text:
    A90A0475.
    WILLIAMS v. THE STATE.
    (393 SE2d 506)
   Sognier, Judge.

Ricky Lane Williams was tried by a jury and convicted of arson in the first degree and he appeals.

1. Appellant contends the trial court erred by refusing to give his requested charge taken directly from OCGA § 24-9-85 (b), which provides that “[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” Before this Code section may be charged, “ ‘it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.’ [Cits.]” Mauldin v. State, 167 Ga. App. 789, 791 (5) (307 SE2d 689) (1983). We have carefully examined the transcript, and conclude that this requirement was not met. Appellant points to instances of conflicting testimony and minor discrepancies in the testimony of various witnesses. However, assuming, without deciding, that witnesses contradicted each other as to material matters, the credit to be given these witnesses by the jury is governed by subsection (a) of OCGA § 24-9-85, and not by subsection (b) as argued by appellant. If, indeed, any inconsistency or discrepancy existed in any witness’ testimony, it was obviously attributable to the fallibility of memory. “The rule [compelling a charge on OCGA § 24-9-85 (b)] does not extend to situations where it is shown to be reasonably possible that the discrepancy was occasioned by mistake or the failure of memory.” (Citation and punctuation omitted.) Abrams v. State, 157 Ga. App. 609-610 (1) (278 SE2d 37) (1981). There is no merit in this enumeration.

2. Appellant was tried with two co-defendants: Myra Jean Porter, the owner of the burned house, and William Mark Mize. During the State’s case in chief, it called as a witness Dennis Porter, the husband of Myra Jean Porter. After acknowledging he was Myra Jean’s husband, Porter was asked if he had been informed that he had the right not to testify, and he agreed that the prosecutor had said he “had the right not to testify against [Myra Jean], yes,” and that he understood that right, but had nevertheless agreed to testify as to certain matters. However, after being informed by the trial court that if he testified at all he would be testifying against his wife, Porter invoked his privilege and refused to testify. Appellant then moved for a mistrial based on the fact that Porter had been called to the stand and in the presence of the jury had refused to testify against his wife. See Westbrook v. State, 162 Ga. App. 130 (290 SE2d 333) (1982).

Although this court has found reversible error where the spouse of the accused had invoked the privilege not to testify in the presence of the jury, see Colson v. State, 138 Ga. App. 366, 369-371 (13-17) (226 SE2d 154) (1976), several distinguishing factors are present here. It was evident that the prosecutor was surprised by Porter’s invocation of his privilege not to testify. The jury was not present when Porter actually invoked the privilege, having been sent out at the request of the prosecutor in the middle of the colloquy between counsel and the court. After the trial court denied appellant’s motion for a mistrial the judge instructed the jury that “Mr. Porter has declined to testify, which he has the perfect right to do. Now, you will draw no inferences one way or the other from his failure to testify. I don’t know what he was going to testify to, and neither do you. So you will draw no inferences one way or the other concerning his failure to testify.” These factors mitigated the prejudicial effect of Porter’s invoking his privilege.

Moreover, in deciding whether the denial of the motion for mistrial was harmful error requiring reversal, we must look at the other evidence presented by the State, as “[t]he fact that there is other sufficient evidence to convict does not make the error harmless; rather, the test is whether the [testimony] may have influenced the jury’s verdict.” [Cit.] Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985). Tim Summers, a fire investigator, testified that he examined the house after the fire and found “pour patterns” from flammable liquids tattooed into the floor by the fire, and that he concluded there was more than one point of origin for the fire. The latter was confirmed by Thomas Beck, Assistant Fire Chief of the City of Commerce, who testified that the rear bedroom and the laundry room appeared to be separate points of origin of the fire.

Terry Howard and Robert McGinley testified that on the night of the fire, they were in front of the Porter house on their way to visit a neighbor when they met a man carrying a paper bag who pointed a gun at them. They continued on to the neighbor’s home, and turned and saw the man, later identified as appellant, enter the Porter home. When they had completed their visit, about 30 or 40 minutes later, Howard and McGinley saw appellant running down the street toward a small green Ford automobile which picked him up. About 5 or 10 minutes later, Howard and McGinley noticed fire trucks going in the direction of the neighborhood they had just visited and followed them back to the scene of the fire. They both testified they saw Porter, Mize, and others arrive at the scene in Porter’s car, a green Ford which they identified as the same car they had seen pick up appellant.

Decided April 16, 1990.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Douglas McGinnis testified that he had pled guilty to the charge of conspiracy to commit arson stemming from the fire at the Porter house. He implicated Porter, Mize, and appellant as having conspired to burn down the house, and testified that appellant was brought in from Alabama to help Mize. Pam Patrick, Myra Jean Porter’s sister, testified she was present when Porter, Mize, and McGinnis discussed their plan to burn the house, and appellant was brought in because Mize felt he could not do it alone. She and others, including Mize, drove to Boaz, Alabama to get appellant and bring him back to Georgia to assist Mize. She testified that Mize had told her he and appellant had put flammable liquid in bottles and put rags in them and had thrown them through windows in the laundry room and the back bedroom.

In view of this evidence and the mitigating factors discussed earlier, and pretermitting the question of whether, under these circumstances, appellant has standing to raise the prejudice stemming from Dennis Porter’s invocation of his privilege not to testify, being a stranger to the marital relationship, we find no cause for reversal here because the overwhelming nature of the evidence against appellant, together with these mitigating factors, render it unlikely that the jury’s verdict was influenced by Porter’s invocation of his privilege. See Hester v. State, 187 Ga. App. 873, 874-875 (2) (371 SE2d 684) (1988).

Judgment affirmed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A0526.
    ROBERSON v. THE STATE.
    (393 SE2d 516)
    Decided April 16, 1990.

      Eleanor R. Dotson, for appellant.

      Harry D. Dixon, Jr., District Attorney, Deborah M. Perlis, Assistant District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred by failing to hold a hearing on his motion for disclosure of the identity of a confidential informant who had been involved in his arrest. See Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 517) (1988). Uniform Superior Court Rule 31.1 requires all motions in a criminal case to be filed at or before the time of arraignment, “unless time therefor is extended by the judge in writing prior to trial.” The record reveals that the appellant’s motion was not filed until over one month after his arraignment, and there is no indication that he sought an extension of time in which to file his motion. Accordingly, this enumeration of error is without merit. Accord State v. Grandison, 192 Ga. App. 473 (385 SE2d 139) (1989).

2. The appellant contends that the trial court erred in denying a motion for mistrial which he made after the state was allowed to withdraw a witness. In response to the appellant’s motion, the court instructed the jury to disregard the witness’ testimony; and the appellant did not thereafter object to the curative instruction or renew his motion for mistrial. Consequently, this enumeration of error presents nothing for review. See Brown v. State, 187 Ga. App. 347 (1) (370 SE2d 203) (1988).

3. Reviewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the appellant guilty of both the offenses of which he was convicted beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0556.
    KIRKSEY v. THE STATE.
    (393 SE2d 508)
   Banke, Presiding Judge.

Kirksey appeals his convictions of three counts of armed robbery, two counts of theft by taking, and three counts of possession of a knife during the commission of a crime. Held:

Decided April 16, 1990.

Floyd H. Farless, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

1. The appellant contends that the trial court erred in overruling his objection to the state’s use of a peremptory challenge to strike a black juror. The objection was predicated on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The transcript reveals that two of the prospective jurors were black, that the state used a peremptory challenge to strike one of them, and that the other was selected to serve on the jury. We do not believe these facts establish a prima facie showing of racial discrimination in the jury selection process. See generally Williams v. State, 258 Ga. 80 (3) (365 SE2d 408) (1988). Moreover, in response to the appellant’s assertion of discrimination in the jury selection process, the state’s attorney explained that she had stricken the juror at issue based on a concern that the juror might identify with and be sympathetic to the young defendant due to her “youth”; and it was further shown that three white jurors had also been stricken on the basis of youth. Under the circumstances, the trial court clearly was not required to find that the state had exercised its peremptory strikes in a racially discriminatory manner. Consequently, this enumeration is without merit.

2. The trial court did not err in allowing the appellant’s “mugshot” to be introduced into evidence. “It is well settled that the mere admission into evidence of a ‘ “picture of defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.” (Cits.)’ [Cit.]” Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987).

3. Viewed in the light most favorable to the verdict, the evidence presented at trial was sufficient to enable a rational trier of fact to find the appellant guilty of each of the offenses of which he was convicted beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A0600.
    COLLIER v. THE STATE.
    (393 SE2d 509)
   Deen, Presiding Judge.

The appellant, Nathaniel Collier, was charged with and tried for obstruction of a law enforcement officer, simple battery, aggravated assault (with a steak knife), aggravated assault (with a hot clothing iron), and aggravated battery (by disfiguring the victim with a hot clothing iron). He was convicted only of aggravated battery.

All of the charges stemmed from an altercation between Collier and his live-in girl friend, in which Collier himself was stabbed three or four times. During the fight, the victim was burned when Collier applied a hot iron to her neck and shoulder area. Collier claimed that he had merely grabbed the iron and held it up as a shield to protect himself from any further knife attack. Although he knew that the victim occasionally left the iron plugged in, he denied knowing that the iron was hot on this occasion. He had thrown the iron down upon realizing that he had burned the victim. Held:

1. Collier requested that the trial court instruct the jury that “no person shall be found guilty of any crime committed by misfortune or accident where there was no criminal scheme or undertaking or intention,” which tracks the language of OCGA § 16-2-2, except for its omission of “criminal negligence” as one of the factors that must be absent in order for the defense of accident to be available. This omission was not insignificant, however, where there was evidence of at least criminal negligence. The requested charge was an incomplete statement of the law and not precisely adjusted to the evidence, and the trial court did not err in refusing to give it. Daniels v. State, 184 Ga. App. 689 (1) (362 SE2d 775) (1987).

2. Collier also contends that the trial court erred in refusing to charge the jury about mistake of fact regarding the temperature of the clothing iron. Failure to instruct on mistake of fact constitutes reversible error only when it is the defendant’s sole theory of defense. Carswell v. State, 171 Ga. App. 455 (5) (320 SE2d 249) (1984). In the instant case, Collier also asserted justification or self-defense, on which the jury was instructed, along with the law on presumption of innocence, reasonable doubt, credibility of witnesses, the required intent to commit the crimes charged, and the statutory definitions of the offenses. Under these circumstances, we find no reversible error in omitting the jury charge on mistake of fact. Abelman v. State, 185 Ga. App. 278 (2) (363 SE2d 764) (1987).

3. The jury convicted Collier only on the aggravated battery charge. It acquitted him on the charges of obstruction, simple battery, and aggravated assault (with a steak knife), and could not reach a verdict on the aggravated assault (with iron) charge, resulting in a mistrial on that count. Collier contends that under OCGA §§ 16-1-6 and 16-1-7, his conviction for aggravated battery may not be sustained where the jury could not reach a verdict on the charge of aggravated assault, which under the facts of this case was a lesser included offense. Those statutory provisions, however, protect against double convictions and double punishments for an offense and a lesser included offense, which did not occur in the instant case. The jury’s inability to reach a verdict on the aggravated assault charge did not invalidate its verdict on the aggravated battery charge.

Decided April 16, 1990.

Caleb B. Banks, for appellant.

Robert F. Mumford, District Attorney, for appellee.

Judgment affirmed.

Pope and Beasely, JJ., concur.


author: Pope, Judge.

text:
    A90A0694.
    NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. CITY OF CALHOUN.
    (393 SE2d 510)
   Pope, Judge.

The parties, appellant North Georgia Electric Membership Corporation (“North Georgia EMC”) and appellee City of Calhoun (“City”) supply electric service to Gordon County, Georgia, and are subject to the provisions of the Georgia Territorial Electric Service Act (“Territorial Act”), OCGA § 46-3-1 et seq. In 1975, pursuant to the provisions of the Territorial Act and the rules of the Georgia Public Service Commission (“PSC”), the parties entered into a Territorial Agreement, providing, inter alia, for the assignment of certain areas of Gordon County to the parties for the purpose of supplying electric service. The Territorial Agreement was subsequently approved by the PSC and incorporated as part of the territorial assignment of Gordon County. At issue here is language in the agreement which provides that “the City . . . shall not extend its lines at any time . . . east of I-75.”

In 1983 the City began construction of a raw water in-take facility (“facility”) which was located east of 1-75. This facility, which provides a portion of the primary water supply for the City of Calhoun, is owned and operated by the City. North Georgia EMC has supplied electricity to the facility since its completion. However, by letter dated July 28, 1987, the City notified North Georgia EMC of its intent to “assume . . . electric service” to the facility beginning March 1, 1988.

On September 2, 1987, North Georgia EMC filed a petition with the PSC contending that the City’s stated intention to provide electric service to the facility was in violation of the Territorial Act and the Territorial Agreement. The case was assigned to a hearing officer and the parties filed briefs and joint stipulations of fact. The PSC hearing officer issued a decision finding that the facility was a premises devoted to public service as provided by OCGA § 46-3-8 (e) (5) and concluded that, pursuant to said code section, the City was entitled to furnish electric service to the facility. The hearing officer also concluded that the action of the City in supplying electric service to its own premises did not constitute a “retail” sale of electric service and hence was not precluded by the Territorial Agreement. On April 11, 1989, the PSC denied North Georgia EMC’s application for review. The Superior Court of Pulton County affirmed the decision of the PSC and this appeal followed. Held:

At issue in this case is the construction and application of various provisions of the Territorial Act and the Territorial Agreement entered into by the parties here. North Georgia EMC “while conceding that the [¶] acility is the [City’s] own premises devoted to public service” contends that the Territorial Agreement, specifically that portion stating “that the City . . . shall not extend its lines at any time . . . east of 1-75,” constitutes a waiver of any right the City might have had to supply electric service to the facility under the exception provided in OCGA § 46-3-8 (e) (5). We disagree.

As the parties stipulated, the Territorial Agreement was entered into “[p]ursuant to the provisions of the [Territorial] Act and the rules of the [PSC]” and was made part of the territorial assignment of Gordon County. Thus the Territorial Agreement can be understood only by reference to the Territorial Act. Turning first to the definitional provisions of the Territorial Act, OCGA § 46-3-3 (1) defines an “assigned area” as “an enclosed geographic area assigned to only one electric supplier by the commission or by this part, and inside which the assignee electric supplier shall have the exclusive right to extend and continue furnishing service to new premises, except as otherwise provided in this part.” (Emphasis supplied.) Thus, it is apparent that the legislature contemplated exceptions to the exclusive right of an electric supplier to provide service to new premises within its assigned area, as was the situation in the case at bar. As found by the PSC, one of these exceptions is found at OCGA § 46-3-8 (e) (5), which states: “[Notwithstanding any other provision of this part,... (5) Any electric supplier may extend and furnish service to any of its own premises devoted to public service, whether the same shall have already been served by another electric supplier. . . In our opinion this exception gives the City the clear and unambiguous right to serve its own facility, provided the premises at issue are “devoted to public service” whether or not the premises are located in an area otherwise “assigned” to another electric supplier. The reasoning behind this exception is obvious and is clearly illustrated by the facts of this case: If the City is allowed to supply electric service to its own facility, instead of purchasing that service from another electric supplier at whatever cost to the City, a substantial savings will be realized by the City which, conceivably, will ultimately be passed along to the public served by the facility.

Decided April 16, 1990.

James C. Brim, Jr., Robert C. Richardson, Jr., Kinney, Kemp, Pickell, Sponcler & Joiner, L. Hugh Kemp, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, L. Clifford Adams, Jr., Gerald W. Bowling, Robert J. Middleton, for appellee.

Moreover, we also agree with the PSC’s conclusion that the Territorial Agreement is not applicable to the situation here because, as the parties stipulated, the Agreement relates only “to retail electric service within [the] territory of Gordon County, Georgia.” Although the term “retail service” is not defined in the Territorial Act, “retail” is defined in Webster’s Third New International Dictionary (Unabridged 1961) as “to sell directly to the ultimate consumer.” Employing a similar definition, the PSC concluded that the City’s provision of electric service to its own facility would not constitute a retail sale and hence the Territorial Agreement did not give North Georgia EMC the exclusive right to provide service to the facility. Although the exception relied on here, OCGA § 46-3-8 (e) (5), contains the term “service,” which is defined in OCGA § 46-3-3 (9) as “retail service,” reviewing OCGA § 46-3-8 (e) (5) in its entirety clearly shows that this code section does not pertain to a sale of electric service to the ultimate consumer but rather contemplates a specific situation wherein the electric supplier would “furnish” electric service to its own facility devoted to the “public service.” Thus, for this reason also we agree that the PSC correctly concluded that the Territorial Agreement, which the parties stipulated pertained only to the supply of retail electric service, does not demand a finding that North Georgia EMC had the exclusive right to provide electric service to the premises at issue here. “[T]he PSC, as the agency charged with . . . the enforcement and administration of the Georgia Territorial Electric Service Act, is entitled to great deference in its interpretation of the Act. The administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight.” (Citations and punctuation omitted.) City of LaGrange v. Ga. Power Co., 185 Ga. App. 60, 63 (363 SE2d 286) (1987). Accordingly, the trial court did not err in affirming the decision of the PSC.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A90A0695.
    JOHNSON v. THE STATE.
    (393 SE2d 712)
   Birdsong, Judge.

David Johnson appeals his conviction of incest with his thirteen-year-old stepdaughter in violation of OCGA § 16-6-22 (a) (1). The evidence against Johnson consisted of the testimony of his stepdaughter that she had engaged in sexual intercourse with her stepfather, the testimony of one of the stepdaughter’s friends that, when she was thirteen years old, Johnson asked her to have sex with him for money, and the testimony of a friend of Johnson’s stepson that he saw Johnson, dressed in his underwear, sitting on the side of the bed while the stepdaughter was in the bed covered with a sheet. Johnson contends the trial court erred in admitting evidence, erroneously denied a motion for a directed verdict, and failed to give a defense requested charge. He also contends that the evidence is insufficient to sustain a conviction. Held:

1. Johnson contends that the trial court erred by allowing the testimony by the two friends of his stepchildren about other criminal transactions. He asserts that this testimony improperly introduced his character in issue and that there was not sufficient similarity between the independent crimes and the offense charged to allow admission of the testimony. See Ailstock v. State, 159 Ga. App. 482 (283 SE2d 698).

“ ‘Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.’ [Cit.]” Tucker v. State, 191 Ga. App. 648 (382 SE2d 425). Before this evidence is admitted, however, there must be evidence that the defendant was the perpetrator of the independent crimes, there must be sufficient similarity or connection between the independent crime and the offense charged, and the probative value of the evidence must outweigh the prejudicial impact. Guffey v. State, 191 Ga. App. 501, 502 (382 SE2d 202).

Although appellant denies committing the crimes, we find sufficient evidence proving his identity as the perpetrator to satisfy this requirement. The witnesses knew appellant and they testified the crimes occurred in his home. Regarding the similarity requirement, one of the independent crimes also involved the victim in this case. The other involved another thirteen-year-old while she was visiting the victim in appellant’s home, and appellant used the same phrase in soliciting sex for money as he had with the victim in this case. Moreover, “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (250 SE2d 394). Therefore, the other crimes were sufficiently similar for the evidence to be admissible to show appellant’s lascivious motivation, plan, scheme, bent of mind, course of conduct, and lustful disposition, as well as to corroborate the victim’s testimony about the act charged and another prior act. See Tucker v. State, supra; Guffey v. State, supra.

Balancing the probative value of the evidence of the other crimes against the potentially prejudicial impact (Oller v. State, 187 Ga. App. 818, 820-821 (371 SE2d 455)), we find no abuse of discretion by the trial judge in admitting this testimony.

2. The second enumeration of error contends that the trial court erred by not conducting a preliminary hearing before determining that two minor witnesses were competent to testify. See OCGA § 24-9-7 (a). The record shows that one witness was seventeen years old and the other was fourteen. In both instances, the trial court found that the witnesses were competent to testify after learning the ages of the witnesses. Appellant’s only objection is that the trial court did so without conducting an extended examination of the witnesses. “The determination of competency of a child witness rests in the sound discretion of the trial court, and we will not reverse in the absence of manifest abuse of discretion. [Cits.]” Guffey v. State, supra. There is not the slightest evidence suggesting that the two teenage witnesses were in any way not competent, and we do not find that the trial court abused its discretion by finding fourteen-and seventeen-year-old witnesses competent to testify without holding extended, pro forma examinations. OCGA § 24-9-7 (a) only, requires that the trial court determine that the witnesses were competent. The trial court did so, and we find no error.

3. Appellant also contends the trial court erred by not striking the testimony of a Department of Family & Children’s Services caseworker because the testimony was based upon records which had not been properly authenticated as business records. The transcript shows that the witness testified about conversations she had with the victim in this case and that the substance of the conversations was admissible under the child-victim hearsay statute (OCGA § 24-3-16), but she also testified about other matters concerning the victim which she may have learned from records about the victim. However, the transcript also shows the testimony appellant complains about was elicited on cross-examination by the defense counsel, and that only at the end of her testimony did he move to strike it. In these circumstances, even if there was error, appellant cannot complain of it because he induced it. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864).

4. Appellant asserts that the trial court erroneously denied his motion for a directed verdict of acquittal because the State did not prove that he was married to the victim’s mother. In this instance, the State did not introduce documentary evidence of the marriage between the victim’s mother and appellant, but relied on unrebutted testimony that the two were married. This evidence was sufficient (see Argo v. State, 188 Ga. App. 102-103 (371 SE2d 922)), and the trial court did not err by denying the motion. Taylor v. State, 252 Ga. 125, 127 (312 SE2d 311).

5. Appellant also enumerates as error the failure of the trial court to give a requested charge to the effect that the court determined the competency of the child witnesses to testify, but the jury had the sole responsibility to judge credibility and give testimony the weight it deserves, and the jury should not take the court’s decision to admit the testimony as an indication of credibility. The trial court refused to give the charge because it was not an accurate statement of the law and because the court gave a charge adequately instructing the jury on its responsibility regarding the credibility of witnesses.

There is no requirement that the jury be advised on all the duties of the court vis-a-vis the jury, and the trial court did not err by refusing to so charge in this instance. Further, the trial court instructed the jury that no ruling it made should be taken as an expression on the credibility of the witnesses, and the charge given also fully and accurately instructed the jury on its responsibilities regarding credibility. Appellant is not entitled to have the charge given exactly as he requested. Cohran v. State, 141 Ga. App. 4, 5 (232 SE2d 355). There was no error here.

6. The final enumeration of error contends that the evidence was insufficient to prove appellant’s guilt beyond a reasonable doubt. Although appellant denied it on the witness stand, his stepdaughter testified that he had sexual intercourse with her while appellant was married to her mother. That is sufficient. Appellate courts view the evidence in the light most favorable to the verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), and we only determine if the evidence is sufficient for a reasonable trier of fact to have rationally found proof of guilt beyond a reasonable doubt. We do not weigh the evidence or judge credibility. Banks v. State, 185 Ga. App. 851, 853 (366 SE2d 228). The transcript of this case “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that the appellant was guilty of [incest].” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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

Decided April 16, 1990.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Robert G. Dunn III, Assistant District Attorneys, for appellee.


text:
    A90A0725.
    PORTER v. THE STATE.
    (393 SE2d 513)
   Deen, Presiding Judge.

Appellant Porter and a friend had consumed four or more beers apiece during the three-hour period prior to encountering a roadblock on a middle-Georgia highway, where law enforcement officers were conducting a routine check of drivers’ licenses and automobile insurance. As appellant handed over his license and proof of insurance, the officer checking his van observed that appellant’s eyes were glassy and that he emitted An odor of alcohol. He requested that appellant leave the automobile and then administered two field sobriety tests: the “pen” test and an “alcosensor” test. When appellant’s performance on the tests indicated that he was intoxicated, the officer asked him to walk over to the patrol car, where he read him his rights and placed him under arrest. Appellant asked that his wallet be retrieved from the dashboard of his van, but the officer refused permission, telling him that he would not need it. Appellant’s companion subsequently used some of the money in appellant’s wallet to pay the driver of the truck that towed the van.

Appellant requested that he be given a blood test, pursuant to OCGA § 40-60-392, and was taken to the local hospital for blood to be drawn; in the meantime, he had again unsuccessfully asked that his wallet he returned. Because the hospital required cash in advance for blood tests, appellant, whose money was all in his wallet rather than in his pockets, was unable to obtain the requested test.

At trial the court granted appellant’s motion to suppress the results of the intoximeter test because of the de facto denial of his right to have an additional test of his own choosing. The trial court nevertheless found appellant guilty of driving under the influence, basing the latter ruling on circumstantial evidence of intoxication, as attested by the arresting officer. On appeal Porter enumerates as error (1) the lack of evidence of “less safe” driving capacity to support the “guilty” ruling and (2) the trial court’s failure to dismiss the entire case, rather than merely granting the motion to suppress, because of the State’s depriving him of the means of obtaining a blood test. Held:

1. Appellant’s first enumeration of error is without merit. It is well settled that circumstantial evidence may be used to prove driving an automobile while under the influence of alcohol. Jones v. State, 187 Ga. App. 132 (369 SE2d 509) (1988); Carr v. State, 169 Ga. App. 679 (314 SE2d 694) (1984). As this court held in Jones, supra at 133: “Though the officer did not actually see [appellant’s] car move, he observed circumstances from which [the factfinder] could infer both that [appellant] was in actual physical control of the car while it was moving to the location at which the officer found it and that [appellant] was intoxicated during that movement.” Thus there was sufficient competent evidence to authorize the reasonable trier of fact to find appellant guilty beyond a reasonable doubt of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 16, 1990.

W. Ashley Hawkins, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.

2. Under the facts recited in Division 1, supra, and under the Jackson v. Virginia standard enunciated therein, we find that the trial court did not err in finding appellant guilty as charged, despite the absence of the evidence properly excluded by the granting of the motion to suppress. This enumeration is also without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0857.
    BROWN v. THE STATE.
    (393 SE2d 514)
   Deen, Presiding Judge.

The appellant, Matthew Brown, was convicted of theft by shoplifting a $4.97 bracelet at a Wal-Mart store.

While on a family shopping trip at the Wal-Mart in Waycross, the wayward Brown was observed by the store security employee, Leo Root, to remove a bracelet from the display rack, place it in his hip pocket, and depart the store. Root confronted Brown in the mall food court, and Brown, after first denying having the bracelet, retrieved it from his pocket. Root escorted Brown back to the store, called the police, and summoned Brown’s parents over the store intercom. Brown and his parents denied larcenous intent, and claimed that Brown had merely placed the bracelet in his pocket until the rest of the family was ready to check out of the store. Held:

At trial, Root identified the bracelet that he recovered from Brown, and explained that he had kept the bracelet in an individual sack, stored in a room to which only he had a key. The sack bore an evidence label identifying Brown, the date, Root, and the police officer who transported Brown to the police station. These items were admitted into evidence and allowed to go out with the jury over defense counsel’s objections that no proper foundation was laid for the bracelet, and that the sack was an impermissible written record of a witness’ testimony. Those objections form the bases of this appeal.

Decided April 16, 1990.

C. Deen Strickland, for appellant.

Douglas Gibson, Solicitor, for appellee.

The bracelet was a distinct and recognizable physical object, identifiable by the sense of observation, and admissible without the necessity of showing a chain of custody. Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983). Even if a chain of custody showing had been necessary, however, considering the nature of the bracelet and the security surrounding the storage of the item, that foundation was clearly met in this case. Carson v. State, 241 Ga. 622 (247 SE2d 68) (1978).

The jury generally is not allowed to take written testimony into deliberations, because of the possible unfair advantage of repetition over oral testimony. Royals v. State, 208 Ga. 78 (2) (65 SE2d 158) (1951). However, the sack in which the store security kept the bracelet, and which bore the evidence label, hardly amounted to written testimony that could work any prejudice against Brown.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0378.
    CITY OF SWAINSBORO v. RINER.
    (393 SE2d 519)
   Deen, Presiding Judge.

Loree Riner entered a building owned by the City of Swainsboro, slipped and fell on the recently waxed floor, and was injured. It was raining and an indoor mat had been removed. The building was occupied by the Emanuel County Child Development Center (CDC), a non-profit corporation formed under the auspices of the city. Mrs. Riner was entering the building to obtain a free hot meal provided to senior citizens by the Emanuel County Nutrition Center. Suit was brought against the city, the CDC, and the cleaning service that waxed the floor. The city appeals from the denial of its motion for summary judgment. Held:

The city contends that it did not have possession or control over the premises which would place it on actual or constructive notice of the alleged defect.

Decided April 17, 1990.

William H. McWhorter, Jr., for appellant.

W. David Sims, Robert S. Reeves, Friedman, Haslam, Weiner & Ginsberg, Patrick T. O’Connor, for appellee.

James O. Rountree, pro se.

Under OCGA § 44-7-1 (a), the landlord does not grant the tenant an estate. Instead, he has a mere right of use of the property. Under OCGA § 44-7-14, if the landlord has “fully parted with possession, [he] is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” See Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988); Spence v. C & S Nat. Bank 195 Ga. App. 294 (_ SE2d_) (1990).

In reviewing the applicable statutory law, the court in Thompson v. Crownover, 259 Ga. 126, 128 (377 SE2d 660) (1989), held that the public policy in this state favors the imposition of “landlord liability for damages to others from defective construction and failure to keep his premises in repair.”

In this case there was no written lease between the city and the CDC at the time Mrs. Riner was injured. A lease was drawn up and signed by the city, but it was not executed by the CDC, and its director was unaware of the lease’s terms until it was shown to her when her deposition was taken. There was evidence that the CDC was operated by a board of directors, one of whom was appointed by the city. Moreover, the city had purchased and maintained insurance on the premises until 12 days before Mrs. Riner’s fall. The city owned most of the personal property in the building, and had, on more than one occasion, paid for repairs to the premises. It did not, however, inspect the premises although it was free to do so at any time.

Applying the usual rules in ruling upon a motion for summary judgment, we find that the evidence presented to the trial court was sufficient to raise questions of fact requiring jury resolution as to whether the city had parted with possession of the premises and whether it had any knowledge (actual or constructive) of the alleged defect.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0434.
    LOVE v. THE STATE.
    (393 SE2d 520)
   Banke, Presiding Judge.

The appellant was convicted of driving under the influence, in violation of OCGA § 40-6-391 (a) (1), driving with a blood-alcohol concentration in excess of .12 grams, in violation of OCGA § 40-6-391 (a)(4), and emerging from an alley or private drive without stopping, in violation of OCGA § 40-6-144. During the trial, he objected to the introduction of the results of a police intoximeter test which had been administered to him following his arrest on the ground that he was prevented from exercising his right under OCGA § 40-6-392 (a) (3) to secure an independent chemical test from a qualified person of his own choosing. His sole contention on appeal is that the trial court erred in overruling this objection.

It is apparent without dispute that the appellant requested an independent blood test after taking the intoximeter, or breathalyzer, test and that he was thereafter transported to a local hospital by the officer (Deputy Dixon) who had administered the intoximeter test to him. However, he was informed by hospital personnel upon his arrival there that the charge for the test was $149 and that advance payment was required either in cash or by major credit card. The appellant testified that he had three major credit cards in his wallet but that Deputy Dixon, acting at his direction, had given the wallet to his (the appellant’s) fiancee at the scene of his arrest, leaving him with only $10 in cash on his person. He was thus unable to pay the hospital’s fee and was transported back to the jail without receiving a blood test. Deputy Dixon conceded that he had failed to warn the appellant ahead of time of the hospital’s payment policy, even though he had been “ninety percent sure” that the appellant “wasn’t going to have any blood test” due to lack of funds. Dixon further conceded that on past occasions he had given arrestees in the appellant’s situation advance warning of the hospital’s payment policy. Held:

1. We note at the outset that the court was in no event authorized to enter convictions on both DUI charges, since they were predicated on the same conduct. See Sanders v. State, 176 Ga. App. 869, 870 (4) (338 SE2d 5) (1985); Fudge v. State, 184 Ga. App. 590, 592 (6) (362 SE2d 147) (1987).

2. “OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978). While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324) (1980). The statute also states that ‘justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.” State v. Buffington, 189 Ga. App. 800, 801-2 (377 SE2d 548) (1989). (Emphasis supplied.)

Decided April 17, 1990.

Kenneth R. Chance, for appellant.

Robert W. Hunter III, Solicitor, Carl P. Dowling, Assistant So licitor, for appellee.

As previously indicated, Deputy Dixon was fully aware that the appellant did not have sufficient funds to obtain a blood test at the hospital but nevertheless took him there without warning him of the hospital’s advance payment policy, so as to enable him to attempt to make arrangements to secure the necessary funds. Furthermore, it is inferable from the evidence that the appellant’s financial resources were such that if he had been informed ahead of time of the hospital’s payment policy, he very likely would have been able to arrange for payment. Under the totality of the circumstances, we must conclude that the officer failed to make a reasonable effort to accommodate the appellant’s desire for an independent chemical test and that the intoximeter test results should have therefore been excluded. Accord State v. Buffington, supra; State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987) (affirming exclusion of breathalyzer test results notwithstanding fact that defendant was able to obtain an independent test, where officer had refused to transport defendant to a nearby hospital of his own choosing). The appellant’s convictions of driving under the influence are accordingly reversed. This reversal shall not, however, affect the appellant’s conviction of emerging from an alley or private drive without stopping, the validity of which is not challenged in this appeal.

Judgment reversed in part.

Birdsong and Cooper, JJ., concur.


text:
    A90A0538.
    USSERY v. THE STATE.
    (393 SE2d 522)
   Banke, Presiding Judge.

The appellant was charged with improper lane usage, driving while under the influence of alcohol to the extent that he was a less safe driver, and driving with a blood-alcohol level of .12 percent or more by weight. A jury found him guilty on both the DUI counts while acquitting him on the charge of improper lane usage; however, he was only sentenced for driving with a blood-alcohol content of .12 percent or more. In this appeal from the denial of his motion for new trial, he enumerates 25 alleged errors committed by the trial court, many of which are redundant. Held:

1. The appellant contends that his acquittal on the improper lane usage charge was inconsistent with his conviction of DUI, because without a finding of improper lane usage there could be no finding that his driving ability was impaired. Since the trial court did not enter a conviction on the DUI count which was predicated on impaired driving ability, the issue of whether there was sufficient evidence to support a conviction on that count is moot. Cf. Lester v. State, 253 Ga. 235, 237 (2) (320 SE2d 142) (1984). There was, however, ample evidence, apart from that dealing with the lane usage charge, from which the jury could have concluded that the appellant’s driving ability was impaired. He was administered two separate intoximeter, or breathalyzer, tests. The first, performed 20 minutes after he was stopped, resulted in a reading of .12 grams; while the second, performed 20 minutes after the first, resulted in a reading of .10 grams. Either of these readings was sufficient under OCGA § 40-6-392 (b) (3) to support a finding that the appellant “was under the influence of alcohol as prohibited by paragraph [] (1) . . . of subsection (a) of Code Section 40-6-391. . . .” In addition, there was testimony that the appellant’s eyes were red and glassy, that he had a strong odor of alcohol about his person, that his speech was slurred, and that he was unsteady on his feet to the extent that he had to hold onto his vehicle for balance.

2. The appellant contends that a reasonable doubt as to whether the alcohol content of his blood was .12 percent or more was created as a matter of law by the reading of .10 which he received on the second intoximeter test. This contention is also meritless. As previously indicated, the second test was not performed until 20 minutes after the first, by which time 40 minutes had elapsed since the appellant was stopped. Thus, the jury might reasonably have attributed the lower reading on the second test to the passage of time. The evidence, considered as a whole, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The appellant contends that the trial court erred in allowing one of the police witnesses to refresh his recollection from a written document without any showing that he had prepared the document himself. The law requires no such showing. Pursuant to OCGA § 24-9-69, “[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” Accordingly, so long as a witness is testifying from personal recollection, he is “entitled to have his memory refreshed by a document which he himself did not prepare. (Cit.)” Byrd v. State, 182 Ga. App. 284, 287 (355 SE2d 773) (1987). Accord Mabry v. Henley, 123 Ga. App. 561, 566 (181 SE2d 884) (1971).

4. The appellant complains that “[t]he arresting officer failed to advise [him] that he could have a urine test or a blood test after he took the test the arresting officer requested [him] to take.” While the appellant did interpose an objection at trial to the introduction of the intoximeter test results, he did so not on the ground that the arresting officer had failed to advise him of his right to an independent test but on the ground that the state had failed to lay a proper foundation for this evidence by proving “how the machine works” and by showing that the officer who had administered the tests was properly certified to do so. Consequently, this enumeration of error (which does not even purport to address any ruling or other action on the part of the trial court) presents nothing for review. We note, however, that it was in fact established during the trial that the appellant had been advised of his right under OCGA § 40-6-392 (a) (3) to receive an independent chemical test from a person of his own choosing.

5. The appellant contends that the trial court erred in not declaring a mistrial based on the state’s failure to reveal to him, in response to a Brady motion, the identity of an officer who had been present at the scene of his arrest but who was not called as a witness at trial. When asked by the court how his client had been harmed by this failure, appellant’s counsel replied as follows: “Whatever he knew may have been helpful. How do I know what he knew? I don’t know.” This enumeration of error is accordingly without merit. “ ‘The defendant has the burden of showing that the evidence withheld “so impaired his defense that he was denied a fair trial within the meaning of the Brady rule.” (Cits.)’ . . . ‘Mere speculation that the items the appellant wishes to review possibly contained exculpatory information does not satisfy (the defendant’s) burden (of showing that the evidence is material.)’ [Cit.]” Williams v. State, 178 Ga. App. 581 (3), 586 (344 SE2d 247) (1986).

Decided April 17, 1990.

John L. Watson, Jr., for appellant.

Keith C. Martin, Solicitor, for appellee.

6. The appellant testified that he had consumed some cough medicine containing alcohol and codeine on the day in question and that he believed this could have generated a false reading on the intoximeter. He contends that the trial court accordingly erred in refusing to give the following requested charge: “I charge you that should you find as a matter of fact that the defendant in this case had been drinking alcoholic beverages but that he had not consumed alcohol sufficient to raise his blood alcohol content to .10 and that the defendant had consumed a prescription which contained alcohol and that the prescription alcohol consumed did not contribute to the blood alcohol as measured by the intoximeter but lingered in the defendant’s mouth area and contributed to a higher reading on the intoximeter then in that event you would be authorized to disregard the readings of the intoximeter.”

It is not apparent why the ingestion of the alcohol contained in the medicine would not have affected the appellant’s blood alcohol level. There was no expert testimony on the issue, and the appellant’s testimony that his believed consumption of the medicine might have resulted in a false reading on the intoximeter was completely speculative. It follows that there was no evidentiary basis for the requested charge.

7. We have considered the appellant’s remaining enumerations of error and have determined that they establish no ground for the reversal of his conviction.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0076.
    RAY v. THE STATE.
    (393 SE2d 524)
   Pope, Judge.

Defendant Mark Trent Ray was convicted by a jury of armed robbery, robbery by intimidation and obstruction of a law enforcement officer. He appeals, contending that prejudicial error occurred when the State was allowed to cross-examine him “in such a manner as to force [him] to compare the credibility of his testimony with that of the [State’s] witnesses who appeared against him.” We affirm.

The robbery charges against defendant arose out of two separate incidents which occurred at a Majik Market store located at 3221 Wrightsboro Road in Augusta, Georgia. Employees of the store testified at trial and identified defendant as the person who had committed the robberies. A customer of the store also identified defendant as the perpetrator of one of the incidents. A friend of defendant’s, with whom he was living at the time the crimes were committed, testified that defendant was “passed out drunk” during the times the robberies were allegedly committed. Defendant also testified at trial that he had been drinking on the dates of the crimes and that he was asleep at the times the robberies occurred. On cross-examination the State asked the defendant if the witnesses who positively identified him as the perpetrator of the crimes “didn’t know what [they] were talking about” in light of defendant’s version of events that placed him somewhere else at the time the crimes were committed. It is to this line of questioning that defendant objects to on appeal.

Decided April 18, 1990.

David V. Weber, for appellant.

Michael C. Eubanks, District Attorney, Charles R. Sheppard, Richard E. Thomas, Katherine F. Bond, Assistant District Attor neys, for appellee.

At the outset we note that defendant posed no objection to the portion of the cross-examination asserted as error on appeal. “ ‘A ground not raised by objection at trial cannot be raised for the first time on appeal. (Cit.)’ Williams v. State, 178 Ga. App. 216, 217 (2) (342 SE2d 703) (1986).” Collins v. State, 183 Ga. App. 243, 244 (4) (358 SE2d 876) (1987). See also Hall v. State, 180 Ga. App. 881 (2) (350 SE2d 801) (1986). Defendant contends, however, that the error allegedly committed here was of “constitutional magnitude” in that it violated his right to take the stand in his own behalf and thus his failure to object at trial should not preclude review by this court. “[A] defendant cannot convert harmless error to reversible error by simply attaching to an incident more significance than it in fact bears.” Rivers v. State, 250 Ga. 288, 295 (298 SE2d 10) (1982). However, out of an abundance of caution, we have considered defendant’s arguments concerning the allegedly improper cross-examination and find no grounds for reversal. Specifically, the questioning here, contrary to defendant’s contentions on appeal, did not force the defendant to challenge the veracity of the State’s witnesses, as evidenced by the fact that defendant responded to the line of questioning by stating that the witnesses were entitled to voice their “opinion.”

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0066.
    TURMAN v. SOUTHERN GENERAL INSURANCE COMPANY.
    (393 SE2d 469)
   Deen, Presiding Judge.

This case arose from a fire loss incurred by appellant Clara Turman to a structure insured by appellee Southern General Insurance Company. The policy ran for a period of one year from April 28, 1987, to April 28, 1988, and provided for a $5,000 limit of liability for fire loss. It included, inter alia, the following endorsement: “Loss clause, if any, shown on the form(s) as attached to this policy is hereby voided. All losses hereunder reduce coverage. Premium is fully earned for the amount of coverage for which the loss is paid.”

On August 27, 1987, during the April 1987-1988 policy period, Ms. Turman had sustained a previous fire loss for which she made claim and was paid $2,895.27 by Southern General. On February 29, 1988, within the same policy period, Ms. Turman sustained another fire loss, in excess of $5,000, for which she made claim. Southern General, contending that the loss clause of the policy limited all losses occurring during the period for which the policy was issued to a total of $5,000, sent Ms. Turman a check for $2,105, representing the balance of coverage afforded. Ms. Turman rejected the offer and brought this action seeking to recover $5,000 under the policy plus penalties and attorney fees.

The trial court granted partial summary judgment, awarding appellant $2,105, but denied summary judgment as to bad faith and attorney fees. The court subsequently granted appellant partial summary judgment as to interest in the amount of $104.15. In June 1989 the trial court granted summary judgment to Southern General and dismissed the action with prejudice. Ms. Turman has appealed from this June 1989 judgment. Held:

Ms. Turman enumerates as error the award of summary judgment to Southern General, alleging that it was “inconsistent with the fact and the law.” We construe this as an enumeration of the general grounds.

OCGA § 9-11-56 (c) provides that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions . . ., together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The record shows that the trial court recited this statute, in part, in making the contested ruling. The language of the policy’s loss clause, cited supra, is perfectly clear and unambiguous in stating that the face value of the policy is reduced by the amount of any loss or losses incurred during the policy period. Thus as a matter of law the trial court made the only ruling appropriate in the fact situation sub judice. Appellant’s enumeration is without merit.

Decided April 3, 1990

Rehearing denied April 19, 1990

George P. Graves, for appellant.

Richard D. Hall, Mozley, Finlayson & Loggins, Robert M. Finlayson II, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0107.
    ROSE v. THE STATE.
    (393 SE2d 459)
   Deen, Presiding Judge.

A Clayton County jury found appellant Rose guilty of trafficking in cocaine, violation of the Georgia Controlled Substances Act, improper use of highway lanes, driving under the influence of alcohol (two counts), driving with a suspended license, driving with no proof of insurance, and possession of a firearm by a convicted felon. He and a passenger (not a party to this appeal) had been stopped by a police officer when the two-seater automobile he was driving was observed operating in an erratic manner on highways 1-75 and 1-285.

The officer, assisted by another officer who had observed the chase and apprehension, found that appellant exhibited indicia of intoxication; upon intoximeter testing, his blood alcohol level proved to be .14 percent. A search of the vehicle revealed two guns; a duffle bag containing 6.5 ounces of marijuana and a syringe and other items commonly used to mix cocaine; a briefcase containing $5,000 in cash; a spoon; and chunks of a white powdery substance which subsequent analysis identified as cocaine. A large bag taken from the passenger/ co-defendant contained a plastic bag holding 38 grams of cocaine; other, smaller quantities of cocaine; syringes; and unspecified “pills.” The gun taken from behind the driver’s seat was found to belong to appellant; the one found on the passenger side was found to belong to one of Rose’s former roommates.

At trial the co-defendant testified that when they noticed that they were being pursued by a patrol car, appellant, who had allegedly been “snorting” from the bag containing the 38 grams of cocaine, had handed her the bag and instructed her to conceal it on her person, and that in the process of the transfer a considerable quantity of the substance had been spilled on both seats. This testimony was consistent with the arresting officer’s testimony that he had observed considerable activity in the vehicle as he was approaching it.

Decided April 2, 1990

Rehearing denied April 19, 1990

Sexton, Turner & Moody, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Appellant moved for a directed verdict of acquittal both at the close of the State’s evidence and again at the close of all the evidence. The motions were denied, and on appeal Rose enumerates as error the denial of these motions and the sufficiency of the evidence. Held:

1. It is well settled that the appellate court assesses the sufficiency of competent evidence and not its weight. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). Our review of the record shows that the evidence adduced was more than sufficient to authorize the rational trier of fact to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. A directed verdict of acquittal is authorized only when “there is no conflict in the evidence, and the evidence introduced with all reasonable deductions therefrom shall demand a verdict of acquittal . . . .” OCGA § 17-9-1; Massengale v. State, 189 Ga. App. 877 (377 SE2d 882) (1989). On appellate review of the denial of a motion made at the close of the State’s case in chief, “the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion.” Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975); Hall v. State, 181 Ga. App. 697 (353 SE2d 614) (1987); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980). Therefore, when, as here, what is appealed is the denial of motions made both at the close of the State’s evidence and at the close of all the evidence, it is axiomatic that the scope of review is the same for both motions. The evidence of record in the instant case is palpably insufficient to meet the statutory requirement for a directed verdict of acquittal but rather, as indicated in Division 1, supra, is abundantly sufficient to authorize the jury to find appellant guilty as charged on all counts, beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    A90A0153.
    BOYKIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (393 SE2d 470)
   Beasley, Judge.

Boykin appeals the grant of State Farm’s motion for summary judgment. The sole issue is whether she was entitled to have a jury determine her right to recover under the no-fault provisions of the owner’s insurance policy issued by State Farm.

Boykin and two friends drove to a combination service station and convenience store. While the automobile was being filled with gasoline, Boykin and her two friends went into the store. Boykin purchased food and drink, paid for the gasoline and came out of the store. As she approached the vehicle she slipped and fell, sustaining injuries to her hand and wrist on glass which broke when she fell.

On deposition Boykin testified “I was getting ready to open the door” to the automobile. She had not actually grabbed the door handle, but “went to reach for it.” She stated that when she fell she was about two feet from the car “because I was just fixing to open the door.” She never made contact with the car during the incident. Boykin did not own the car. It was her brother’s, and it was being used with his permission.

The trial court identified as undisputed the facts that as Boykin was preparing to re-enter the automobile she slipped and fell on wet oily pavement; the automobile engine was not running; she had not entered it; she made no physical contact with it prior to or during the fall. Finding in the record no evidence of an “insured event,” the trial court denied Boykin’s motion and granted State Farm’s motion for summary judgment.

OCGA § 33-34-7 (a) (1) provides that a no-fault insurer shall pay basic benefits “without regard to fault for economic loss resulting from: [accidental bodily injury sustained ... by the insured . . . while occupying any motor vehicle.” Accidental bodily injury includes “bodily injury, sickness, or disease . . . arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits.” OCGA § 33-34-2 (1). The “operation, maintenance and use of the motor vehicle” is “as a vehicle.” OCGA § 33-34-2 (9). “Insured” encompasses “any other person using or occupying the insured vehicle with the express or implied permission of the named insured.” OCGA § 33-34-2 (5). Under OCGA § 33-34-2 (8), “ ‘Occupying’ means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.”

Boykin argues that the issue whether she was occupying the vehicle should be a jury question, citing among others Reynolds v. Transport Ins. Co., 178 Ga. App. 462 (343 SE2d 502) (1986), and Kelley v. Integon Indem. Corp., 253 Ga. 269 (320 SE2d 526) (1984). State Farm contends that Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988), requires the ruling made by the trial court.

Decided April 3, 1990

Rehearing denied April 19, 1990

Van C. Wilks, for appellant.

Harper, Waldon & Craig, Thomas B. Harper, for appellee.

The question is whether the facts “establish as a matter of law that the claimant cannot recover on the policy.” Mag Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 173 (1) (367 SE2d 63) (1988). To recover Boykin must meet two threshold criteria: the injury must have occurred while she was occupying the vehicle and there must have been a causal connection between the injury and the operation, maintenance or use of a motor vehicle. Kelley, supra at 272. Even if contact is not essential to “occupying” a vehicle and that merely reaching for the door handle can constitute the immediate act of entering a vehicle (see, however, Cole, supra; Floyd v. J. C. Penney Cas. Ins. Co., 193 Ga. App. 350 (387 SE2d 625) (1989); Holsey v. Allstate Ins. Co., 193 Ga. App. 782 (389 SE2d 11) (1989)), her injuries did not arise out of the operation, maintenance or use of the automobile as a motor vehicle. OCGA § 33-34-2 (9).

The vehicle was not running, any “maintenance” had already been performed by someone else, and there was at most a remote connection between Boykin’s injuries and the vehicle. See Westberry v. State Farm Mut. Auto Ins. Co., 179 Ga. App. 700, 701 (1) (347 SE2d 688) (1986); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 (318 SE2d 670) (1984); Jones v. Continental Ins. Co., 169 Ga. App. 153, 154 (312 SE2d 173) (1983); Leverette v. Aetna Cas. &c. Co., 157 Ga. App. 175, 176 (276 SE2d 859) (1981). The injuries did not result “from an accident peculiar to the motor vehicle” nor were they “intrinsically related to the vehicle itself.” Id. at 176. Given the facts here, there was no insured event.

Judgment affirmed.

Been, P. J., and Pope, J., concur.


text:
    A90A0222.
    CAMPBELL v. HOSPITAL AUTHORITY OF COBB COUNTY et al.
    (393 SE2d 480)
   Banke, Presiding Judge.

This is an appeal by the plaintiff from a judgment for the defendants in a medical malpractice action. The plaintiff brought her 10-month-old daughter to the emergency room at Cobb General Hospital at 12:55 p.m. on January 30, 1981, with complaints that she was suffering from a fever and a rash. The child was examined by defendant Grantier, who was on duty as the attending emergency room physician at the time, and was released at 2:25 p.m. with a diagnosis of “probable chicken pox.” At trial, Dr. Grantier conceded that he “suspected that it was a possibility” that the child might have meningococcemia, a virulent disease which, unlike chicken pox, is uniformly fatal if not treated with antibiotics during its early stages; however, he stated that he “firmly believed it was chicken pox.”

According to the written emergency room record, the instructions given to the plaintiff upon the child’s release from the emergency room were to administer Benadryl (an antihistamine) for itching, to administer Tylenol and fluids for fever control, and to consult her pediatrician “as needed.” However, Dr. Grantier testified that he also gave the plaintiff verbal instructions to bring the child back to the emergency room “if that rash changed in any way.” The child was brought back to the emergency room approximately 12 hours later, at which time she was correctly diagnosed by her pediatrician as having meningococcemia. However, the disease had by then progressed too far to respond to antibiotic treatment, and she died several days later. At trial, the plaintiff sought to prove that the child’s death was caused by Dr. Grantier’s professional negligence in releasing her from the emergency room without either eliminating meningococcemia as a possible source of her symptoms or treating her for that disease. The hospital was alleged to be vicariously liable under agency principles. Held:

1. The plaintiff contends that the trial court erred in not directing a verdict in her favor on the issue of proximate cause, in charging the jury on proximate cause, and in failing to give her requested jury charges eliminating the issue of proximate cause from their consideration. These enumerations of error are based on the contention that the evidence conclusively established (1) that the child would have survived had she been treated for meningococcemia at the time Dr. Grantier examined her and (2) that there was no intervening negligence on the part of the plaintiff or anyone else to break the chain of causation. However, even assuming arguendo the truth of these contentions, it does not follow that the issue of proximate cause was eliminated from the case, for the expert testimony in the case undisputedly created a jury issue as to negligence; and the two concepts are inextricably intertwined. “Negligence which is the proximate cause of an injury is such an act [or omission] that a person of ordinary caution and prudence would have foreseen that some injury might likely result therefrom.” Harris v. Hardman, 133 Ga. App. 941, 942 (212 SE2d 883) (1975). Obviously, if Dr. Grantier was not negligent in his diagnosis and treatment of the child, then such negligence on his part was not the proximate cause of the child’s death. This enumeration of error is without merit.

2. The plaintiff contends that the trial court erred in refusing to allow him to propound the following hypothetical question to Dr. Grantier’s expert on cross-examination: “I just want you to assume the following simple set of facts: That a doctor has said that he suspected meningococcemia, on the one hand. He suspected chicken pox on the other. That he could not reconcile in his own mind which of the two they were, and discharged the child from the emergency room under that set of circumstances in his own mind. Now Doctor, would you tell me, please, whether you think that is within the standard of care or not?” (Emphasis supplied.) Dr. Grantier objected to this question on the ground that it misstated the evidence, and the trial judge sustained the objection “as not including the facts in evidence that are necessary.”

The objection that the question misstated the evidence was well taken. Although, as previously indicated, Dr. Grantier acknowledged having suspected meningococcemia as a possibility, he testified that he “firmly believed” the decedent was suffering from chicken pox. Thus, the assumption that “he could not reconcile in his own mind which of the two they were” was at variance with the evidence, rendering the question improper. See Biggs v. McDougall, 175 Ga. App. 87, 88 (332 SE2d 381) (1985); Smith v. Luckett, 155 Ga. App. 640 (2) (271 SE2d 891) (1980).

3. The plaintiff contends that the trial court erred in charging the jury that a doctor does not guarantee the results of treatment and that the fact that treatment is different in its outcome from that expected does not establish nor support an inference of lack of care. The plaintiff does not contend that the charge in question was an incorrect statement of the law in the abstract but argues that it was not adjusted to the evidence because Dr. Grantier’s alleged negligence was not in failing to provide proper treatment for meningococcemia but in failing to provide any treatment for that disease at all. We find this contention to be without merit. The central issue being litigated in the case was whether Dr. Grantier was negligent in his treatment of the decedent, and the charge clearly did address that issue.

4. At the close of the evidence, the court charged the jury that Dr. Grantier had a duty, arising from the doctor-patient relationship, “to disclose [the decedent’s] condition to her mother as he knew it.” During their deliberations, the jury sought clarification of the nature of this duty, asking the court: “Does the doctor have to disclose what he suspects or only what he knows prior to releasing the patient?” Rejecting requests by the plaintiff for an instruction that a physician is under a duty to disclose any harmful medical condition which he has any reason to suspect might exist, the court again charged the jury that Dr. Grantier had a duty to disclose the child’s condition to the plaintiff and further charged them as follows: “And in regard to your question concerning what he suspects, it will be a question for you, the jury, to determine in the case as to whether or not there was a duty upon the doctor to disclose what he suspected to the patient in this case, taking into consideration all the facts and all the circumstances surrounding the case, and taking into consideration the medical expert testimony on that issue in the case.”

Decided April 5, 1990

Rehearing denied April 19, 1990

Bedford, Kirschner & Venker, Thomas J. Venker, Andrew R. Kirschner, Jackson Bedford, Jr., for appellant.

Sams, Glover & Gentry, Jerry L. Gentry, Downey, Cleveland & Parker, Lynn A. Downey, Russell B. Davis, for appellees.

We find no error. Whether Dr. Grantier’s awareness or suspicion of the possibility that the child had meningococcemia was of such strength that it should have been communicated to the decedent’s mother or otherwise acted upon was for the jury to determine, and to have given the instructions requested by the plaintiff would have been tantamount to directing a verdict on the issue.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0381.
    JORDAN v. THE STATE.
    (393 SE2d 461)
   Deen, Presiding Judge.

The appellant, Marion Jordan, was convicted of child molestation of his eleven-year-old niece. At the time of the alleged molestation on July 19, 1986, Jordan was living with his brother’s family in a trailer. According to the victim, Jordan wet his finger with shampoo and stuck it in her vagina. Some bleeding resulted; the victim’s older sister observed Jordan wiping his finger off on the victim’s sheet, and later revealed the molestation by showing the victim’s blood-stained panties to their mother. The victim had not told anyone about it because Jordan had threatened to beat her half to death until she turned purple if she did.

Two days after the incident, Jordan gave a statement to an investigating officer, in which he indicated that he often noticed the victim and her sister lying on the floor or couch with their “butts shining”; he also acknowledged that he had thought about touching the victim through the pants, but denied ever having done so. Jordan denied drinking anything the day of the incident, but stated that he had a fifth of MD 20/20 the day before and a half pint on the day of the interview. The victim’s older sister testified, however, that on the day of the molestation, Jordan had been drinking heavily, as was his wont. Held:

1. Jordan’s declared defense was that the actual outlaw was the victim’s step-brother, Clarence Eugene Outlaw. The juvenile court had adjudicated him delinquent on a petition that charged him with four episodes of child molestation with four different individuals, one of whom was the victim in the instant case. The charge regarding the victim, which involved a different act and time than the incident for which Jordan was charged, was dismissed when the victim was held to be incompetent to testify. Outlaw was adjudicated delinquent only on two charges involving oral sodomy with two boys. (The fourth charge involving another girl, also was dismissed.)

The State did not call Outlaw as a witness, but Jordan did. Because Outlaw was a juvenile, the trial court appointed counsel to represent him, and upon advice of that counsel, Outlaw asserted his privilege against self-incrimination with regard to any questions about his possible molestation of the victim at any time. The trial court would not allow defense counsel to ask Outlaw in the presence of the jury any question that would require invoking the privilege. On appeal, Jordan contends that the trial court erred in allowing Outlaw to assert that privilege, and further in refusing to allow invocation of the privilege in the presence of the jury.

Since the delinquency petition charge regarding Outlaw’s stepsister was dismissed because of the step-sister’s incompetence as a witness at that time, it would appear that the trial court was correct in concluding that jeopardy had not attached in the juvenile court proceeding. In a non-jury case, jeopardy attaches when the judge begins to hear evidence. White v. State, 143 Ga. App. 315 (2) (238 SE2d 247) (1977). The trial court properly allowed Outlaw to assert his privilege against self-incrimination with regard to the charges brought in the delinquency petition, over Jordan’s objection that jeopardy had not attached in that prior proceeding. Further, disallowing questioning Outlaw about the delinquency petition charge regarding his stepsister did not deny or infringe upon Jordan’s right of cross-examination of a witness under Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347) (1974), if for no other reason than that Jordan called Outlaw as his own witness and Outlaw was never declared a hostile witness.

In a civil case, the jury may draw an inference of guilt from a privileged refusal to testify, but not in a criminal case. Simpson v. Simpson, 233 Ga. 17 (209 SE2d 611) (1974). Jordan’s claim of a right to have his own witness in a criminal case actually assert his privilege in the presence of the jury is sustained by no authority. As Jordan notes, the Supreme Court by footnote has intimated that “the assertion by a witness of his Fifth Amendment rights in the jury’s presence need not be harmful, and in many instances would be appropriate.” Lawrence v. State, 257 Ga. 423, 425 (360 SE2d 716) (1987). However, we do not consider the instant case to be one of those “many instances.”

Decided April 2, 1990

Rehearing denied April 19, 1990.

Wm. Davis Hentz, for appellant.

Ralph Van Pelt, Jr., District Attorney, Lowell K. Lawson, Assistant District Attorney, for appellee.

2. Jordan proffered the testimony of a former police officer, recounting Outlaw’s statement (given during the investigation of the delinquency petition) that he had wanted to perform oral sex on his step-sister, but the trial court excluded the testimony. Generally, such third party declarations against penal interest are inadmissible. Green v. State, 242 Ga. 261 (14) (249 SE2d 1) (1978). The United States Supreme Court relaxed the declaration against interest exception in a particular case regarding a third party’s confession to having committed the very act for which the defendant was on trial. Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973). Relaxation of the general rule, however, is inappropriate in the instant case, where the third party statement concerned an act separate from and irrelevant to the subject matter of the trial.

3. The trial court did not err in finding the victim to be a competent witness. She correctly explained the difference between telling the truth and lying, and understood that she was obligated to tell the truth at trial, and that she was subject to punishment if she did not. Hester v. State, 187 Ga. App. 873 (1) (371 SE2d 684) (1988).

4. Contrary to Jordan’s contention, the evidence authorized a rational trier of fact to find Jordan guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0481.
    KENNEY v. GILMORE et al.
    (393 SE2d 472)
   Deen, Presiding Judge.

Ms. Kenney, a former employee of appellee GIT Travel, Inc. (of which appellee Gilmore is head), brought a defamation action against Gilmore and the travel agency. She contended that, by disclosing unfavorable and allegedly untrue information to United Air Lines’ employment agent, Equifax, the defendants had caused United to reject her job application. Gilmore and GIT answered, denying all allegations and counterclaiming for costs and damages on the basis that Kenney’s defamation action was frivolous. Defendants/appellees then moved for summary judgment, and the trial court granted the motion. Ms. Kenney appeals, enumerating as error (1) the trial court’s ruling that there was no publication of the allegedly defamatory information, (2) the trial court’s finding that the record contained no evidence of malice on appellees’ part, and (3) the court’s not permitting the malice issue to go to the jury. Held:

1. According to the record before us, Ms. Kenney had left GIT under unpleasant circumstances, including at least one quarrel with Gilmore and allegations that her manner and performance had caused the agency to lose at least one major client. Ms. Kenney applied for a position with United, listing GIT as a former employer and signing an authorization for United to contact those listed on the application. A representative of Equifax, which United had engaged to screen the applicants, telephoned the travel agency and talked with Mr. Gilmore, who allegedly stated that Ms. Kenney was insubordinate, had caused the agency to lose clients, and would not be rehired should the opportunity arise. A second Equifax representative called some time later to verify the written report of the initial telephone call; this person’s report was substantially identical to the previous one.

When Ms. Kenney learned that her application had been rejected on the basis of information gathered by Equifax, she brought the action below. The defendants asserted that it was Equifax, not they, who had initiated the inquiry; that the information given was accurate; and that they bore Ms. Kenney no ill will.

In granting the motion for summary judgment, the trial court, citing OCGA § 51-5-1 (b), held as a matter of law that no “publication” of the allegedly defamatory matter had occurred and that, since according to the statute “publication ... is essential to recovery,” a defamation action would not lie. The court pointed out in its order that the only communication of the challenged matter was between Gilmore, a former employer, and Equifax, the agent of a prospective employer; and that Kenney had expressly authorized such communication. In other words, the only persons to whom the challenged information was communicated were those authorized to receive the information. Thus no publication, in the sense contemplated in the statutory scheme, occurred at all. Monahan v. Sims, 163 Ga. App. 354 (294 SE2d 548) (1982). Furthermore, in the circumstances below, the alleged defamation might have been deemed to have been “invited.” See Georgia Power Co. v. Busbin, 249 Ga. 180 (289 SE2d 514) (1982).

Decided April 3, 1990

Rehearing denied April 19, 1990

Hogan, Casey & Cooper, James D. Hogan, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellees.

2. Moreover, as the trial court noted in its order granting summary judgment, the communication was protected by a privilege. Georgia courts have long recognized that a prima facie privilege shields statements made concerning a current or former employee by a current or former employer to one, such as a prospective employer, who has a legitimate interest in such information. See, e.g., Williams v. Cook, 192 Ga. App. 811 (386 SE2d 665) (1989); Carter v. Willowrun Condo. Assn., 179 Ga. App. 257 (345 SE2d 924) (1986); Land v. Delta Airlines, 147 Ga. App. 738 (250 SE2d 188) (1978). The privilege is a qualified one and can be vitiated by evidence of actual malice. OCGA § 51-5-9. The plaintiff has the burden of proving the existence of actual malice. Meyer v. Ledford, 170 Ga. App. 245 (316 SE2d 804) (1984); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (60 SE2d 802) (1950). We find the record devoid of any evidence of actual malice. There being no genuine issue of material fact, summary judgment was therefore proper. Meyer v. Ledford, supra.

We find no merit in any of appellant’s enumerations.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0517.
    O’NEAL v. WINN-DIXIE OF ATLANTA, INC. et al.
    (393 SE2d 473)
   Deen, Presiding Judge.

Appellant O’Neal was injured when she slipped on an “icy patch” on a concrete ramp providing egress from a grocery store operated by appellee Winn-Dixie Atlanta, Inc. (Winn-Dixie), and located in a shopping center owned by appellee Halpern Enterprises, Inc. (Halpern). She brought a negligence action against Winn-Dixie and Halpern, and on August 7, 1989, the trial court granted both defendants’ motions for summary judgment on the basis that the undisputed facts demonstrated that Ms. O’Neal’s knowledge Qf the alleged icy condition was equal or superior to that of defendants. On August 11, 1989, Ms. O’Neal filed inter alia a motion for reconsideration or in the alternative for new trial. The trial court denied the motion on August 31, 1989, and on September 27 Ms. O’Neal filed a notice of appeal, asserting four errors. Winn-Dixie and Halpern have filed motions to dismiss, alleging that the notice of appeal was untimely filed. Held:

1. Because appellees’ motions to dismiss are predicated on jurisdictional grounds, we must first consider the motions as a means of determining whether we should — or may — address appellant’s enumerations of error. Both appellees/movants contend that the appeal is untimely because, although the notice of appeal was filed only twenty-seven days after entry of the order denying reconsideration and new trial, the filing did not occur until some fifty-one days after entry of the order granting summary judgment, which is the judgment from which Ms. O’Neal actually appeals. Appellees contend that a motion for reconsideration does not belong to the category of pleadings which operate to extend the normal thirty-day period for the filing of a notice of appeal; and, further, that although a motion for new trial does operate to extend the filing period, it does so only when a motion for new trial is the appropriate motion in the particular procedural situation. Appellees urge that, “[b]ecause the judgment is one of law and does not involve the factual resolution of a jury verdict, it has been held repeatedly that a motion for new trial is not the proper vehicle to obtain a reexamination of the legal conclusions solely involved in a grant of summary judgment. [Cits.]” Sands v. Lamar Properties, 159 Ga. App. 718, 721 (285 SE2d 24) (1981).

Examination of appellant’s motion for reconsideration or in the alternative for new trial reveals that, as in Sands, supra, the grounds cited consist not of “contested facts . . . [but of] the trial court’s conclusions of legal results emanating from the undisputed facts.” Id. at 719. As the Sands court pointed out: “[B]ecause the grant of summary judgment is a judgment on the merits [cit.], it is manifest that it is a factual as well as a legal resolution by the trial court. [Cits.] Where there is no genuine dispute of material fact and the admitted facts point to the right of one party to a judgment as a matter of law, then summary judgment is the proper remedy. [Cit.]” Id. at 720.

In the instant case the trial court’s order granting summary judgment expressly alludes to the absence of dispute as to the facts constituting the dispositive issue. Thus, as in Sands, “[objections which go to the judgment only, and do not extend to the verdict [i.e., the facts], cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree.” Id. at 719, citing Barber v. Barber, 157 Ga. 188 (121 SE 317) (1924). See also State Farm Mut. &c. Ins. Co. v. Yancey, 188 Ga. App. 8, 9 (371 SE2d 883) (1988). In the instant case, then, “[b]ecause the notice of appeal . . . was not timely filed in relation to the date of the entry of summary judgment, and a motion for new trial could not be used to challenge the propriety of the entry of such a judgment by the trial court, the motion for new trial did not toll the time of appealing. An appeal which is not timely filed properly is subject to dismissal.” Shine v. Sportservice Corp., 140 Ga. App. 355 (231 SE2d 130) (1976). See also Bigham v. Wright, 194 Ga. App. 194 (390 SE2d 109) (1990).

Decided April 3, 1990

Rehearing denied April 19, 1990

Ellen Gettinger, for appellant.

Fain, Major & Wiley, Donald M. Fain, Richard Kopelman, Gene A. Major, Sam F. Lowe III, for appellees.

2. We lack jurisdiction to address appellant’s enumerations of error.

Appeal dismissed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0596, A90A0597.
    WESTWIND CORPORATION v. WASHINGTON FEDERAL SAVINGS & LOAN ASSOCIATION (two cases).
    (393 SE2d 479)
   Sognier, Judge.

Westwind Corporation filed two appeals in the Superior Court of Hall County from writs of possession granted by a magistrate court to Washington Federal Savings & Loan Association. Both appeals were dismissed under OCGA § 9-11-41 (b) for failure to prosecute. This opinion consolidates Westwind Corporation’s appeals from those dismissals.

1. Appellant enumerates five errors regarding the writs of possession issued by the magistrate court. The record affirmatively establishes that the superior court did not rule on any matters involving the merits of appellant’s appeals from the magistrate court’s orders. There is thus no ruling on these matters which we can properly consider, “for ‘this court will review and correct only such error as was made in the trial court. . . . (Cit.)’ [Cit.]” Chrysler Corp. v. Marinari, 182 Ga. App. 399, 403 (3) (355 SE2d 719) (1987).

2. The orders dismissing appellant’s appeals recite that the actions were dismissed because neither appellant nor counsel for appellant responded to the jury calendar calls of those actions. These orders met the requirements of OCGA § 9-11-52 (a) and (b). Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (1) (289 SE2d 769) (1982). Accordingly, appellant’s fourth enumeration presents no ground for reversal of the superior court’s orders.

Judgments affirmed.

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

Decided April 3, 1990

Rehearing denied April 19, 1990

Harrison Cronic, pro se.

Campbell, Martin & Manley, David B. Manley III, for appellee.