapolated from the valuations appearing in the Talbot County tax digest, the trial court abused its discretion in granting the Board’s motion in limine.

Decided December 14, 1999.

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellant.

William C. Moore, for appellee.

Judgment reversed.

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

       OCGA § 48-5-7.4 (a).

       OCGA § 48-5-7.4 (d), (g).

       OCGA § 48-5-7.4 (v).

       OCGA § 48-5-7 (a), (c.2).

       OCGA § 48-5-7.4 (1).

       OCGA § 48-5-7.4 (r).

       OCGA § 48-5-7.4 O') (2).

       OCGA § 48-5-2 (3) (B) (i)-(iv).

       See generally Woodall v. Rivermont Apts., L.P., 239 Ga. App. 36 (520 SE2d 741) (1999).


author: Ellington, Judge.

text:
    A99A2519.
    KIDD v. THE STATE.
    (526 SE2d 916)
   Ellington, Judge.

Following a jury trial, Andrew Roy Kidd was convicted of burglary, OCGA § 16-7-1, and possession of tools for the commission of crime, OCGA § 16-7-20. Kidd appeals from the trial court’s denial of his motion for new trial, challenging the denial of his motion for mistrial and arguing the general grounds. For the reasons which follow, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to support the verdict, the evidence reveals that an employee of Silver Platter Catering Company arrived for work to find a U-Haul truck backed up to the rear door of the business. The employee saw a man run out of the door and jump into the truck. As the truck drove away, the employee followed in her car and called the police using a cellular phone. The employee followed the truck continuously until the police stopped it about 25 minutes later. Kidd was seated in between two other men in the cab of the truck. On Kidd’s lap was a box containing a mixer taken from Silver Platter that morning. The police found several tools commonly used to commit burglaries in the cab of the truck and other items stolen from Silver Platter in the back of the truck. Kidd admitted being in the truck at the scene of the burglary.

Decided December 14, 1999.

Robert A. Maxwell, for appellant.

1. Kidd contends that the verdict was contrary to the law and to the evidence because he did not enter the burglarized premises and there was no evidence he intended to participate in the burglary.

While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) Mosier v. State, 223 Ga. App. 75, 76 (476 SE2d 842) (1996). Although Kidd denied having the box with the mixer in his lap, the jury was authorized to believe the officer’s testimony that Kidd was holding the box. Elliott v. State, 193 Ga. App. 49, 50 (387 SE2d 18) (1989). From Kidd’s admitted presence at the scene of the burglary and his physical possession of stolen property, the jury could infer that Kidd intended to participate in the burglary. Mosier, 223 Ga. App. at 76. Reviewing the evidence in the light most favorable to the jury’s verdict, this Court finds that the evidence was sufficient to persuade a rational trier of fact that Kidd was guilty of burglary beyond a reasonable doubt. Jackson, 443 U. S. at 307.

2. Kidd contends that the trial court abused its discretion in denying his motion for a mistrial. Kidd contends that his co-defendant’s character was impermissibly placed in issue. Although the co-defendant’s counsel moved for a mistrial, however, Kidd’s own counsel did not join the motion or separately seek a mistrial on the basis that the co-defendant’s character had been placed in issue. Accordingly, the issue was not preserved for review with regard to Kidd’s conviction. Ashford v. State, 271 Ga. 148, 149 (2) (518 SE2d 420) (1999).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

Patrick H. Head, District Attorney, Frank R. Cox, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    A00A0022.
    A00A0023.
    JOHNSON v. THE STATE. MOSBY v. THE STATE.
    (526 SE2d 903)
   McMurray, Presiding Judge.

A Richmond County jury convicted co-defendants Shawn Joshua Johnson and Bryan Andrew Mosby of two counts of criminal attempt to commit armed robbery (OCGA §§ 16-4-1; 16-8-41). They now appeal upon the trial court’s denial of their motions for new trial. With a single exception, Johnson and Mosby enumerate identical claims of error. As a consequence, we have consolidated their cases for disposition on appeal. Held:

The evidence of record shows that Johnson, Mosby and two others, Lionel Hall and State’s witness Stephen Fromm, were foiled in two criminal attempts to commit armed robbery, one committed in the late evening of May 12, 1998, and the second in the early morning hours of the following day. In the first of these attempts, Johnson, Mosby, Fromm and Hall fled as their victim, Regis Vann Hicks, backed his vehicle away from them at an Augusta area bank’s drive-in automated teller machine. The four had surrounded Hicks’ vehicle — Fromm, driving a black Neon belonging to Sue Gross, blocked Hicks’ vehicle to the front while Johnson, Mosby and Hall, wearing masks or bandannas and wielding at least one BB pistol, fanned out around his car. Mosby slashed the front tires of Hicks’ vehicle while Johnson or Hall, pointing a BB gun at Hicks, demanded the money that the four believed Hicks had withdrawn from the ATM as the other stood guard. In the second, the four fled once more as they attempted to rob Gregory Tyler at gunpoint in the driveway of his home — this because Tyler’s wife turned on the porch light and announced she was calling the police. Shortly thereafter, Johnson, Mosby, Fromm and Hall were arrested after being sighted in the vicinity of a nearby hotel and briefly attempting to run. Fromm explained that the group had “stopped there just to look around to see what we could get . . . because we couldn’t come back empty handed[]” as “[w]e would have gotten beat down” by their putative leader, Steve Barnes.

Case No. A00A0022

1. Johnson enumerates that the trial court erred in denying his motion for mistrial, arguing that the State’s attorney improperly commented upon his right to remain silent.

Johnson testified in his own defense, indicating, among other things, that he declined a police request to make a statement on the charges against him after his arrest. On cross-examination, the State’s attorney pertinently questioned Johnson as follows: “Q: And it’s also your testimony that you were approached by the police department in connection with giving a statement, is that correct? A: Yes, I was. Q: And you declined at that time to give a statement, didn’t you.” (Emphasis supplied.) Johnson’s defense counsel objected to this question and moved for a mistrial. In the hearing out of the presence of the jury which followed, the superior court sustained the objection but denied the motion for mistrial upon the State attorney’s argument that the question was proper as within the scope of Johnson’s testimony on direct. Johnson’s attorney sought no curative instruction as to the complained-of question, and none was given.

In Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839), the Supreme Court of Georgia held that “comment upon a defendant’s silence in criminal cases is far more prejudicial than probative and such comment by the state is not permitted.” Bruce v. State, 263 Ga. 273, 274 (3) (430 SE2d 745). While the trial court refused to declare a mistrial in this case and gave no curative instruction, the trial court did caution the State’s attorney against any further questions and comments regarding Johnson’s post-arrest silence, and Johnson did not answer the question of which he complains. Watkins v. State, 206 Ga. App. 701, 706 (4) (426 SE2d 238). “ ‘Where an objected-to question is not answered by the witness there is no harmful error. (Cit.)’ [Cit.]” Id. at 706 (6). Johnson’s failure to request a curative instruction in the instant circumstances is consistent with the waiver of any Fifth Amendment concern implicit in his voluntary testimony regarding his refusal to make a statement to the police on direct. See Fairbanks v. State, 225 Ga. App. 666, 669 (2) (484 SE2d 693). Moreover, Johnson raises the trial court’s failure to give a curative instruction for the first time on appeal. It is impermissible to acquiesce in a ruling of the trial court and be heard to complain later. Brown v. State, 225 Ga. App. 201, 203 (3) (483 SE2d 641). “Whether a mistrial is necessary to protect the defendant’s right to a fair trial is a decision largely within the discretion of the trial court. [Cit.]” Burton v. State, 225 Ga. App. 217, 218 (2) (483 SE2d 658). Under the foregoing circumstances and in light of the overwhelming evidence of Johnson’s guilt of record, the trial court did not abuse its discretion in refusing to grant a mistrial. Id.

Case Nos. A00A0022 andA00A0023

2. Johnson and Mosby contend that the trial court erred in denying their motions in limine to disallow the testimony of State’s witness Fromm and Deputy James Michael Godowns at trial.

(a) State’s witness Fromm. Johnson and Mosby argue that the State’s attorney’s failure to give them Fromm’s statement ten days before trial and the need to interview Barnes as implicated by such statement in the offenses of which they stood accused required that their motion be granted for prejudice and bad faith shown under OCGA §§ 17-16-4; 17-6-6; 17-6-7; 17-6-8.

The record discloses that the State provided Johnson and Mosby a copy of State’s witness Fromm’s taped statement on the day it was taken, four days before trial. A copy of the transcript thereof was provided to Johnson and Mosby the following morning, three days before trial. At trial, neither Johnson nor Mosby sought a recess to interview Fromm. Violation of the OCGA § 17-16-8 (a) witness list rule requiring the State to provide a defendant the names of its witnesses not later than ten days before trial is not here implicated for impossibility. However, even had the rule been violated, there is no indication in the facts before us of surprise or bad faith resulting in prejudice to Johnson or Mosby. Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219). “The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview. [Cit.]” Id.

Neither is there any indication of prejudice associated with Fromm’s testimony for the superior court’s refusal to permit Johnson and Mosby to interview Barnes, their alleged leader. Fromm’s testimony made it clear that Barnes’ only involvement in the instant offenses was to order them to “go out and get some money.” In effect, Barnes gave them no more than the mission, leaving the means to Johnson, Mosby and their accomplices. There is nothing to the contrary otherwise of record. Under these circumstances, Barnes’ testimony would have been irrelevant. OCGA § 24-2-1. Accordingly, these claims of error are without merit.

(b) Deputy Godowns. There was no violation of the witness list rule under OCGA § 17-16-8 (a) from the perspective of surprise. Mize v. State, 269 Ga. at 653 (7), supra. Though Deputy Godowns’ name was not on the State’s witness list, it is undisputed that his name appeared on multiple documents in the case files. There is no claim that defense counsel were denied access to such files before trial. Further, neither Johnson nor Mosby expressed surprise or sought an opportunity to interview Deputy Godowns when they were made aware that he would appear as a witness at trial. Id. Additionally, Deputy Godowns’ testimony was cumulative of that provided by other sheriff’s deputies and would have been harmless for this reason in any event. See Hayes v. State, 261 Ga. 439, 442 (4) (405 SE2d 660). The superior court did not err in allowing Deputy Godowns to testify in these circumstances.

3. The trial court did not err in allowing Fromm’s tape-recorded statement to be played to the jury. A witness’ prior consistent statement is admissible where, “ £(1) the veracity of (the) witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.’ Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998).” Carter v. State, 238 Ga. App. 708, 710 (2) (520 SE2d 15). Johnson and Mosby argue that Fromm’s veracity was not in issue in that there was no “specific showing or holding” to that effect. However, a witness’ veracity may be placed in issue “expressly or impliedly.” Cuzzort v. State, 254 Ga. 745, 746 (334 SE2d 661) (Bell, J., concurring specially); McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666).

The record reflects that Johnson and Mosby impliedly attacked the credibility of State’s witness Fromm as having been disciplined as a soldier and as a witness who was testifying for the State as a part of a negotiated plea bargain. The remaining Woodard requirements were also satisfied, as Fromm testified at trial and was available for cross-examination. This claim of error is therefore without merit.

4. Johnson and Mosby further enumerate that the trial court erred in charging the jury that the testimony of one accomplice may be corroborated by the testimony of another in that no witness’ testimony corroborated that of State’s witness Fromm.

A trial court may charge the law on an issue if there is some evidence, however slight, upon “which a legitimate process of reasoning can be carried. Sapp v. Johnson, 184 Ga. App. 603, 605 (362 SE2d 82).” Mann v. Anderson, 206 Ga. App. 760, 762 (1) (426 SE2d 583). Though Johnson and Mosby denied any participation in the offenses sub judice, both gave testimony supportive of a reasonable inference that they were accomplices therein as well as Fromm. In this regard, each testified that they were arrested together after such offenses. Johnson testified that they had been in the vehicle used in such offenses with Fromm before and after the offenses took place. Mosby connected himself with items found in the search of the vehicle following the group’s arrest — he said he had seen the BB gun Fromm identified as the weapon used in the offenses before they occurred; he recognized a pool cue found in the vehicle as having been in the vehicle when he had ridden in it earlier; and he admitted that Ibuprofen found in the vehicle was medication for his back which he had taken from his pocket at that time. Under these circumstances, the trial court did not err in charging the jury that the testimony of an accomplice might be used to corroborate the testimony of another accomplice. This is particularly so in that a jury is entitled to believe part of a witness’ testimony and yet discount or disregard the remainder of the witness’ testimony. Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474).

Decided December 14, 1999.

Ellis R. Garnett, for appellants.

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

5. Johnson and Mosby further contend that the trial court erred in denying their motions for new trial based on the insufficiency of the evidence. We disagree, concluding that the evidence was sufficient for a rational trier of fact to conclude that Johnson and Mosby were guilty as parties to the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Eason v. State, 234 Ga. App. 595, 596 (1) (507 SE2d 175) (“Under OCGA § 16-2-21, one who intentionally aids and abets in the commission of a crime is a party to the crime and may be convicted of the commission of the crime. [Cits.]”).

Judgments affirmed.

Johnson, C. J., and Phipps, J., concur.

       At the time of trial, Fromm was a private E-l in the Army, though he had been in service for more than a year.