text:
    A92A1859.
    A92A1860.
    PCT SERVICES, INC. v. POPE et al. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. POPE et al.
    (430 SE2d 139)
   Cooper, Judge.

Appellee Ruth Pope brought a negligence action against MARTA to recover for injuries she sustained when she slipped and fell on a sheet of ice covering the entrance to the East Point MARTA rail station. Mrs. Pope’s husband was subsequently added as a party-plaintiff and asserted a claim for loss of consortium. MARTA filed a third-party complaint against PCT Services, Inc. (“PCT”), a company with which MARTA contracted to inspect and clean their MARTA stations. In separate appeals, both PCT and MARTA allege that the trial court erred in denying their motions for summary judgment.

Construing the evidence most strongly in favor of appellees as respondents on motion for summary judgment, the record reveals that on Sunday, December 17, 1989, the City of Atlanta was hit with an ice storm. The following day Mrs. Pope entered the East Point MARTA station to ride the rail to work. Mrs. Pope testified that she was familiar with the East Point MARTA station because she took it back and forth to work each day. On the day before her fall, Mrs. Pope saw ice in the parking lot and on the curb around the station but was able to enter and exit the station without incident. The next morning, the weather was rainy and cold, and Mrs. Pope noticed that ice had formed on the trees and assumed the temperature was freezing. When Mrs. Pope got out of the car, she did not see ice in the parking lot but assumed it was there because it had been there the previous morning. Because of the rain, Mrs. Pope held an umbrella close to her face to shield herself from the rain. Although Mrs. Pope walked cautiously and looked downward in front of her feet, she slipped and fell on a piece of ice near where she had seen ice the previous morning. Mrs. Pope testified that she did not see the ice on which she slipped but that the area around her was shiny like it was wet. There is evidence that approximately one hour before Mrs. Pope fell, another woman fell in the same area. However, the first fall was not reported to MARTA until the following day, and MARTA disavows any knowledge of any fall prior to Mrs. Pope’s. The officer who responded to Mrs. Pope’s fall testified in his deposition that the ice on which Mrs. Pope slipped was “black” ice, which is invisible whether it is wet or dry. There is no evidence that the ice in the parking lot and around the curbs resulted from anything other than natural accumulation.

“ ‘In order for a plaintiff in a slip and fall case such as this to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. Stated another way, liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risk and dangers incident to the known condition. Thus, in cases such as the instant one, where an invitee has slipped and fallen on a foreign substance such as ice, knowledge is the decisive issue and the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ . . . [Cit.]” Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). It is undisputed that both MARTA and Mrs. Pope had knowledge of the general inclement weather conditions. However, there is no evidence that either had knowledge of the specific hazard — the black ice — on which appellant slipped. MARTA suggests in its brief that Mrs. Pope’s knowledge of the ice in the area where she fell may have been better than MARTA’s, since Mrs. Pope noticed the ice there when she successfully traversed the area the previous day. Notwithstanding whether Mrs. Pope’s knowledge was better than MARTA’s, nothing in the record suggests that MARTA’s knowledge of the specific hazard might have been superior to Mrs. Pope’s knowledge.

Appellees rely on Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982). In Telligman, we found that the corrective measures taken by defendant, including maintenance crews which were present “manually chipping away ice, spreading salt and roping off hazardous areas,” authorized a finding that defendant had at least constructive knowledge of the invisible patch of ice at its business entrance. Telligman, supra at 15. Also, in Nicholson v. MARTA, 179 Ga. App. 173 (345 SE2d 679) (1986), we found that MARTA had constructive knowledge based on its actions in assigning maintenance crews to clear ice and close areas where dangerous icing conditions were present. However, this case is more like Speaks v. Rouse Co. of Ga., 172 Ga. App. 9 (321 SE2d 774) (1984), in which an ice storm struck the city on a Tuesday, and by the following Sunday some of the ice and snow had melted. The plaintiff went to the defendant’s mall, where she stayed for approximately three hours during which time the temperature dropped. The plaintiff slipped and fell on a thin film of “invisible” ice, which was apparently caused by the refreezing of some of the melted snow and ice. After noting that there was “no affirmative duty on the part of [the defendant] to remove the natural accumulation of snow and ice, nor to take actions designed to prevent the possibility of refreezing (depending upon the vagaries of the weather),” we concluded that, unlike Telligman, the facts did not “present a situation in which [the defendant] knew of the potential hazard and [the plaintiff] did not.” Speaks, supra at 11. We again recognize the difficulty of reconciling Telligman with Speaks, see Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985), but conclude that Telligman was expressly limited to its facts recited above, which were deemed “central” to the case. Such facts are not present in this case, and appellees’ argument that MARTA was negligent in not discovering or removing the ice from its premises has been decided adversely to them. See Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970); accord Hancock v. Abbitt Realty Co., 142 Ga. App. 739 (1) (236 SE2d 860) (1977).

For the foregoing reasons, appellants’ respective motions for summary judgment should have been granted.

Decided March 17, 1993 —

Reconsideration denied March 29, 1993

Barksdale & Mobley, M. Scott Barksdale, for appellant (case no. A92A1859).

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Robert N. Katz, for appellant (case no. A92A1860).

James W. Bradley, for appellees.

Judgments reversed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A2051.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DANIELS et al.
    (430 SE2d 45)
   Cooper, Judge.

In this wrongful death action, we granted appellant’s application for discretionary appeal to determine whether the trial court erred in denying appellant’s motion to modify the judgment against it on sovereign immunity grounds following this court’s decision in an earlier appeal that two of appellant’s employees could not be liable as a matter of law. See Walker v. Daniels, 200 Ga. App. 150 (1) (407 SE2d 70) (1991).

Appellees’ son drowned in a campus pool. On the evening of the drowning, appellant’s employees had closed and locked the pool, cancelling the usual recreational swim period because they had not hired lifeguards for the new term. However, two students who had worked as lifeguards at the pool in the past convinced the campus police dispatcher to have a policeman unlock the pool. The pool was opened, with those two students serving as lifeguards, and the drowning occurred. Appellees sued appellant and various individuals. After a jury trial, judgment for $1,500,000 was entered against appellant, two of appellant’s full-time employees and one of the student lifeguards. On appeal, we reversed the judgment as to the two full-time employees but affirmed as to appellant and the student lifeguard. Appellant then moved to limit the judgment on sovereign immunity grounds to $250,000, the coverage available under its self-insurance plan. Appellant argued that its excess insurance policy would have covered the liability of the full-time employees, but did not cover the liability of the student lifeguard. Appellant’s motion was denied and this appeal followed.

The parties agree that appellant’s waiver of immunity in this case is governed by former Ga. Const. 1983, Art. I, Sec. II, Par. IX, which provided that the sovereign immunity of a State agency with respect to a tort claim was waived if and to the extent the claim was covered by insurance. See Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). At the time this drowning occurred, appellant had two insurance policies in effect. The first was a self-insurance plan and covered the liability of insureds up to $250,000 per occurrence. The second was a comprehensive general liability insurance policy issued and administered by the Department of Administrative Services (“DOAS”), another State agency, which covered the liability of insureds up to $5,000,000 per occurrence. Both policies contained almost identical provisions which defined insureds to include “any person^) allowed to assume a temporary or permanent position” within the university system. Appellant as self-insurer interpreted this provision to include the student lifeguard. However, DOAS informed appellant that, despite the fact that its policy contained a definition of “insured” almost identical to that in the self-insurance plan, the excess insurance policy did not cover the student lifeguard.

Decided March 3, 1993 —

Reconsideration denied March 29, 1993

Michael J. Bowers, Attorney General, Dennis R. Dunn, Alfred L. Evans, Jr., Senior Assistant Attorneys General, for appellant.

Appellant contends that, because the excess insurer stated that it was denying coverage, appellant’s immunity was not waived and the trial court was without jurisdiction to enter a judgment in excess of $250,000, regardless of the strength or validity of appellees’ argument that the insurer’s stated denial of coverage is wrong. Where the plain terms of the policy provide that there is no coverage for a claim, or where the insurer has established in a declaratory judgment action that it is not obligated to pay a claim, there is no waiver of sovereign immunity. See Ward v. Bulloch County, 258 Ga. 92 (365 SE2d 440) (1988); Dugger v. Sprouse, 257 Ga. 778 (364 SE2d 275) (1988). However, we cannot accept appellant’s position that waivers of sovereign immunity can be abrogated and courts can be deprived of jurisdiction by a simple statement by an insurer that it denies coverage. Where, as here, plaintiffs have made a prima facie showing of insurance coverage and there has been no finding or ruling to the contrary, the court has jurisdiction under former Ga. Const. 1983, Art. I, Sec. II, Par. IX unless and until a lack of coverage is established. Accordingly, the trial court did not err in denying appellant’s motion.

Judgment affirmed.

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

William J. Murray, for appellees.


author: Pope, Chief Judge.

text:
    A92A2326.
    DUNN v. THE STATE.
    (430 SE2d 50)
   Pope, Chief Judge.

Defendant Sylvester Dunn appeals his conviction and sentence for violation of the Georgia Controlled Substances Act for the sale of cocaine.

1. In his first enumeration of error, defendant argues the trial court erred in admitting into evidence the cocaine which defendant was charged with selling to an undercover agent. Defendant was tried jointly with co-defendant Tommy W. Welch. Just as in the appeal of the co-defendant’s conviction, we conclude the State proved an adequate chain of custody for admission of the evidence. See Welch v. State, 207 Ga. App. 27, 28 (4) (427 SE2d 22) (1992). We reject defendant’s argument that the evidence failed to establish the substance in the exhibit was the substance purchased from defendant.

2. For the reasons set forth in Division 5 of Welch v. State, we reject defendant’s argument that reversible error was created by the prosecutor’s statement, during the opening statement to the jury, that one of the other co-defendants had pled guilty.

3. Defendant also argues the trial court erred in failing to declare a mistrial or failing to instruct the jury to disregard a statement made by one of the arresting officers. The officer testified that one of the two locations involved in the undercover operation which led to defendant’s arrest was the residence of defendant Dunn. When asked how the locations were known to him, the officer responded they were known as crack houses. After this testimony, in the course of questioning witnesses, the prosecutor twice referred to the house as a crack house. We agree with defendant that such testimony and the subsequent references were objectionable on the ground that they improperly placed defendant’s character in evidence. See McBrayer v. State, 79 Ga. App. 132 (1) (53 SE2d 216) (1949) (in which, in a case involving prosecution for possession of illegal liquor, we ruled the trial court erred in denying defendant’s motion for mistrial upon the admission of testimony that defendant’s house had a reputation in the community as a source of bootleg liquor). Compare Meaux v. State, 176 Ga. App. 345 (1) (335 SE2d 741) (1985) (in which we held it was not error to permit the undercover officer to testify concerning the reputation of a lounge where defendant was found but did not dwell in or own). In this case, however, defendant raised no objection to the testimony. “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Hight v. State, 195 Ga. App. 727, 730 (394 SE2d 636) (1990). We are not persuaded by defendant’s argument that the trial court had an affirmative duty to declare a mistrial or issue corrective instructions despite defendant’s failure to raise an objection.

Decided March 8, 1993 —

Reconsideration dismissed March 29, 1993.

Shurling & Miller, Judith E. Shurling, for appellant.

William A. Foster III, District Attorney, Thomas V. Driggers, James E. Barker, Assistant District Attorneys, for appellee.

4. We agree, however, that the life sentence imposed on defendant must be reversed. The record shows the State sought a life sentence pursuant to OCGA § 16-13-30 (d) because defendant had been convicted of two previous offenses of selling cocaine. The State concedes, however, that the previous convictions were not final at the time the sentence was imposed in the case at hand because the previous convictions were on appeal. When previous convictions are relied upon as the ground for imposing enhanced punishment, the convictions must be final. See Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969) and Mitchell v. State, 202 Ga. App. 100 (2) (413 SE2d 517) (1991) (applying the stated rule to sentencing for repeat offenders pursuant to OCGA § 17-10-7). This rule also applies to enhanced punishment pursuant to OCGA § 16-13-30 (d).

Judgment affirmed in part and reversed in part.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0197.
    FARMER v. THE STATE.
    (430 SE2d 397)
   Beasley, Presiding Judge.

Sandra Farmer was convicted of theft by deception. OCGA § 16-8-3. Her motion for a new trial was denied and she appeals.

1. Farmer contends the trial court erred by denying her motion for a directed verdict of acquittal because a fatal variance existed between the allegations of the indictment and the proof at trial.

The indictment alleged that between March 1, 1991, and November 25, 1991, with the intent of depriving the victim of the property by deceitful means and artful practice, Farmer unlawfully obtained property and funds with a value of greater than $500 from the elderly victim “by telling [the victim] that she needed money to help a sick friend . . . which she knew to be false.” Farmer argues that although the evidence may have shown a deceitful scheme to deprive the victim of money, the State failed to prove that she told the victim the money was for a sick friend.

Not every variance between the allegata and probata is fatal, but no averment in an indictment may be rejected as surplusage that is descriptive either of the offense or the manner in which it was committed. Walker v. State, 146 Ga. App. 237, 242 (246 SE2d 206) (1978). Accord Harrison v. State, 192 Ga. App. 690, 691 (385 SE2d 774) (1989). Because the specific allegation in issue refers to the manner in which the offense was committed, a variance would be fatal.

The trial transcript shows that evidence was adduced that Farmer told the victim she needed to borrow money to pay medical bills and other expenses after she and a friend were in an automobile accident. The victim also loaned Farmer money to buy a car, and wired funds to her in Las Vegas when she called him from there and asked him for money. Over a period of about a year and a half the victim periodically lent Farmer sums , between $200 and several thousand dollars at her request, depleting his entire life savings. Farmer told him that she had retained attorney Bobby Lee Cook to represent her in litigation concerning the accident; that she would eventually receive a large settlement; and that Cook would repay him out of the settlement. Cook testified at trial that he had never met Farmer and that she was not a client.

As noted by Farmer, the victim testified on direct examination that he “couldn’t say” whether Farmer had asked him for money for her own medical bills or those of a friend. However, the victim testified further as to this.matter on cross-examination: “Q: You don’t know Maria Chastain, and you didn’t give her any of this money? A: No. Q: You didn’t ever do that? A: No. This woman had a wreck, and I don’t know who the woman was. Q: It might have been Maria Chastain? A: What? Q: It might have been Maria Chastain that was in the wreck? A: I don’t know who the woman was that had the wreck. She [Farmer] said it was a friend of hers I believe is what she told me.” Maria Chastain’s subsequent testimony indicated that she was a friend of Farmer’s.

“In arriving at a verdict, the jury, from facts proved .. . may infer the existence of other facts reasonably and logically consequent on those proved.” OCGA § 24-4-9. The jury could draw a reasonable inference from this testimony that Farmer told the victim she needed money to pay medical bills for the friend who had been in the accident with her. Since the allegation in the indictment was proved, no variance exists. Compare Gentry v. State, 202 Ga. App. 465 (414 SE2d 696) (1992).

Because no variance existed, we need not address Farmer’s argument, based on the second prong of the test set forth in DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969), that she was not adequately informed of the State’s case and was unfairly surprised at the discrepancy between the allegation in the indictment and the proof at trial.

Decided March 18, 1993 —

Reconsideration denied March 29, 1993

Hine, Carroll & Niedrach, Paul T. Carroll III, for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

2. Farmer contends that the trial court erroneously admitted into evidence her taped in-custody statement because, in the statement, Farmer referred to a prior conviction for which she was then making restitution. Farmer argues that this reference was irrelevant and prejudicial because it improperly placed her character in issue. See Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989). The Robinson statement is distinguishable because it contained an explicit confession of prior crimes. In Farmer’s statement she said only: “all I wanted to do was pay him his money back like I’ve been paying on this other thing that happened a year ago. I . . . got saved in church and I want to do what’s right.” No prior offense or conviction was referenced, the word “restitution” was not mentioned, her character was not placed in issue, and the statement was not prejudicial.

Farmer also argues that the statement was inadmissible because she had not been given, ten days prior to trial as required by OCGA § 17-7-210, a copy of the waiver of counsel form she signed before making the statement. This document was not admitted into evidence, and this form is not encompassed within that statute. Dean v. State, 168 Ga. App. 172, 173-174 (2) (308 SE2d 434) (1983).

3. Farmer maintains that the trial court erred by failing to charge on OCGA § 16-8-3 (b) (5), as requested. That subsection of the theft by deception statute provides, in pertinent part: “A person deceives if he intentionally: . . . Promises performance of services which he does not intend to perform or knows will not be performed.” It is not applicable here. Banton v. State, 57 Ga. App. 173, 174 (194 SE 827) (1938) (subsection (5) refers to obtaining money under a definite contract for services). A charge request is properly refused if not authorized or adjusted to the evidence. Hayes v. State, 193 Ga. App. 33, 37 (8) (387 SE2d 139) (1989).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A1664.
    BELL v. THE STATE.
    (430 SE2d 124)
   Birdsong, Presiding Judge.

Deric Bell appeals his conviction for trafficking in heroin. He contends the trial court erred by violating OCGA § 17-8-75 in denying his motion for a mistrial because of improper comments in the prosecutor’s closing argument and also erred by denying his motion for mistrial after the prosecutor improperly commented upon Bell’s failure to testify. Bell also contends the trial court erred by denying his motion for recording the entire trial proceedings and by refusing to place proper limits on the prosecution’s cross-examination of a defense witness. Held:

1. Bell’s enumeration of error concerning the complete recording of the full proceedings is without merit. Hodge v. State, 262 Ga. 242, 243 (416 SE2d 518); Smith v. State, 251 Ga. 229 (304 SE2d 716).

2. Bell contends that the trial court violated OCGA § 17-8-75 by overruling his motion for a mistrial after the prosecutor in closing argument called the jury’s attention to certain notorious cases involving violent criminal acts, the ski-mask rapist case and the Red-Oak murder case, which he contended were irrelevant and unrelated to this prosecution for trafficking in heroin, and were not raised by the evidence. We find no error. In this state, the permissible scope of counsel’s argument is very wide (Conner v. State, 251 Ga. 113, 122 (303 SE2d 266)), and the prosecutor’s argument was within permissible bounds. Cooper v. State, 260 Ga. 549, 550 (397 SE2d 705).

3. We also find no merit to Bell’s contention that the prosecutor improperly commented upon his silence when the prosecutor argued that the jury would have to decide whether the arresting officer or Bell was telling the truth. This argument was directed to a statement made by Bell at the time of his arrest, which was received in evidence, that he was not involved in drug trafficking. Under the circumstances there was no error.

4. We also find Bell’s contention that the trial court erred in refusing to limit the scope of the cross-examination of a defense witness to be without merit. The witness, a former DEA agent, was offered by the defense as an expert in the illegal drug trade. Under the circumstances, the prosecutor was authorized to cross-examine the witness about other aspects of drug trafficking, including its associated violence. Stone v. State, 250 Ga. 718, 719 (300 SE2d 500).

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in Divisions 1 and 3 and the judgment.

Decided March 12, 1993 —

Reconsideration denied March 30, 1993

Anna Blitz, for appellant.

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


text:
    A92A1734.
    ROSWELL PROPERTIES, INC. v. SALLE.
    (430 SE2d 404)
   Birdsong, Presiding Judge.

Roswell Properties, Inc. appeals from a judgment, based upon a jury verdict, in favor of Sarah Salle, individually and as executrix of the estate of her late husband, Gilbert Salle, (collectively “Salle”) on Salle’s claims for conversion of earnest money and retention of other payments, conversion of personal property, attorney fees, and punitive damages. The record shows Salle sued Roswell Properties for its actions concerning the proposed sale of a house.

Salle contracted with Roswell Properties to purchase a house that Roswell Properties would build in one of its subdivisions. As part of the agreement, Salle made certain earnest money payments and also paid for an addition to the house. For whatever reason, construction of the house did not proceed as contemplated, and the house was not ready for occupancy as expected. Consequently, the completion date of the house was repeatedly extended. Ultimately, however, Roswell Properties notified Salle that if the purchase did not close by a date certain, Roswell Properties would sell the house to another.

The sale to Salle did not close, and Roswell Properties sold the house to another party. After Roswell refused Salle’s demand for return of monies she claimed she was owed, Salle sued and recovered a judgment. This appeal followed. Held:

1. Roswell Properties’ first enumeration of error contends the trial court erred by denying its motion to stay the proceedings and compel arbitration. Pretermitting whether the contract authorized arbitration under 9 USC § 1 et seq., the record shows the trial court did not err by denying this motion because Roswell Properties waived any right to arbitration which it might have had. The record shows that rather than submitting to arbitration any disputes with Salle, including whether the house was complete and ready for occupancy, Roswell repudiated the contract by deeming the contract “null and void or cancelled” and by selling the house to a third party. These actions waived Roswell Properties’ right to seek arbitration. National Parents’ Resource Institute for Drug Ed. v. Peachtree Hotel Co., 201 Ga. App. 637, 638 (411 SE2d 884). “An arbitration clause of a contract may be repudiated, waived, or abandoned, by either or both parties to a contract. An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration.” (Citations omitted.) McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 12-13 (345 SE2d 53).

2. Roswell Properties’ second enumeration contends the trial court erred by denying its motion for judgment n.o.v. or in the alternative for a new trial because the verdict is contrary to the law as there was no evidence supporting the conversion and attorney fees claims, and the verdict is contrary to the evidence and strongly against the evidence because no evidence supported Salle’s claims for conversion and attorney fees or her opposition to Roswell Properties’ reliance on the liquidated damages clause of the contract. In enumerations of error 3, 4, and 5 Roswell contends the trial court erred by denying its motion for directed verdict on the issues of conversion, attorney fees, and liquidated damages and in its second enumeration refers us to its arguments in the other enumerations.

We will first consider whether the trial court erroneously denied Roswell Properties’ motion for a new trial and will address the trial court’s denial of the motion for judgment n.o.v. when we consider the denial of Roswell Properties’ motions for a directed verdict.

Denials of motions for new trial on evidentiary grounds will be reversed on appeal only if no evidence supports the verdict. Estfan v. Poole, 193 Ga. App. 507, 509 (388 SE2d 373); Mathis v. Dept. of Transp., 185 Ga. App. 658 (365 SE2d 504). Moreover, after a jury verdict is approved by the trial court, a judgment, supported by the evidence, will not be disturbed on appeal unless there is a material error of law. Archer Motor Co. v. Intl. Business Invest., 193 Ga. App. 86, 88 (386 SE2d 918); Smith v. Clifford H. Pryor &c., 193 Ga. App. 523, 524 (388 SE2d 383). Further, whether a verdict is contrary to the weight of the evidence is a question vested in the trial court’s discretion. The trial court may grant a new trial on these grounds, but appellate courts have no such power. After the trial court approves the verdict, the sole question for this court is whether there is any evidence sufficient to authorize it. Green v. Dillard, 176 Ga. App. 574 (337 SE2d 55), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 857 (360 SE2d 415).

As will be discussed below, the record contains sufficient evidence to support the trial court’s denial of Roswell Properties’ motion for a new trial on each of the grounds asserted. Accordingly, the trial court did not err by denying Roswell Properties’ motion for a new trial.

3. When considering whether the trial court erred by denying motions for directed verdicts and motions for judgment n.o.v., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a “one-way” verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict. Denson v. City of Atlanta, 202 Ga. App. 325, 326 (414 SE2d 312).

(a) On the issue of conversion, the record shows the evidence presented did not demand a verdict for Roswell Properties on any of the grounds asserted. Salle presented evidence showing that under the terms of the contract of sale the earnest money paid was “to be applied as part payment of purchase price of said property at the time sale is consummated,” that she made two earnest money payments in the total amount of $12,500, and Roswell Properties refused to return the earnest money to her after the sale of the house did not close. This evidence authorized submitting to the jury a claim for conversion of the earnest money. Winter Chase Townhomes v. Koether, 193 Ga. App. 161, 163 (387 SE2d 361). The conflicting evidence presented by Roswell Properties merely created a jury issue.

(b) The trial court also did not err by denying Roswell Properties’ motions on the issue of attorney fees. Salle’s complaint claimed attorney fees from Roswell Properties under OCGA § 13-6-11 because of Roswell Properties’ bad faith, stubborn litigiousness, and causing unnecessary trouble and expense. Salle presented evidence tending to show that Roswell Properties breached its contract with her in bad faith because it could sell the house to another for a greater profit.

In this regard, the evidence showing the price to Salle was $153,000, the selling price to the third party was $166,000 and Roswell Properties kept the earnest money and other sums Salle paid for improvements to the house. Other evidence was presented from which the jury could conclude Roswell Properties unreasonably attempted to delay completion of the house, and that Salle had to sue to recover money that should have been returned to her under the contract of sale. Issues concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense are generally questions for the jury. Gorin v. FPA 2, 184 Ga. App. 239, 241 (361 SE2d 193); Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 221 (308 SE2d 564).

(c) Under the circumstances of this case, we also find the trial court did not err by denying Roswell Properties’ motions on liquidated damages. See OCGA § 13-6-7. We must note, however, that trial courts should not ordinarily submit the issue of whether a contract provides for liquidated damages or a penalty to the jury. See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222). This issue should be decided as a matter of law, unless after applying the usual rules of contract construction, an ambiguity remains warranting submitting a factual issue to the jury. See Lineberger v. Williams, 195 Ga. App. 186, 190 (393 SE2d 23). In this case, as neither party objected to the procedure and instead submitted requested charges on the issue, we find no harmful error. One cannot complain of a result he procured or aided in causing (Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696)) and induced error is not an appropriate basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). Moreover, we find as a matter of law that the contract provision did not call for liquidated damages. Therefore, any error resulting from the submission of this issue to the jury was harmless. A party seeking a reversal must show not only error, but harm. Georgia Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328).

“[A] liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to” (Adams v. D & D Leasing Co., 191 Ga. App. 121, 123 (381 SE2d 94)), and to determine the intent, we first look to the contract language. Burns v. Gleason, 183 Ga. App. 245, 246 (358 SE2d 646). This contract provided: “In the event of purchaser’s inability, failure or refusal to close on this contract, purchaser shall forfeit to seller the earnest money which shall be accepted as full payment of all liquidated damages arising from this transaction.”

The test to be employed is established in Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340), i.e., a contract provision will be treated as one for liquidated damages only if all of the following questions are answered affirmatively: First, was the injury caused by the breach difficult or impossible of accurate estimation; second, did the parties intend to provide for damages rather than a penalty; and third, was the stipulated sum a reasonable preestimation of the probable loss from the breach. See Budget-Luxury Inn v. Kamash Enterprises, 194 Ga. App. 375, 376 (390 SE2d 607). “In determining whether a designated sum that is to be paid to one party in the event that the other breaches the contract is a penalty, we must ascertain whether it was inserted for the purpose of deterring the party from breaching his contract, and of penalizing him in the event he should do so, or whether it was a sum which the parties in good faith agreed upon as representing those damages which would ensue if the contract should be breached.” Florence Wagon Works v. Salmon, 8 Ga. App. 197, 199 (68 SE 866). Further, “ ‘where, to secure the performance of the terms of a contract, there is a stipulation for the payment of a fixed, unvarying sum, upon the breach of any of several promises of varying degrees of importance, . . . the sum named will be construed to be a penalty.’ ” Florence, supra at 201.

This contract clause is drafted in terms of forfeiting an unspecified sum of earnest money. Although the labels given in the contract are not determinative (Daniels v. Johnson, 191 Ga. App. 70, 71 (381 SE2d 87)), we also note that there is no indication any effort was made to determine whether the damages for the breach would be difficult or impossible to estimate accurately or to judge whether the earnest money was a reasonable pre-estimation of the probable damages. Also, there is no evidence the provision was the result of any effort by the parties to estimate, in advance, a reasonable and certain sum as liquidated damages, and there is no evidence the earnest money bore any reasonable relationship to the actual damages which might accrue. Instead, the purchaser was to forfeit whatever the earnest money paid happened to be, regardless of when the breach might occur. Florence, supra. Further, contract provisions are generally construed against the drafter (Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (337 SE2d 29)), i.e., Roswell Properties. In addition, in cases of doubt courts favor a construction of the contract holding the provision to be a penalty. Southeastern Land Fund, supra at 231.

Considering these factors, we must find this agreement was a penalty, and not an enforceable liquidated damages provision. Daniels v. Johnson, supra.

Accordingly, the trial court did not err by denying Roswell Properties a directed verdict or judgment n.o.v. on any of the grounds asserted above. Denson v. City of Atlanta, supra; Southern Store &c. Co. v. Maddox, supra.

4. In view of our holding in Division 3a, supra, the trial court did not err by charging the jury on conversion.

5. Roswell Properties asserts that the trial court erred by refusing to delete from the charge on liquidated damages the word “forfeiture.” We find no error. Roswell Properties is not entitled to have the charge given in exactly the terms it wishes, and the charge given, i.e., “the law does not favor forfeiture or penalty,” accurately informed the jury of the law applicable to this issue.

6. Next, Roswell Properties alleges the trial court erred by giving a charge on recovery of chattels. The only argument on the enumeration states: “This is discussed in detail at item 3. The standard of review is substantial error.” As we find no argument in the brief, this issue is deemed abandoned. Court of Appeals Rule 15 (c); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

7. Roswell Properties also contends the trial court erred by charging the jury on unjust enrichment as this theory is inapplicable when there is an express contract between the parties. See Ramsey v. Langley, 86 Ga. App. 544 (71 SE2d 863). Review of the record, however, discloses that Roswell Properties did not object to the charge on this basis. Instead, Roswell Properties objected only because the charge given was not adjusted to the facts. Therefore, we cannot consider this issue because the objection was not made in the trial court, but is raised for the first time on appeal. OCGA § 5-5-24 (a); Lloyd v. Stone Mtn. Mem. Assn., 165 Ga. App. 679, 680 (302 SE2d 602).

8. Roswell Properties contends the trial court erred by refusing to give its requested charge on substantial completion of the project. The requested charge stated: “I charge you that when the project is capable of being used for its intended purpose, substantial completion has occurred.” The charge given by the trial court stated that “it is not strict compliance, but substantial compliance with a contract that is required,” and “where the compensation is due only on the performance of the contract, a literal and strict performance is not required. If the builder was acting in good faith and intending and attempting to perform the contract ... he may recover . . . notwithstanding slight and trivial defects and deviations in performance.” Since these charges substantially covered the principle included within the requested charge, we find no error. It is not error to fail to charge in the exact language requested where the principles embodied in the request were included in the charge given. McCurry v. McCurry, 223 Ga. 334, 335 (155 SE2d 378); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916).

9. Roswell Properties also contends the trial court erred by refusing to give its requested charge no. 18 (a) on personal property. Review of the transcript shows that any issue concerning the failure to give this charge was waived. Roswell Properties objected to the failure to give charge 18, on liquidated damages, and requested charge 18 (b) on personal property, but did not object about requested charge 18 (a). Therefore, the issue was waived. Further, an objection merely stating the party objects to the trial court’s failure to charge a specific numbered request is insufficient to preserve the issue. Lissmore v. Kincade, 188 Ga. App. 548, 551 (373 SE2d 819). The objection must be distinctly stated for a “ ‘reasonable’ trial judge to understand its nature, enabling him to rule intelligently on the specific point.” Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472).

10. Finally, Roswell Properties contends the trial court erred by refusing to give its requested charge 20 on attorney fees. The requested charge stated “the expenses of litigation are not generally allowed as a part of the damages. In order for the party to receive any litigation cost they must establish that the defendant acted in bad faith, did not have a colorable defense or caused the plaintiff unnecessary trouble and expense. Accordingly, if you find that the defendant had a good faith defense, then you should not grant any litigation costs.” This is not an accurate statement of the law on the award of litigation expenses and attorney fees under OCGA § 13-6-11, and is misleading because it states that a good faith defense, a defense to only one of the grounds for Salle’s OCGA § 13-6-11 claim, would be a complete defense to the entire claim. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (409 SE2d 267). Additionally, a trial court does not err by refusing to give a requested charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges given. See Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823). Accordingly, this enumeration of error is without merit.

Decided March 19, 1993 —

Reconsideration denied March 30, 1993

Mark A. Smith III, for appellant.

B. Thomas Cook, Jr., for appellee.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A92A1752.
    RICHMOND COUNTY v. 0.153 ACRES OF LAND et al.
    (430 SE2d 47)
   Pope, Chief Judge.

Condemnee BP Oil Company owns the land at issue in this condemnation case at the corner of Washington Road and Pleasant Home Road in Richmond County, on which is constructed a convenience store and fuel pumps. Originally the store was operated by an independent third party under contract with the condemnee, but by the time of the trial in this case the contract had expired and condemnee had assumed the operation of the business on the property. Condemnor Richmond County took a strip of land along both road frontages totaling 0.153 acres for the purpose of constructing a right-turn-only lane from Washington Road onto Pleasant Home Road as part of a larger project known as Riverwatch Parkway. The taking also included a permanent easement and two temporary construction easements.

With its declaration of taking, condemnor tendered to the registry of the Superior Court the sum of $109,623 as its estimate of compensation due. At the jury trial of the case, the issue in controversy between the parties was whether condemnee had suffered consequential damages. Condemnor presented the testimony of expert witnesses who testified to their opinion that the taking resulted in no consequential damages and that just and adequate compensation for the taking of the land amounted to no more than $113,500. Over the condemnor’s objection, the trial court permitted condemnee to present evidence of consequential damages. Condemnee presented the testimony of an expert witness who testified to his opinion that the value of the actual taking amounted to $102,500 and that consequential damages to the remainder of the property amounted to $187,500. The jury returned an award of $192,500. Condemnor appeals.

1. Condemnee’s claim for consequential damages was based primarily upon the assertion that access to the property would be impaired by changes to the two roads adjacent to the property made in conjunction with the taking. Relying upon the fact that the existing curb cuts for vehicular access to the property will be replaced when the turn lane is constructed, condemnor argues that the trial court erred by failing to rule as a matter of law that no impairment of access to the property would result and by permitting condemnee to present evidence of impairment. We reject condemnor’s argument. Evidence was presented that the curb cuts would be closer to the corner of the intersection, thereby making ingress and egress more difficult. Evidence was also presented that the newly constructed turn lane would be a continuous movement lane. Before the change, vehicles attempting to make a left turn onto the property could expect both lanes of on-coming traffic to stop for the traffic signal at the corner of the intersection and therefore could turn left between stopped vehicles. After the change, however, vehicles turning left will have to negotiate a third lane of on-coming traffic which will not be required to stop at the traffic signal because the lane will be designed for continuous movement. Expert testimony was presented that the change would make ingress and egress more difficult and hazardous. Sufficiént evidence was thus presented to create an issue for jury determination concerning impairment to access.

2. Condemnor argues the trial court erred in permitting condemnee to introduce evidence of expected damage to its business as part of its claim for consequential damages. We agree. It is undisputed that the taking, at most, resulted in only a partial destruction of the business conducted on the property. When there has not been a total destruction of the business operated by the owner of the property, evidence of damage to the business may not be the basis for compensation except as evidence to help establish the market value of the remainder of the property. Dept. of Transp. v. Consolidated Eq uities Corp., 181 Ga. App. 672 (353 SE2d 603). (1987); Dept. of Transp. v. Kendricks, 148 Ga. App. 242 (250 SE2d 854) (1978); Dept. of Transp. v. Dent, 142 Ga. App. 94 (235 SE2d 610) (1977); Williams v. State Hwy. Dept., 124 Ga. App. 645 (2) (185 SE2d 616) (1971). The testimony of condemnee’s expert witnesses clearly shows that their estimates of the consequential damage to the remaining property consisted of a figure which combined the consequential loss to the fair market value of the remaining real property with the consequential loss to the fair market value of the business as a going concern. Thus, the evidence of consequential damages presented by condemnee improperly included a separate amount for the consequential loss to condemnee’s business.

We reject condemnee’s argument that the combined figure merely represented the total loss to the property. It is true, as condemnee argues, that this court in Kendricks described the real property and the business an owner conducts on it as “one property right.” Kendricks, 148 Ga. App. at 245. We went on, however, to state that “the partial business loss cannot be established as a separate item of damage but is a matter going to the diminution in the value of the property.” Id. Contrary to condemnee’s argument, the term “property” in the above-cited cases does not include the value of an owner-operated business. In regard to an owner-operator of a business, consequential damages are allowed only for damages to the real property, and not, as the condemnee argues, the value of the real property and the business combined as one loss. “When a partial taking damages a business, the market value of the remaining land is affected by the ‘best use rule.’. . . The resulting decrease in the market value of the remaining land is the consequential damage.” (Emphasis supplied and punctuation omitted.) Williams v. State Hwy. Dept., 124 Ga. App. at 647. See also Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (387 SE2d 877) (1990) (in which the Georgia Supreme Court reiterated that evidence of loss of business is admissible to demonstrate the fair market value of land not taken because “business property facing loss of business may suffer a diminution in fair market value”).

The rule is different for a third party, such as a lessee of the condemnee, who operates a business on the condemnee’s property. A lessee-operator of a business upon the condemned property may be entitled to an award for partial loss of business, separate from the award to the owner for consequential damage to the real property. “When the business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. [Dept. of Transp. v. Dent, 142 Ga. App. 94 (235 SE2d 610) (1977).] On the other hand, when the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is nc; remote or speculative. Kendricks, [148 Ga. App. 242, supra].” Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980). Condemnee argues, therefore, that this rule unfairly discriminates between owner-operators of businesses and lessee-operators and therefore violates the constitutional guarantee of equal protection. Even if we were persuaded by condemnee’s argument, we are constrained by the Georgia Supreme Court’s adoption of this court’s case law to affirm the rule.

Decided March 4, 1993 —

Reconsideration denied March 30, 1993

Burnside, Wall, Daniel & Ellison, Harry D. Revell, for appellant.

Hull, Towill, Norman & Barrett, Patrick J. Rice, Alston & Bird, Walter G. Elliott II, for appellees.

Judgment reversed.

Johnson, J., concurs. Carley, P. J., concurs in judgment only.

       We note, however, that the Georgia Supreme Court has indicated that in a proper case it would consider the argument “that application of the appellate case law distinguishing landowner-operated businesses from tenant-operated business violates the Equal Protection Clause of the Georgia and U. S. constitutions.” Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271, n. 1 (404 SE2d 121) (1991).


author: Andrews, Judge.

text:
    A92A1782.
    PITTMAN v. THE STATE.
    (430 SE2d 141)
   Andrews, Judge.

Pittman was indicted for possession of cocaine with’intent to distribute. He was tried and convicted of possession of cocaine and appeals.

Viewing the evidence in the light most favorable to the verdict, Officer Hall with the Bibb County Sheriffs Department testified that on March 1, 1991, he received information from a confidential informer that a Quinn Mason was bringing more than ten pounds of cocaine from California to Macon. A second informer called Officer Hall at about 2:40 p.m. that same day and told him that Pittman and Anthony James, Quinn’s brother, were transporting the cocaine for Quinn in a borrowed black Peugeot. The informer stated that he had actually seen the cocaine in the Peugeot. The informer told Officer Hall that at 2:30 p.m. the Peugeot was parked on Margaret Street and Anthony James was waiting in the car for someone to come and pick up the cocaine.

Based on this information, Officer Hall went to the supposed location of the car, but did not see a Peugeot. After looking on Margaret Street for the vehicle, he passed Pittman driving the Peugeot. Hall followed the Peugeot and observed Pittman in a parking lot of a gym in the vehicle talking to Quinn Mason. Thereafter Pittman drove off towards the Macon shopping mall and Officer Hall called additional officers to help pursue him.

One of the officers called was Officer Wheat, who testified at trial. He stated as of March 1, 1991, he was familiar with Quinn Mason, Anthony James and Pittman and was told of the March 1, 1991 distribution plan. Wheat responded to Hall’s call and stopped Pittman and searched the vehicle. He observed a pair of tennis shoes on the floorboard of the back seat, behind the driver’s seat. During Wheat’s search he also found $812, $800 of which was in $20 bills in a black tote pouch, which was near the driver’s seat.

Officer MacDonald also testified at trial. He stated that he had performed a follow-up search during which he had discovered 20 grams of cocaine wrapped in a napkin, crammed in the toe of a tennis shoe. The cocaine was damp, was sticking to the napkin, and had shaped to the form of the toe. There was testimony that the dampness indicated that the manufacturing of the crack cocaine from cocaine hydrochloride was recent. There was also testimony that the cocaine would be worth up to $4,000 on the street.

After being arrested, Pittman denied that the shoes were his and said that they belonged to his girl friend’s brother, Anthony James. Pittman did not know to whom the crack cocaine belonged. Pittman told one police officer that he thought he was being “set up.”

Several days , after the arrest, Pittman consented to a polygraph and stipulated that the results therefrom would be admissible at trial. The State presented evidence that Pittman registered “deceptive” on all of the critical questions on the polygraph examinations.

The defense called several witnesses. The owner of the Peugeot, Mark Steven McGowan, testified that he loaned his car to Pittman in February 1991 for a couple of weeks so that Pittman’s out-of-town girl friend would have transportation during her visit. McGowan admitted that he was not well acquainted with Pittman.

Pittman’s girl friend, Sonya Mason, testified. She stated that she presently lives in California and that she came to Macon to visit Pittman in February 1991. She stayed for ten days and left on March 1, 1991, the day Pittman was arrested. She testified that the morning of her March 1 departure, Pittman allowed her brother, Anthony James, to borrow the Peugeot, so that she and Pittman could spend some time alone together. She testified that during this period, she and Pittman went to the mall in Pittman’s Cadillac to look for work-out weights. Pittman did not have enough money to buy the $600 or $700 set. After that, they returned home, went by Pittman’s parents’ store at approximately 1:00 p.m., had lunch at a restaurant and then she began her return trip home. She verified that her brother had a pair of shoes like the ones found in the car.

Anthony James testified. He stated that he and Pittman are friends and that he, his sister, and his brother, Quinton, all came to visit Macon around March 1, 1991. James corroborated his sister’s account of how he borrowed the Peugeot. He said that he borrowed the Peugeot on the morning of March 1 and went to get a friend of his so that they could work out. James said that he had his spa bag and his tennis shoes in the Peugeot with him. He testified that he took the gym bag out of the car, but forgot the shoes. James said that there was no reason to believe that Pittman knew that the shoes, or their hidden contraband, was in the car. When asked who put the cocaine in the shoe and to whom the cocaine belonged, James pled the Fifth Amendment. Nevertheless, he stated that he did not learn there was any cocaine in the shoes until after Pittman was arrested.

Defendant’s mother testified at trial. She stated both that she gave Pittman the $800 which was found in the vehicle and that she did not give him that money. Defendant’s father also testified.

Pittman testified at trial. His testimony was consistent with James’. He stated that the shoes found in the car were not his, that he did not know who the owner of the cocaine was and that the money was intended for buying work-out equipment.

1. In his first enumeration of error, Pittman claims that the trial court erred in denying his motion for a directed verdict and his motion for a new trial in that the evidence of constructive possession was outweighed by the evidence of equal access. He also argues that the evidence to convict him was insufficient. This enumeration is without merit. Furthermore, we find that the evidence to convict was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In Pittman’s second enumeration of error, he claims that the trial court erred in its charge to the jury on various aspects of constructive possession in that taken as a whole, the charge was confusing and burden-shifting. He also argues that the charge should have included instructions regarding equal access.

With regard to constructive possession, the court first exhaustively defined and explained actual and constructive possession. Later, the court further elaborated: “Now, I charge you further that while a finding of constructive possession must be based upon some connection between the defendant and the contraband, other than. . . . All right, spatial proximity, this connection may be established by proof of occupancy and control over the vehicle by the defendant with no equal access by others. Under such circumstances in the absence of contrary evidence, a presumption arises that the driver’s in control and possession of the contraband. Now, I charge you that the possession of contraband can be inferred from possession, custody and control of the vehicle in which the contraband was found. This inference, however, is a rebuttable inference which can be overcome by evidence presented during the trial. And I charge you that the jury is authorized to infer that the driver of a car in which contraband is found in the possession of that contraband, this inference, however, is a rebuttable one which can be overcome by evidence presented during this trial, if any.”

Pittman argues that the portion of the instruction which referred to the rebuttable presumption which Pittman’s possession, custody and control of the vehicle created was erroneous. We disagree. The court’s first charge regarding constructive possession closely tracked the language of the Suggested Pattern Jury Instructions for Criminal Cases (Vol. II; IV, R (5); p. 136) and we find no error. Further, there is no error in the latter portion of the charge regarding the rebuttable inference of possession. See generally Dalton v. State, 249 Ga. 720 (292 SE2d 834) (1982).

Further, we reject Pittman’s argument that the trial court erred in failing to instruct the jury regarding the doctrine of equal access. We note that although Pittman submitted several written requests to charge, he did not submit a charge regarding equal access. Although the trial court did not instruct the jury fully on the equal access rule, the court did not entirely omit reference to this rule.

“The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. . . . Here, defendant’s possession of the vehicle was not the sole evidence of his possession of the contraband found in it. Even if the contraband was in the possession of [James], evidence was presented whereby the jury could find that defendant was a party to the offense of possession. Therefore, we find no reversible error in the trial court’s failure to charge the equal access rule.” (Emphasis supplied.) Wright v. State, 194 Ga. App. 739, 741 (2) (391 SE2d 791) (1990); see also Lance v. State, 191 Ga. App. 701 (2) (382 SE2d 726) (1989).

The same result obtains here. In addition to the evidence that Pittman had access to the contraband and the power to exercise control over it, Pittman was carrying $812, mostly consisting of $20 bills with him at the time of his arrest, for which three different explanations were offered. Further, the results of his polygraph examination were further evidence of his guilt.

3. In his next enumeration, Pittman argues that the trial court erred by failing to charge the equal access rule in that this constituted his sole defense. Again, we find no reversible error for several reasons.

First, we note that the concept of equal access was not entirely omitted from the court’s charge. Secondly, it does not appear that the doctrine of equal access was Pittman’s sole defense. He requested charges, which were given, regarding the fact that neither mere presence at the scene of the crime, nor mere association with persons charged with a crime authorizes a finding of guilt. The jury was charged extensively regarding the presumption of innocence, burden of proof, circumstantial evidence, and the necessary elements of the crime charged.

Finally, we are persuaded by the State’s argument that in this case equal access is not a “sole defense,” in the sense in which Pittman argues. “The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.” (Citations and punctuation omitted.) Lombardo v. State, 187 Ga. App. 440, 442 (5) (370 SE2d 503) (1988).

This court in Jones v. State, 205 Ga. App. 711, 713 (4) (423 SE2d 393) (1992) was presented with a similar situation to the case at bar. In Jones, the defendant argued that the trial court’s failure to charge his sole defense of mere presence was reversible error. In rejecting that argument, this court stated “[I]f an affirmative defense is raised by the evidence the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. . . . Defendant’s contention that he was merely present at the scene is not an affirmative defense; rather the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.” (Citations and punctuation omitted.) Id. at 713; see generally OCGA § 16-3-28. Here, as in Jones, there was other evidence that Pittman committed the crime; the necessity of proof of guilt beyond a reasonable doubt was fully charged to the jury, and the principles of the equal access doctrine were presented sufficiently. Accordingly, we find no error.

4. In his next enumeration, Pittman argues that the trial court erred in its recharges to the jury concerning actual and constructive possession and the offenses of possession of cocaine with intent to distribute and simple possession of cocaine in that the instructions were confusing and misleading. During deliberations, the jury requested additional instructions and the trial court gave a recharge during which he had a slip of the tongue. Despite this, the court’s recharge regarding constructive possession was sufficiently clear and was appropriate. See generally Caldwell v. State, 167 Ga. App. 692, 695 (4) (307 SE2d 511) (1983).

Pittman also complains that in explaining the offenses of possession with intent to distribute and of simple possession, and by repeating that the jury had the option of finding the defendant innocent, the court created the impression that the only choice was to find the defendant guilty. We have reviewed the court’s instructions and find this argument without merit. The jury was charged repeatedly with the law regarding presumption of innocence and the State’s burden of proof and the explanation of the two crimes was proper. See generally' Nobles v. State, 201 Ga. App. 483, 484 (2) (411 SE2d 294) (1991).

5. In his next contention, Pittman claims that his trial counsel, attorney Raley, was ineffective in that he had a conflict of interest and that the trial court erred in not so finding. The conflict to which Pittman refers is that at the time of the trial in June 1991, Raley also represented witness Anthony James. At the time of the trial, James had not been indicted for any crime arising from the March 1, 1991 incident. Nonetheless, he had been previously indicted for trafficking in cocaine for actions which took place on February 23, 1988, although this case had been temporarily dead-docketed. After Pittman’s trial, in October 1991, James was reindicted for the trafficking charge; and, in a second count was charged with possession of cocaine with intent to distribute for his actions on March 1, 1991. James entered a guilty plea on April 17, 1992 to the charge of possession with intent to distribute cocaine, and the State dropped the trafficking count.

At the hearing on the motion for new trial, attorney Raley admitted that he discussed his representation of both men with Pittman, but that Raley did not see a conflict at the time he first met with him. Raley testified that he believed, when first consulted by Pittman, that the drugs had been planted in the car by a police officer. Raley agreed that he would get involved in the case if Pittman waived any conflict.

On March 4, 1991, both Pittman and James signed separate documents wherein they acknowledged Raley’s representation of James in another case and agreed to a waiver of the conflict. On March 14, 1991, Raley had James sign a handwritten statement authorizing him to discuss with prosecutors James’ involvement in the case against Pittman. The document, which was introduced at the motion for new trial hearing, stated that its purpose was to relieve Pittman from any responsibility for the drugs and to clarify that they belonged to James. The document from James stated that he understood that he was not compelled to plead guilty to any involvement or ownership of cocaine, but that he did so with an understanding that it was a virtual certainty that he would be imprisoned.

On May 13, 1991, James executed another document in which he again accepted responsibility for the possession of the cocaine.

In September 1991, after Pittman’s trial, James issued a thorough confession in which he stated that the shoes were his and the cocaine in them was his. Subsequent to that statement, he was indicted.

Attorney Raley testified that until James was called as a witness at Pittman’s trial, it was his understanding that James was going to testify that the drugs were his and exonerate Pittman. At trial, James testified that the shoes were his and that Pittman did not know the shoes were in the car. Nevertheless, James testified that he did not know who put the substance in the shoes and he then invoked the Fifth Amendment when asked whether the substance belonged to him.

We note at the outset that since no objection was raised at trial, it is necessary to show that an actual conflict of interest existed because of Raley’s representation of both men. “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. By actual conflict we mean more than the bare possibility that a conflict might have developed.” (Citations and punctuation omitted.) Kennedy v. State, 177 Ga. App. 543, 544 (1) (340 SE2d 204) (1986); see also Acierno v. State, 176 Ga. App. 600, 601 (3) (337 SE2d 39) (1985).

Assuming arguendo, that an actual conflict existed here, the record contains Pittman’s waiver of any such conflict. The waiver clearly states that Pittman was aware of the possibility of a conflict, and consented to Raley’s representation of both him and James. At the hearing on the motion for new trial, Pittman stated that he had discussed Raley’s representation of him and the potential conflict several times.

In Shirley v. State, 166 Ga. App. 456 (2) (304 SE2d 468) (1983), the court said that where each defendant “confirmed, on the record, that they had discussed the case thoroughly with their counsel, and each stated that there [was] no [conflict] of interest . . . that they were satisfied to proceed with one counsel... if any error occurred it was induced by these defendants’ statements and induced error is impermissible.” See also Collins v. State, 144 Ga. App. 102, 104 (1) (240 SE2d 597) (1977). Because of this waiver, and because no material prejudice has been demonstrated, we find this enumeration without merit. See generally Rautenberg v. State, 178 Ga. App. 165, 169 (8) (342 SE2d 355) (1986).

6. In another enumeration, Pittman claims that the trial court erred in refusing to allow his mother to testify that James had admitted to her on the day of Pittman’s arrest that the substance in the tennis shoe belonged to him and that Pittman had no knowledge of its presence. Although Pittman’s attorney alluded to the expected testimony, the excluded testimony is not a part of the record. Thus, although Pittman objected to the court’s failure to allow her to testify, because there was no offer of proof, we are unable to review this enumeration.

7. Pittman enumerates as error the trial court’s denial of his motion to suppress and motion in limine in that the stop and the search of the Peugeot were without a warrant and without probable cause.

Pittman filed a motion to suppress and the trial court held a hearing regarding such motion. The evidence at the hearing was that in February 1991, Hall received information that Quinn Mason was going to bring cocaine to Macon from California and that Pittman and James were going to sell the cocaine. At approximately 2:40 p.m. on March 1, 1991, Officer Hall received a call from a confidential informer that Anthony James and Andrew Pittman were driving a black Peugeot and were transporting cocaine. The informer said that ten minutes earlier, the Peugeot was on Margaret Street, that Anthony James was driving, that he had cocaine in the car and that he was waiting for someone to come and pick the cocaine up. The informer said that he had seen the cocaine in the vehicle that day.

Officer Hall went to Margaret Street and drove around and did not find the black Peugeot. He was heading back towards town when he saw Pittman driving a black Peugeot. Officer Hall followed the vehicle to a gym parking lot and observed that the vehicle was parked and that Pittman was in the vehicle and Quinn Mason was talking to him. Hall continued driving and then turned around. At this point, he saw the black Peugeot pass him. He followed the car and Officer Wheat stopped the vehicle.

Officer Hall testified that he had known the informer who provided the information for seven months. Hall stated that the informer had given information previously which led to three convictions and had never given incorrect information. Hall explained that he did not get a warrant before going to Margaret Street, in part because of the urgency of the situation.

Prior to March 1 Officer Hall knew that Quinn Mason was involved in the drug trade and was on parole. Officer Hall also knew that James, Quinn’s half-brother, had been arrested for cocaine violations. Hall also knew of Pittman prior to March 1.

“ ‘Whether a search is sought to be justified as incident to [an] arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the [suspect] was currently in unlawful possession of cocaine. Under the standard set forth by the United States Supreme Court in Illinois v. Gates, (462) U. S. (213) (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the “totality of the circumstances,” including the “veracity” and “basis of knowledge” of the informant, there is a “fair probability” that contraband or evidence of a crime will be found in a particular place.’ ” (Citations omitted.) Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990).

Here, the confidential informer had supplied information to the officers on several occasions, three of which had led to arrests. Officer Hall’s observation of Pittman driving the black Peugeot adequately corroborated the tip from the previously reliable confidential informer. See Collins v. State, 161 Ga. App. 546 (287 SE2d 708) (1982). This case is one involving a tip from a known confidential informer, whose reliability was established. This fact, combined with the corroboration of the information — that Pittman was in a Peugeot and that he was seen speaking with Quinn Mason — in addition to the exigencies of the situation — that the drugs were in the automobile and were going to be distributed — provided an adequate basis for the warrantless search. See generally McKinney v. State, 184 Ga. App. 607 (1, 2) (362 SE2d 65) (1987); Pittman v. State, 189 Ga. App. 781 (2) (377 SE2d 695) (1989).

8. Pittman claims that the trial court erred in that its charge to the jury regarding intent was incomplete. Although Pittman concedes that the court gave a general instruction regarding intent, he claims that the court failed to instruct the jury that intent to commit the act prohibited by the statute must be proven beyond a reasonable doubt. We find this enumeration without merit and find that the charges regarding intent, when viewed as a whole, were appropriate.

9. In his next enumeration, Pittman argues that the trial court erred by failing to give instructions to the jury regarding its use and consideration of the results of the lie detector test. Although Pittman did not request such an instruction, he argues that in the absence of such instruction, the jury assumed that the test results meant that Pittman was guilty.

This enumeration is without merit. Although Pittman cites State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977), that case does not support.his proposition. Chambers states that “[w]hen polygraph results are admitted at trial, either party is entitled, upon request, to have the jury charged concerning the meaning of this evidence.” (Emphasis supplied.) Id. at 80. See Harris v. State, 168 Ga. App. 458 (5) (309 SE2d 431) (1983). Here, Pittman submitted no such request and it was not error for the court to fail to give this charge. Smith v. State, 258 Ga. 676 (3) (373 SE2d 200) (1988). Further, our review of the record shows that the jury was charged during the expert’s testimony regarding the polygraph evidence.

10. Next, Pittman claims that the trial court erred in admitting into evidence the written report of the polygraph examiner. We find this enumeration without merit.

Pittman stipulated to the admissibility of the polygraph examinations. That stipulation stated that he agreed to take the polygraph relating to the charge of possession of cocaine with intent to distribute. The agreement then provided that Pittman “agrees and stipulates that the results may be admitted into evidence at any trial. . . whatever the results are.”

At trial, the administrator of the polygraph tests was qualified as an expert and testified. He stated that on March 18, he administered the polygraph, comprised of ten questions, to Pittman three separate times. The next day he retested Pittman, asking him the same set of ten questions, three separate times. Ford explained Pittman’s physiological response to the questions, the method by which Pittman’s responses were measured and his conclusion regarding the truthfulness of Pittman’s responses. Ford’s conclusion was that Pittman’s responses to the critical issue questions had been deceptive.

Introduced as evidence were two graphs of the three tests on which Pittman’s physiological responses were recorded. One graph recorded Pittman’s results of March 18 and the other recorded his March 19 responses. The graphs provided an explanation of Pittman’s responses. Sets of Ford’s notes, which contained the questions asked Pittman, were also introduced as exhibits.

Two reports were admitted into evidence which listed the relevant questions asked and Pittman’s responses. At the bottom of the reports was the conclusion that Pittman had been untruthful. The statement says: “[bjased on the presence of physiological reactions on the polygrams which indicate deception on the relevant issue questions [there were three relevant questions], it is the opinion of the examiner that the examinee was not truthful.” Pursuant to Pittman’s objection the trial court instructed that the word “opinion” be stricken on both reports. Thus, that portion of the statement read: “it is the_of the examiner that the examinee was not truthful.”

At trial, Pittman did not object to the two reports as such being sent out with the jury. He objected only to the portion which gave the examiner’s opinion. He distinguished between the results of the two tests (tests were identical and given on two days) and the opinion of the examiner based on those results. He did not object to the results being shown.

The ground upon which Pittman objected to the opinion, of the examiner being shown was that it was the jury’s province to form an opinion as to the results, not the examiner’s. However, the examiner, who had qualified as an expert, had testified to his opinion repeatedly during direct and cross-examination, and that is not enumerated as error. As stated above, the word “opinion” was redacted from both exhibits, but defendant still objected because he wanted the whole clause redacted.

Decided March 17, 1993 —

Reconsideration denied March 30, 1993

Now on appeal, Pittman urges that the exhibits should hot have been sent out because they constituted “surplusage and improper written testimony,” i.e., repetition of testimony in the jury room. He cites Harris, supra, which held that the documentation of the expert’s opinion, to which the expert had testified, could not be submitted to the jury because it constituted the witness speaking to the jury more than once. This is clearly a different ground than was urged below, one that the trial court had no opportunity to address. Thus it is not properly before us. See Herrin v. State, 230 Ga. 476 (1) (197 SE2d 734) (1973).

Moreover, if it was error not to redact the whole clause, which is what Pittman wanted below, it surely was harmless because he did not object to the test results being sent out in writing, which showed “deception,” and there was no doubt from the testimony what the examiner’s opinion was. The court fully instructed the jury on its duty to determine the credibility of witnesses and that it was not bound by the testimony of an expert, including the expert’s opinion, but rather that it was to be given only such weight as the jury thought proper. It is “ ‘highly probable that the error [if there was such] did not contribute to the judgment. . . .’ [Cits.]” Brewton v. State, 174 Ga. App. 109, 111 (329 SE2d 270) (1985).

11. Pittman claims that the trial court erred in allowing the jury to disperse during the course of their deliberations without giving appropriate instructions not to discuss the case pursuant to OCGA § 15-12-142 (a). Pretermitting the fact that the court had thus instructed the jury twice and the fact that Pittman has demonstrated no harm as a result of this claimed error, we find that Pittman has waived his right to complain of this by failing to raise it below. Because Pittman did not raise this point at the time of the trial, nor in his motion for new trial nor in his amended motion for new trial, he is barred from raising it for the first time here. See Banks v. State, 201 Ga. App. 266, 269 (3) (410 SE2d 818) (1991).

Judgment affirmed.

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

Mathis, Sands, Jordan & Adams, Virgil L. Adams, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Howard Z. Simms, Assistant District Attorneys, for appellee.

       The instant case is distinguishable from cases involving anonymous tipsters. See, e.g., Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); State v. Ball, 207 Ga. App. 729 (429 SE2d 258) (1993); Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); State v. Smalls, 203 Ga. App. 283 (416 SE2d 531) (1992).


text:
    A92A1794.
    ROBERTSON v. U-HAUL COMPANY OF WESTERN GEORGIA et al.
    (430 SE2d 113)
   Pope, Chief Judge.

Plaintiff/appellant Marti P. Robertson appeals the trial court’s grant of summary judgment to defendants/appellees U-Haul Company of Western Georgia (U-Haul) and Discover Card Services, Inc. (Discover).

The record shows that plaintiff loaned her Discover credit card to a friend, Charley Church. According to plaintiff and her friend, the card was to be used to place a deposit on a rental truck to be rented from defendant U-Haul. Church testified in his deposition that he was in the roofing business and that the truck rental was to be paid for by one of his subcontractors, Ron Threadgill, who needed the truck for a roofing job. Because Threadgill did not have a driver’s license, his wife, Minnie Frisch a/k/a Jan Threadgill, was to sign the rental agreement. Church testified he presented plaintiff’s credit card to the U-Haul employee and explained to the employee that he was placing the deposit on the truck but that Frisch was executing the rental agreement. Church signed plaintiff’s name on the credit card receipt and Frisch signed the rental agreement. Church then returned plaintiff’s credit card.

Frisch and her husband did not return the truck within the 24-hour rental period, and additional charges were made to plaintiff’s Discover card, totaling approximately $13,000 on account of the truck rental. The receipts for these charges were marked “signature on file” by the U-Haul employee. Plaintiff discovered these charges when she received her Discover card statement, and contacted Discover about them. Discover initially credited plaintiff’s account, but subsequently reinstated the charges. Plaintiff agreed to pay the $100 deposit which was charged to her account, but refused to pay the remainder of the charges, and Discover turned the account over to a collection agency. U-Haul was paid for the charges by Discover and has never attempted to recover the charges from plaintiff.

Plaintiff subsequently filed suit against both U-Haul and Discover, alleging defendants were guilty of fraudulent conduct, theft by conversion, State RICO violations, unfair business practices, defamation and intentional infliction of emotional distress. U-Haul filed a motion for summary judgment and plaintiff filed a response to U-Haul’s motion as well as her own motion for summary judgment against both defendants. Discover likewise filed a response to plaintiff’s motion for summary judgment and a motion to dismiss for failure to state a claim. On January 6, 1992, a hearing was held on the parties’ motions. Following the hearing, on January 13, 1992, the trial court entered an order dismissing plaintiff’s defamation claims against both defendants based on plaintiff’s announcement at the January 6 hearing that she was withdrawing those claims, denied plaintiff’s motion for summary judgment as to both defendants, and held all other motions under advisement. At the January 6 hearing the trial court granted the parties leave to file supplemental briefs and on March 2, 1992, after all such briefs had been filed, the trial court entered an order granting summary judgment to both defendants. Plaintiff now appeals from that order.

1. Plaintiff’s sole enumeration of error to this court states that “[t]he trial court erred in granting summary judgment in favor of both defendants.” Plaintiff also states in her brief that her appeal is from the order of the trial court granting summary judgment to defendants. However, plaintiff also argues in her brief to this court that the “removal [dismissal] of the defamation claim would be highly prejudicial in the consideration for the Discover card motion for summary judgment.” By this statement, and others in her brief to this court, plaintiff appears also to be challenging the January 13 order of the trial court in which her defamation claims were dismissed. It is axiomatic, however, that enumerations of error cannot be expanded by argument to include matters not originally enumerated by the appellant as error. Loyd v. State, 202 Ga. App. 1, 2 (1) (c) (413 SE2d 222) (1991); Dennis v. Malt, 196 Ga. App. 263, 265 (2) (395 SE2d 894) (1990), and cits. Thus, we are without authority to consider plaintiff’s contentions concerning the dismissal of her defamation claims.

2. Plaintiff also posits that the trial court erred in converting Discover^ motion to dismiss to a summary judgment because the motion to dismiss was not served 30 days prior to the January 6 hearing. Although a transcript of the January 6 hearing is not included in the record to this court, it appears from the record, including an order of the trial court addressing this contention, and the statements of both Discover and plaintiff in their briefs filed in the trial court, that plaintiff was aware that Discover had requested that its motion be converted to a motion for summary judgment in the event matters outside the pleadings were considered, that plaintiff raised no objection at the hearing or in her response to Discover’s supplemental brief filed following the hearing concerning the lack of notice and that in her supplemental brief plaintiff responded to the merits of the motion, arguing matters outside the pleadings, again without objecting to the lack of notice. Under these facts, we find no merit to plaintiff’s contention concerning the sufficiency of the notice she received prior to the hearing on the parties’ motions. Peppers v. Elder, 248 Ga. 136 (1) (281 SE2d 582) (1981).

Decided March 11, 1993 —

Reconsideration denied March 30, 1993

William R. Hurst, for appellant.

■Booth, Wade & Campbell, Douglas N. Campbell, Nancy S. Parker, Parkerson, Shelfer & Connell, George H. Connell, Jr., for appellees.

3. After carefully reviewing the record and arguments of the parties, we conclude that summary judgment was properly granted to defendants in this case. Therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Divisions 2 and 3 and in the judgment.


text:
    A92A1805.
    TUCKER v. THE STATE.
    (430 SE2d 84)
   Andrews, Judge.

Tucker appeals his conviction for the forgery of a check taken in the burglary of Blakeney Livestock Supply on August 4, 1989.

Count 2 charged that on August 4, 1989, Tucker committed the offense of “Forgery-First Degree . . .” when he “did with intent to defraud, knowingly control and possess a certain writing, to wit: a check, in the amount of $200, drawn on First Union Bank, which check as made purported to have been signed by Gregory Blakeney, but the signature . . . was not his said signature nor signed with his authority and said accused uttered and delivered said check to First Union Bank." (Emphasis supplied.)

1. Tucker’s first, second and fifth enumerations allege error in the trial court’s denial of his motion for directed verdict on the following grounds: 1) there was a fatal variance between the allegations in the indictment and the proof at trial; 2) the indictment was insufficiently vague and could not be proven; and 3) the evidence was legally insufficient. They will be considered together.

Viewed in favor of the verdict, the evidence was that a burglary occurred during the evening of August 3 or the morning of August 4, 1989 at the Blakeney Livestock Supply. Several checks on the personal account of Mr. and Mrs. Blakeney were stolen. The checks were drawn on the United Bank of Pike. On the afternoon of August 4, Tucker drove his car through the drive-in window at the First Union Bank and placed United Bank of Pike check # 4578 for $200 in the receptacle. The check was written on the Blakeney account, payable to Gregory Blakeney and purportedly signed by him. When teller Barfield received the check, she turned to teller Colquith and asked if she knew Blakeney. Colquith responded that she did and “no, that’s Michael Tucker.” At that point, Barfield left the drive-in booth and went to copy the check and to inquire of United Bank concerning it. Tucker then drove away. The police were called and the check turned over to the chief along with a description of the car and the suspect. Tucker was later picked up and brought to the bank where he was identified by both tellers as he was driven through the drive-in window.

The question for this court in reviewing the denial of a motion for directed verdict under OCGA § 17-9-1 is whether the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). Here, Tucker testified and admitted that he placed the check in the drive-in receptacle but said he had found it on the ground across from Blakeney Livestock and was merely attempting to return it and did not intend to cash it. The evidence was sufficient. Jackson, supra; Howard v. State, 181 Ga. App. 187 (351 SE2d 550) (1986).

The indictment charged in the language of the statute, OCGA § 16-9-1 (a), named the crime, date and name of the purported signor of the check, as well as correctly identifying the place of the uttering. It was not subject to the vagueness objection. State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977).

As to the alleged fatal variance in the name of the bank on which the check was drawn, “ ‘[u]nder DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), “(n)ot every variance in proof from that alleged in the indictment is fatal.” [Cit.] The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. [Cit.]’ ” Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992). See Bartel v. State, 202 Ga. App. 458 (1) (414 SE2d 689) (1992).

Here, the only error is the bank on which the check was drawn and is not such an error that would hamper Tucker’s defense nor subject him to a second prosecution. Id.

2. The third enumeration is that the court erred in not granting Tucker’s motion for mistrial when the “State repeatedly commented upon the Defendant’s exercise of his right to remain silent.”

After Tucker had testified that he was at his sister’s home in another town on the evening when the burglary occurred, the State recalled the chief of police in rebuttal to testify that Tucker had not told him about this. No objection was made at the time and the defense thoroughly cross-examined the chief. Only after the defense had renewed its motion for directed verdict after both sides rested was a motion for mistrial made. Noting that the motion was not timely, the court nonetheless directed the jury to disregard the chiefs statement concerning Tucker’s silence, an action in which the defense acquiesced. There was no error. “[A] motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). See also Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988).

Even if there had been error, there certainly was no harm since the jury acquitted Tucker of the burglary.

3. Finally, Tucker enumerates the giving of the “dynamite charge” after the jury reported it was deadlocked 11-1 (no further indication of which way the vote stood was given) after two hours and twenty minutes and the denial of his motion for mistrial on that ground.

After the charge was given, the jury returned 20 minutes later, acquitting Tucker of the first count and convicting him of the second. A motion for mistrial based on the length of the jury’s deliberations is within the sound discretion of the trial court and the court is not bound by the jury’s feeling that it is hopelessly deadlocked. Cf. Romine v. State, 256 Ga. 521, 524 (1) (350 SE2d 446) (1986). The charge as given was not error. Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987).

Judgment affirmed.

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

Decided March 9, 1993 —

Reconsideration denied March 30, 1993

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

         Tucker was acquitted of the first count of the indictment, which charged him with the burglary.

       The charge, although referred to as the “Allen charge,” (Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)) is in fact that contained in Vol. II, Suggested Pattern Jury Instructions, p. 198 and repeatedly approved by this court. Christian v. State, 190 Ga. App. 667, 670 (3) (379 SE2d 807) (1989).