text:
    A00A0469.
    DELEO et al. v. MID-TOWNE HOME INFUSION, INC.
    (536 SE2d 569)
   Miller, Judge.

Less than a week before the expiration of the statute of limitation for medical malpractice, Wendy A. Deleo and Dominick R. Deleo brought claims for medical malpractice and loss of consortium, respectively, against Philip S. Brachman, M.D. and Mid-Towne Home Infusion, Inc. (“Mid-Towne”). More than a year and a half later, the Deleos filed a motion to add two other defendants, Joseph Chapman and Anthony Cornelius. Chapman and Cornelius, both registered nurses, were the Mid-Towne employees who had allegedly provided negligent care to Wendy Deleo. The trial court refused to allow Chapman and Cornelius to be added to the suit and denied the Deleos’ motion. Reconsideration of the same motion was subsequently denied. The lawsuit proceeded to trial and resulted in a defense verdict for Dr. Brachman but a judgment against Mid-Towne for $175,000. In this appeal, the Deleos assert that the trial court abused its discretion in refusing to permit them to add these defendants. After reviewing the record, we find otherwise and affirm.

The underlying medical malpractice case arose after Wendy Deleo had hip revision surgery in August 1994 and developed an infection. Dr. Brachman, an infectious disease consultant, recommended an aggressive intravenous antibiotic regimen to treat the infection. To continue the regimen after her release from the hospital, Mid-Towne provided in-home nursing care to deliver medication and to monitor her for adverse reactions. Deleo complained to Cornelius about excessive dizziness, a symptom suggesting possible ototoxicity, indicative of gentamicin poisoning. As a result of the ototoxicity, Wendy Deleo suffered irreversible damage to her inner ear, causing permanent vertigo.

In this appeal, the Deleos contend that the trial court abused its discretion in denying their motion to add parties and in denying their motion for reconsideration. They claim that the parties sought to be added were on notice of the lawsuit within the applicable statute of limitation, would not be prejudiced in their defense on the merits, and knew or should have known that they should have been named as parties. They emphasize that Chapman and Cornelius were both officers of Mid-Towne during the period of Wendy Deleo’s medical treatment and both were deposed pursuant to the Deleos’ lawsuit. They point out that at the time of Mid-Towne’s negligence, Chapman was president of Mid-Towne and Cornelius was secretary. They argue that the trial court erred in denying permission to proceed against Chapman and Cornelius, who had individual liability insurance policies.

OCGA § 9-11-15 (a) permits pleadings to be amended at any time before the entry of a pretrial order. OCGA § 9-11-21 allows parties to be dropped or added by order of the court on motion of any party. But the determination of whether a party should be added to a lawsuit lies within the discretion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse. Here, none has been shown.

Although OCGA § 9-11-15 (c) authorizes the addition of a new party defendant and the relation back of claims as to that new defendant, three conditions must be met: (1) the amendment adding the new defendant arose out of the same facts as the original complaint; (2) the new defendant had sufficient notice of the action; and (3) the new defendant knew or should have known that but for a mistake concerning his identity as a proper party, the action would have been brought against him. All three elements must be satisfied to invoke the relation-back provisions of OCGA § 9-11-15 (c).

In this case, the Deleos cannot satisfy all three conditions. While the amended claims against Chapman and Cornelius doubtlessly arose out of the same facts as the original complaint, the second and third elements are problematic. Pretermitting any analysis of the second element, the Deleos have offered absolutely no evidence to support the third condition. No evidence shows that they were mistaken about the defendants’ identity. On the contrary, the malpractice affidavit that the Deleos filed contemporaneously with the complaint in September 1996 specifically mentions “Mr. Tony Cornelius, R.N.” or “Mr. Cornelius” at least six times and also refers to “Joseph F. Chaspern [actually Chapman]” as a “visiting nurse” from MidTowne. The affidavit of their own expert is replete with references to the alleged negligent acts and omissions of Cornelius and possibly Chapman. Thus, plainly, the Deleos were well aware of the identity of Chapman and Cornelius as of September 1996 when they filed the malpractice action. As a matter of law, there could be no mistake concerning the nurses’ identity since Wendy Deleo was present and fully aware of the nursing services she obtained from Chapman and Cornelius.

Decided June 29, 2000

Schulten, Ward & Turner, Kevin L. Ward, David L. Turner, Lea B. Kirschner, for appellants.

Ballard, Still & Ayres, William L. Ballard, for appellee.

Because no mistake as to identity has been demonstrated and since neither Chapman nor Cornelius was added prior to the expiration of the statute of limitation for malpractice, the trial court did not abuse its discretion in denying the motion to add parties or in denying reconsideration of that motion.

Judgment affirmed.

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

       The Deleos sought reconsideration on the basis of “excusable neglect,” claiming the “possible impairment” of their former counsel.

       In his deposition of November 25, 1997, Cornelius explicitly testified that Mid-Towne was not insured but that he personally had insurance. Cornelius also testified, “I’m still running this company until we close it down.” Thus, the Deleos were apprised of both the precarious future of Mid-Towne and the insurance situation months before the filing of the motion to add parties.

        Benschoter v. Shapiro, 197 Ga. App. 357, 358 (398 SE2d 399) (1990); Cartin v. Boles, 155 Ga. App. 248, 254 (5) (270 SE2d 799) (1980); see OCGA §§ 9-11-15 (a); 9-11-21.

        Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (1) (380 SE2d 78) (1989).

        Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 327-328 (436 SE2d 63) (1993); A. H. Robins Co. v. Sullivan, 136 Ga. App. 533, 534-535 (221 SE2d 697) (1975).

        Harding v. Godwin, 238 Ga. App. 432, 434-435 (518 SE2d 910) (1999).

        Speer, Inc. v. Manis, 164 Ga. App. 460, 461 (297 SE2d 374) (1982); see OCGA § 9-3-71. However, the statute of limitation for Dominick Deleo’s loss of consortium claim had not yet expired when the Deleos attempted to amend their complaint and moved to add the new defendants. See Finch v. Weaver, 213 Ga. App. 514, 516 (2) (445 SE2d 289) (1994); Babb v. Cook, 203 Ga. App. 437, 438 (1) (417 SE2d 63) (1992). But that issue was neither raised nor argued below and therefore was not preserved for appeal. Gusky v. Candler Gen. Hosp., 202 Ga. App. 837 (2) (415 SE2d 541) (1992).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A0579.
    WELCH et al. v. WELCH.
    (536 SE2d 583)
   Barnes, Judge.

Six siblings (“the Welches”) appeal from a jury verdict in favor of their brother, John Henry Welch, on their claims against him for trespass, deprivation of property rights, wounded feelings, costs, and attorney fees. The Welches assert 11 enumerations of error in this appeal. Because we find no merit in these enumerations, we affirm the jury’s verdict in favor of John Welch.

The record shows that the Welches’ dispute with their brother originates from the burial of their mother, Buena Welch. In her last will and testament, Buena Welch appointed her son, John Henry Welch, as the executor of her estate and directed that she be buried in “a decent and Christianlike burial commensurate with [her] standing and condition in life, at the discretion of [her] Executor. . . .” After her death in 1994, John Welch arranged for her burial at the Blue Heights Baptist Church Cemetery in Mountain City, Georgia.

In March 1996, Buena Welch’s husband obtained a permit to disinter his wife’s remains for reburial in land newly dedicated as the Welch family cemetery in Mountain City. One of the plaintiffs in this lawsuit, Dorothy Welch, holds title to the family cemetery, which is adjacent to the “family homeplace.” Buena Welch was the first person buried in the cemetery. Her husband was buried beside her in August 1996.

In 1997, John Welch obtained another permit to disinter his mother’s remains and move her to a perpetual care cemetery. He obtained this permit based on his belief that the new family cemetery was unsuitable as a decent and Christian burial site. His main objection was that his mother had been placed in a watery grave. When funeral home employees began disinterring Buena Welch’s remains, the Welches filed suit and sought both a temporary and permanent injunction, both of which were granted by the trial court. John Welch appealed to the Supreme Court of Georgia, which affirmed the trial court’s grant of the permanent injunction preventing the disinterment. Welch v. Welch, 269 Ga. 742 (505 SE2d 470) (1998).

In its opinion, the Supreme Court of Georgia noted that it was dealing with a “novel case” and held for the first time:

that if an executor has any duty or authority relating to burial or disposition of a body, that duty or authority terminates after initially discharging any such obligation in accordance with the testamentary direction. Thereafter, disinterment and reburial may be sought by the surviving spouse, or by the next of kin in the absence of a surviving spouse, under the provisions of OCGA § 31-10-20 (f) and DHR Rule 290-1-3-.23. If contested, the trial court must then determine whether the application is sought out of necessity or for laudable purposes. This is especially so where the body has been disinterred once previously and removed to a second burial site.

269 Ga. at 743-744. After applying these principles to the case before it, the Supreme Court found that “the trial court correctly considered the position of the majority of the next of kin in entering a permanent injunction preventing disinterment, and that this ruling did not constitute an abuse of the court’s discretion.” Id. at 744.

After the case was returned to the trial court from the Supreme Court, the Welches pursued their claim against John Welch for $500,000 in damages for trespass, deprivation of property rights, and wounded feelings.

1. The Welches contend the trial court erred in denying their motion for new trial because the Supreme Court “established the defendant’s liability in the first appeal.” We disagree. The Supreme Court merely held that the trial court did not abuse its discretion when it issued the permanent injunction preventing disinterment.

2. In two related enumerations of error, the Welches complain that the trial court should not have allowed certain testimony by a probate judge. We cannot consider these enumerations because the Welches failed to object contemporaneously to this testimony and preserve it for our review on appeal. Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996).

3. The Welches further assert that the trial court erred by refusing to give three requested charges to the jury. Our law is well settled that “[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.” (Citation and punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 225 (10) (b) (489 SE2d 329) (1997). Because the charges requested by the Welches fail to meet this standard, the trial court did not err when it refused to give them.

4. We find no merit in the Welches’ claim that the trial court erred when it refused to allow their counsel to cross-examine the defendant about admissions made in a draft of the defendant’s proposed portion of a pre-trial order. In their brief to this Court, the Welches do not identify these alleged admissions, explain how they are inconsistent with other statements made by the defendant, or make any attempt to demonstrate how any alleged error of the trial court warrants reversal. The scope of cross-examination rests within the discretion of the trial court, and the Welches have failed to demonstrate an abuse of discretion warranting reversal. See Moore v. State, 251 Ga. 499, 501 (2) (a) (307 SE2d 476) (1983).

5. In two related enumerations of error, the Welches claim the trial court erred when it denied two motions relating to John Welch’s alleged advice of counsel defense. In one motion, they moved in limine to prevent the introduction of evidence showing that John Welch “was advised by counsel that, as executor of the Estate of Buena Vista Welch, he had the right to disinter her from her burial site beside her husband.” In the other motion, they sought to preclude the defendant from asserting the alleged advice of counsel defense. In the alternative, the Welches, relying on the lawyer-witness rule, asked the trial court to disqualify defendant’s counsel because they intended to call him for cross-examination about the advice he gave to the defendant.

In the hearing on these motions, defense counsel explained that John Welch planned to testify that he obtained advice before obtaining the permit to disinter his mother, but not to specify the exact nature of the advice. The purpose of this testimony was to show that Welch “didn’t just go out willy nilly.” Defense counsel further explained that he might call another attorney, from a different law firm, as a witness. Finally, defense counsel advised the court that he would not be testifying.

The trial court ruled that the defendant could present an advice of counsel defense. It further held that plaintiffs’ counsel could cross-examine a lawyer about his legal advice, provided the defendant offered the lawyer as a witness on his behalf. Finally, the trial court precluded plaintiffs’ counsel from calling any lawyers of the defendant for purposes of cross-examination.

(a) On appeal, the Welches contend the trial court should have excluded the advice of counsel defense and granted their motion in limine because it was asserted for the first time five days before trial. We find no merit in this argument because the defense was included in the consolidated pre-trial order signed by the trial court. See OCGA § 9-11-16 (b).

(b) The Welches further assert that the trial court erred when it failed to disqualify defense counsel so that plaintiffs’ counsel could cross-examine him about the advice he provided to the defendant. Whether an attorney should be disqualified from representing a client rests in the discretion of the trial judge. Clos v. Pugia, 204 Ga. App. 843, 845 (1) (420 SE2d 774) (1992). Based on the peculiar facts and circumstances of this case, we find no abuse of discretion.

6. The record does not support the Welches’ claim that the trial court erred when it “refused to allow plaintiffs to inquire of a panel member what she had been discussing with the defendant’s sister, Daisy Mae Thompson, minutes before the case was called to trial.” Instead, it shows that when their counsel questioned the juror at issue, she explained that she had not spoken to Thompson “in probably a year.”

Decided June 29, 2000

Gary C. Harris, for appellants.

Peevy & Lancaster, Gregory W. Lancaster, for appellee.

7. Finally, we find no merit in appellants’ claim that the trial court erred when it allowed the defendant to cross-examine their counsel about a fee dispute with a former client. Pretermitting whether the trial court erred, we find no harm warranting a new trial because the testimony at issue related to attorney fees. Since the jury found no underlying liability on the part of the defendant, we find no harmful error resulted from the cross-examination of an attorney fees witness.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       Glenda E. Welch, Dorothy Welch, Annie Mae Garrett, Elizabeth Shirley, Sandra Welch Peeke, and Ralph Welch.

       The record citations in the Welches’ brief show that their attorney sought to cross-examine the defendant about the lack of an “advice of counsel” defense in one draft of his proposed portion of the pre-trial order. In the final pre-trial order signed by the trial court, the defendant stated that he also relied upon “advice” when he obtained a permit to move his mother’s remains to Virginia.


author: Miller, Judge.

text:
    A00A0601.
    RESPRES v. THE STATE.
    (536 SE2d 586)
   Miller, Judge.

Emanuel A. Respres was tried before a jury and found guilty of kidnapping with bodily injury, aggravated assault, false imprisonment, and two counts of possession of a knife during the commission of a crime. At sentencing, the trial court merged the aggravated assault, the false imprisonment, and one count of possession of a knife during the commission of a crime into the kidnapping with bodily injury. On appeal, Respres contends the trial court erred in (1) denying his motion to suppress, (2) refusing to permit him to call the victim, Veronica Respres, as a witness, (3) admitting evidence of prior difficulties between himself and the victim, and (4) admitting hearsay statements of the victim. Respres also enumerates the general grounds. We affirm.

Viewed in the light most favorable to the jury’s verdicts, the evidence revealed the following: On March 27, 1998, Jessica Henry, defendant’s 14-year-old stepdaughter, and her mother, Veronica Respres (the victim), were at defendant’s Douglas County home. From her bedroom, Jessica heard her mother screaming for Jessica to come downstairs. Jessica arrived and saw defendant holding her mother with his left hand and a knife with his right hand. The victim was bleeding from wounds to her neck, abdomen, and arms. Defendant fled out the back, leaving the knife on the floor.

Jessica summoned an uncle, who drove the victim to the hospital, and then she telephoned the police. The victim told the emergency room physician that her wounds were caused by her husband who was trying to kill her. The injury to her abdomen was three to six inches deep, and there were indications of significant internal injury, which was considered life-threatening. In her history to the emergency room physician and the operating room surgeon, the victim stated her husband had stabbed her with two long knives.

When defendant was arrested on March 29 in Clayton County, his pants were smeared with blood. In a videotaped interview with police, defendant stated he had been drinking a little too much (about ten beers) and that he did not “know what made [him] do it.” Defendant subsequently recalled that the victim had been “arguing and fussing at him. He was tired of hearing her nagging and he just lost it.” Defendant stabbed her the first time in the living room and then pulled her to the bedroom, where he stabbed her again.

1. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against her will.” Proof that Respres held his wife at knifepoint, stabbed her with a long kitchen knife, and then dragged her from the living room to the bedroom is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that he is guilty, beyond a reasonable doubt, of kidnapping with bodily injury as alleged in the indictment. This same evidence authorizes his conviction for possession of a knife having a blade of greater than three inches during the commission of a crime against another person, as proscribed by OCGA § 16-11-106 (b) (l). Challenges to the sufficiency of the evidence for the remaining offenses are rendered moot by merging those charges at sentencing. The enumeration of the general grounds is without merit.

2. The trial court did not err in permitting the stepdaughter, Jessica Henry, to relate a prior incident of violence she witnessed between defendant and the victim, where he hit the victim while they were arguing and pinned her up against the wall. “[0]ur courts have long held that evidence of prior difficulties between an accused and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim.”

3. Defendant enumerates the admission of hearsay testimony identifying him as the assailant. But “by failing to object to this testimony at trial, [he] has waived his right to assert on appeal that the statements were inadmissible hearsay.” And any error is harmless because this evidence was cumulative of other competent evidence on the same point, namely defendant’s custodial statement.

4. The victim equivocated about whether she would testify, and the State’s attorney could not “get a straight answer out of her. Last week it was I’m invoking my marital privilege and today it’s I don’t know.” Before the presentation of evidence, the trial court informed the victim that both her husband’s lawyer and the State’s attorney wished to ask her some questions about exactly what happened to her on the night she sustained knife wounds and inquired directly: “So, once and for all, Ms. Respres, can you tell me: Are you going to testify in this case or not?” The victim replied, “I’m not going to testify against my husband, you know, as far as testifying against him, no.” From this, the trial court concluded that the victim had invoked her marital privilege not to testify and so was unavailable.

Once the State rested, however, defense counsel informed the court that the victim was under a defense subpoena and that he intended to call her. Counsel expected the victim to deny that she was detained or dragged anywhere and to state that she possessed two knives and had tried to kill herself. The trial court deemed it coercive and in derogation of the privilege to ask the victim/witness herself whether she would reassert her marital privilege and ruled that the defense could not call the victim to the stand.

This was, in our view, procedural error. The fact that the victim asserted her privilege during the State’s case is not conclusive. The privilege not to incriminate one’s spouse at the behest of the State is different from the privilege not to testify for one’s spouse. It follows that the victim should have been summoned to state her intentions before the presiding judge whether she would testify at the behest of her husband or reassert her privilege. But this error does not require reversal and a new trial, because defendant failed to show harm. Nowhere does the record (including the transcript of the hearing on the motion for new trial) indicate that the victim would have testified if called by her defendant husband. In the absence of proof that the victim would have waived her privilege if called, defendant has failed to meet his burden to show harm as well as error.

Decided June 29, 2000.

James M. Allison, Jr., for appellant.

David McDade, District Attorney, Christy E. Draper, Assistant District Attorney, for appellee.

5. Defendant moved to suppress the tangible evidence gathered by police from his apartment without a search warrant.

When the police come upon the scene of [an attempted] homicide they may make a prompt warrantless search of the area to see if there are other victims or if the killer is still on the premises. The need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.

Here, the trial court correctly ruled that investigating officers were entitled to secure and seize bloody knives and other evidence in plain view.

Judgment affirmed.

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

       The trial court directed a verdict of acquittal as to Count 6, alleging cruelty to children in the second degree.

       OCGA § 16-5-40 (a). Furthermore, “if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death.” OCGA § 16-5-40 (b).

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

        Jessup v. State, 224 Ga. App. 176, 177-178 (480 SE2d 232) (1996).

        White v. State, 203 Ga. App. 889, 891 (4) (418 SE2d 149) (1992).

        Wade v. State, 258 Ga. 324, 326 (2) (368 SE2d 482) (1988).

       (Citations omitted.) Bohannon v. State, 208 Ga. App. 576, 579 (2) (b) (431 SE2d 149) (1993). See also Roberts v. State, 123 Ga. 146, 156-160 (5) (51 SE 374) (1905).

        Pollard v. State, 238 Ga. App. 253, 254-255 (2) (518 SE2d 463) (1999).

        Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990).

       “Husband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other.” OCGA § 24-9-23 (a).

       See Price v. State, 175 Ga. App. 780 (1) (334 SE2d 711) (1985) (defendant is entitled to have spouse make election outside the presence of the jury).

       Compare Gay v. State, 220 Ga. App. 78, 79 (467 SE2d 383) (1996).

       (Citations and punctuation omitted.) Delay v. State, 258 Ga. 229, 230 (2) (b) (367 SE2d 806) (1988).

        Casillas v. State, 233 Ga. App. 752, 757 (4) (505 SE2d 251) (1998) (whole court).


text:
    A00A0619.
    WILLIAMS v. THE STATE.
    (536 SE2d 572)
   Miller, Judge.

Elby Williams was convicted of one count of perjury. Following the denial of his motion for new trial, Williams filed this appeal in which he asserts six enumerations of error. Having found no merit to any of the purported errors, we affirm.

Williams, a private investigator, was appointed to assist with the defense of William Marvin Gulley against whom the State planned to seek the death penalty. During a pretrial hearing, Gulley moved to exclude evidence that he had been charged with two other murders in East Point. The State wanted to introduce evidence about. these murders during the sentencing phase of Gulley’s trial. The trial judge in the Gulley case had previously cautioned the State that any evidence that the State had failed to provide to the defense would be excluded. Gulley asserted that the State had denied Williams access to copies of two arrest warrants. Gulley’s counsel advised the court, ‘Well, Your Honor, they have not given us the arrest warrant; isn’t that right Elby?” To which, Williams responded, “That’s right, they refused to give it to us.”

Under oath, Williams declared that two officers from the East Point Police Department had rejected his request to provide certain information. According to Williams, while at the police department, Detectives William Gorman and Richard Joiner had refused to give him copies of the warrants and told him that he could not have copies of them.

PROSECUTOR: Sir, did you ever ask [Detective Gorman] for his file?
WILLIAMS: I asked him for information about the file. I asked him if he could at least give me warrants. You know, he said there were existing warrants and he refused to give me even the warrants.

Again, when counsel inquired: “What did he tell you regarding the warrants?”,

WILLIAMS: He told me there was [sic] existing warrants; that they had not been served. I asked him could I have copies of those warrants. He said no or whatever. He couldn’t get me copies of those warrants, but the other investigator who was in the room pulled it up on the computer to verify that there were warrants.
PROSECUTOR: Let me just ask you something. You said he said no or whatever. Which one did he say; did he say one or both or what?
WILLIAMS: He said I could not get copies of those warrants.
PROSECUTOR: That’s exactly what he said?
WILLIAMS: Yes.
PROSECUTOR: You remember that clearly?
WILLIAMS: Yes.
PROSECUTOR: Did you ask him could you get them at any other time?
WILLIAMS: No, sir. When he told me that, I didn’t see any need in asking him any further questions.

Notwithstanding this testimony, the trial judge denied Gulley’s motion to exclude the East Point evidence that Gulley had committed a double murder of an elderly mother and daughter in East Point, only a week before the murder for which he was under indictment. Gulley’s conviction and death sentence were affirmed after the Supreme Court found sufficient evidence establishing that Gulley’s outrageous acts revealed torture, depravity of mind, and the aggravated battery of the victim, within the meaning of OCGA § 17-10-30 (b) (2), (7).

Based on his testimony in the Gulley case, Williams was indicted for perjury. Subject to redaction by the court, a certified transcript of Williams’ testimony in that trial was admitted into evidence.

Detectives Gorman and Joiner disputed Williams’ rendition of events. Joiner testified that he explicitly told Williams it would be “no problem” getting him a copy of the warrant. Joiner testified that both he and Gorman told Williams that he could have copies of the warrants and offered to accompany Williams to the Information Office where the warrants were kept. According to Joiner, Gorman informed Williams that the “case files and everything” were already in Albany. Joiner noted that Gorman expressed surprise that Williams “drove all the way up to East Point to see something that should already be in the hands of the prosecution and the defense teams.”

Gorman reiterated that he had advised Williams that he could have copies of the arrest warrant and also the police report but that they would have to walk downstairs to another office to get them. According to the detectives, when they went with Williams downstairs and walked past the warrant room, Williams never asked for the copies, telling them instead that he would check to see what information was already down in Albany. Gorman testified, “I did not refuse to give him anything from my file or the warrants or anything.”

Dougherty District Attorney Kenneth B. Hodges III, who prosecuted the Gulley case, testified that the East Point evidence was material and crucial to the sentencing, phase of the State’s case. In his view, it was vital for the jury to be informed that Gulley had attacked and murdered two elderly women (mother and daughter) in East Point before murdering an 81-year-old woman and raping her 60-year-old daughter in Dougherty County a week later.

1. Williams contends that the trial court erred in admitting a certified transcript of his prior testimony. He claims that this evidence was inadmissible hearsay. But the prior in-court sworn testimony was offered to prove that Williams did, in fact, make the earlier statements and not to prove the “truthfulness” of his earlier testimony. This evidence constituted original evidence and was properly admitted.

2. Williams contends that the trial court erred in admitting State’s Exhibit 3B, a trial transcript, because it had been altered from the version certified by the clerk. While testifying, District Attorney Hodges highlighted certain portions of the transcript from the Gulley trial. When Williams objected to the highlighted sections going out with the jury, the court ruled that it would substitute a page for the one that was highlighted. Then when Williams objected to the admission of the transcript because the substitution of a page would vitiate the certification, the court stated that it would have the clerk certify the substituted page. This certification apparently did not occur.

Pretermitting whether any error occurred, Williams failed to prove the requisite harm needed for reversal. Plainly, this case did not turn on this particular exhibit. Rather, the determinative issue was credibility, i.e., whether the jury believed Williams or the two detectives. The credibility of a witness is always a matter for the finder of fact to resolve.

3. Williams asserts that the trial court improperly expressed an opinion as to whether there was sufficient corroborating evidence of the similar transaction evidence.

Prior to trial, the court heard and granted the State’s motion to introduce similar transaction evidence which showed that on another occasion Williams had also testified untruthfully. Consistent with the court’s ruling, the district attorney disclosed to the jury that when Gulley’s defense team was attempting to obtain a continuance, ’’the substance of [Williams’] testimony changed numerous times throughout the course of the hearing.”

During the State’s closing argument, Williams objected to the prosecutor’s mention of that similar transaction evidence. He claimed that this testimony was, in fact, inadmissible since the evidence lacked sufficient corroboration. In overruling the defense objection, the trial court succinctly explained, “The objection is overruled. The other evidence in the case including that which relates to the offense charged, in the Court’s opinion, provides sufficient corroboration of the similar transactions evidence.” The court carefully admonished the jurors that it was “intimating] nothing other than that counsel’s objection is overruled.” Later, in the general charge, the jury was again instructed that the court had not intended to express any opinion by any of its rulings or comments during the trial.

The remarks of a judge assigning a reason for a ruling do not constitute an expression of opinion or a comment on the evidence within the meaning of OCGA § 17-8-57. Moreover, in raising the admissibility issue during the State’s closing, Williams should have anticipated that the court might feel compelled to explain its earlier decision to permit the similar transaction evidence.

4. Williams claims the evidence was not sufficient to sustain the verdict of conviction for peijury. He argues that the State failed to offer evidence to corroborate the offense.

The applicable essential elements of the offense of perjury are: (1) knowingly and wilfully making a false statement, (2) material to an issue in question, (3) while under oath in a judicial proceeding. A conviction for perjury requires either the testimony of two witnesses or that of one witness and corroborating circumstances to support it. Here, the evidence established that while under oath in a judicial proceeding, Williams knowingly made a false statement in an effort to mislead the trial court about an issue material to sentencing. Two witnesses for the State recounted a diametrically different version of events from Williams’ rendition. This evidence was sufficient to satisfy OCGA § 24-4-8 and to sustain Williams’ conviction for perjury.

5. Williams contends that the State failed to prove venue beyond a reasonable doubt because the State did not prove that the incident of purported peijury took place in Dougherty County.

Hodges testified that the Gulley trial had been conducted in precisely the same courtroom as the case against Williams was then being tried. He attested that Williams’ statements were made in that courtroom. The certified copy of the Gulley transcript entered into evidence was captioned “IN THE SUPERIOR COURT FOR THE COUNTY OF DOUGHERTY, STATE OF GEORGIA.” When venue is not in dispute, as here, and no evidence indicates the crime may have occurred in a different county, slight evidence is sufficient to prove venue. This enumeration lacks merit.

Decided June 29, 2000.

Farkas & Ledford, Thomas G. Ledford, John L. Tracy, for appellant.

Kenneth B. Hodges III, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

6. Although Williams claims the trial court erred in denying an appeal bond, that issue is moot since we affirm his conviction.

Judgment affirmed.

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

        Gulley v. State, 271 Ga. 337 (519 SE2d 655) (1999).

       Id. at 339.

       Id. at 339 (1).

       See Fugitt v. State, 256 Ga. 292, 295 (1) (c) (348 SE2d 451) (1986); Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990).

        Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199) (1988).

        Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973) (reversible error consists of error plus harm).

        Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996).

        McGinnis v. State, 258 Ga. 673, 675 (4) (372 SE2d 804) (1988); Aman v. State, 223 Ga. App. 309, 310 (2) (477 SE2d 431) (1996).

       See id.

       OCGA § 16-10-70.

       OCGA § 24-4-8; Dixon v. State, 172 Ga. App. 803, 804 (324 SE2d 780) (1984).

       Id.

        Joiner v. State, 231 Ga. App. 61, 63 (497 SE2d 642) (1998). Accord Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998).

        Hunter v. State, 219 Ga. App. 758, 759 (3) (467 SE2d 2) (1996).


text:
    A00A0661.
    GREEN v. THE STATE.
    (536 SE2d 565)
   Miller, Judge.

The two issues on appeal are (1) whether the testimony of three witnesses that the defendant did not act in self-defense in shooting the victim is sufficient evidence to convict on an aggravated assault charge, and (2) whether the prosecutor’s closing argument that a “not guilty” verdict would send the wrong message to the community is permissible argument. We answer both questions in the affirmative and affirm.

Construed in favor of the verdict, the evidence shows that Tony Green and his brother visited the residence of the brother’s supposed girlfriend and while there engaged in arguments (including the exchange of crude and offensive insults) with the girlfriend, her father, her uncle, and her former boyfriend about the paternity of the girlfriend’s seven-month-old child. Green left the residence and returned to just outside the open door with a gun, which he used to shoot the former boyfriend in the neck. Green and his brother fled and were apprehended at their residence.

At trial, Green admitted to the shooting but testified that the victim threatened to shoot Green and his brother and was about to do so when Green fired. The girlfriend’s father, uncle, and the victim all testified that the victim made no threats and bore no weapon at the time of the shooting. After the jury found Green guilty of aggravated assault and possession of a firearm during the commission of a felony, Green pled guilty to possession of a firearm by a convicted felon.

Decided June 29, 2000.

Ellis R. Garnett, for appellant.

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

1. Green contends the evidence was insufficient because the State’s witnesses were not credible and gave conflicting accounts of the incident. But it is the jury’s function to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. As the final arbiter of whether the accused acted in self-defense, the jury may disbelieve the accused and reject his defense when there is competent evidence that the accused acted without legal justification. Based on the testimony of the three witnesses, a rational trier of fact could have found beyond reasonable doubt that Green did not act in self-defense.

2. Green contends the trial court erred in allowing the prosecutor to say in closing argument that a “not guilty” verdict would send a message to the community that insults alone justified the offended person shooting the insuiter. But closing argument references to what message a “not guilty” verdict would send to the community regarding safety or principles of right and wrong are permissible forms of argument. “A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished.” We discern no error here.

Judgment affirmed.

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

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-131 (b).

        Fortson v. State, 242 Ga. App. 304, 305 (1) (529 SE2d 429) (2000); accord Reeves v. State, 244 Ga. App. 15, 17 (1) (a) (534 SE2d 179) (2000).

        Martin v. State, 149 Ga. App. 705 (1) (256 SE2d 101) (1979); accord Brown v. State, 226 Ga. App. 447-448 (1) (486 SE2d 678) (1997); Moses v. State, 166 Ga. App. 425 (1) (304 SE2d 528) (1983).

        See Martin, supra, 149 Ga. App. at 705 (1); see generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Thomas v. State, 268 Ga. 135, 140 (14) (485 SE2d 783) (1997).

       (Citations omitted.) McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996); accord Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993).


text:
    A00A0863.
    AHEARN v. WESTREC MANAGEMENT, INC.
    (536 SE2d 606)
    Decided June 29, 2000.

      James L. Kraemer, for appellant.
   Miller, Judge.

Westrec Management sued Joe Ahearn for the costs incurred in removing a sinking boat moored at its dock. Ahearn counterclaimed for the loss of the boat. The trial court entered partial summary judgment in favor of Westrec and awarded $3,825. The court also awarded judgment to Westrec on Ahearn’s counterclaim. Ahearn appeals contending that the court erred in granting partial summary judgment to Westrec.

Westrec moved to dismiss the appeal on jurisdictional grounds. In our February 9, 2000 order denying Westrec’s motion, we ordered Ahearn to submit a brief on the merits of the appeal, which he failed to do. Ahearn’s brief submitted prior to the order has no citations to the record and has no argument on the merits beyond two sentences claiming that the question of gross negligence is a jury question under OCGA § 51-1-4. The remainder of Ahearn’s brief focuses on the jurisdictional issue that was subsequently decided by this court in the denial of Westrec’s motion to dismiss.

A complete statement of the applicable ruling from the sole authority cited by Ahearn is: “A jury question is presented only when reasonable [persons] could disagree as to whether the facts alleged constitute gross negligence.” The salient fact here is that Ahearn’s sinking boat was obstructing the marina.

Because of the inadequacies in Ahearn’s brief and his failure to comply with the February 9 order, we conclude the grant of partial summary judgment under OCGA § 9-11-56 (a) was not erroneous for any reason argued in Ahearn’s brief and affirm.

Judgment affirmed.

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

Manchel, Johnson & Wiggins, Norman G. Johnson, Scott M. Kaye, for appellee.

       Westrec moved this court to dismiss the appeal on jurisdictional grounds because Ahearn filed an application for discretionary appeal instead of filing a direct appeal. But summary judgment and partial summary judgment are directly appealable and will be treated as if enumerated under OCGA § 5-6-34 (a) for purposes of OCGA § 5-6-35 (j), allowing this court jurisdiction to decide the case upon application for permission to appeal.

       (Citations omitted.) Harris v. Nat. Evaluation System, 719 FSupp. 1081, 1084 (N.D. Ga. 1989), aff'd, 900 F2d 266 (11th Cir. 1990).

       “Each enumerated error shall be supported in the brief by specific reference to the record or transcript.” Court of Appeals Rule 27 (c) (3) (i).

       See Court of Appeals Rule 7.


author: Blackburn, Presiding Judge.

text:
    A00A0872.
    A00A0873.
    A00A0874.
    A00A0875.
    BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. et al. v. DEAL et al. OXENDINE v. DEAL et al. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. et al. v. TILLER et al. OXENDINE v. TILLER et al.
    (536 SE2d 590)
   Blackburn, Presiding Judge.

In this action concerning distribution of shares in a newly formed for-profit corporation, the Commissioner of Insurance of the State of Georgia, Blue Cross & Blue Shield of Georgia, Inc., and Cerulean Companies, Inc. appeal the trial court’s reversal of an order by the Commissioner finding that Harrell Tiller and a class of other plaintiffs similarly situated were not entitled to a declaratory judgment that they owned shares of stock in Cerulean, the new corporation. As the Superior Court of Richmond County failed to follow the guidance of our Supreme Court in this matter and lacked subject matter jurisdiction, we vacate its order.

This is the second appearance of this case in the appellate courts of Georgia. In its first appearance, our Supreme Court rejected the trial court’s analysis and reversed an almost identical ruling by the same judge in the Superior Court of Richmond County based on the parties’ failure to exhaust administrative remedies. The following facts track those set forth in the prior Supreme Court opinion. See Cerulean Cos. v. Tiller, 271 Ga. 65 (516 SE2d 522) (1999).

In 1995, Blue Cross initiated the process to convert itself from nonprofit to for-profit status pursuant to OCGA § 33-20-34. As part of this statutory conversion, Blue Cross created Cerulean Companies to be its for-profit alter ego and to act as a holding company for its assets. On October 30, 1995, Blue Cross sought approval of its Plan of Conversion with the Commissioner as required by the Georgia Code, and, following extensive review and a hearing, the Commissioner issued an order allowing the conversion on December 27, 1995.

At the moment that the Commissioner approved the Plan of Conversion, “it became a contract between the [C]ommissioner and Blue Cross and was subject to enforcement between those two parties only.” Tiller, supra at 68 (2). As such, any review sought by the eligible members regarding the Plan following this point in time would be limited to the propriety of the stock distribution according to the Commissioner’s understanding of the Plan. No further actions regarding the structure or makeup of the Plan itself would be proper.

As part of the conversion, Blue Cross had to develop a Plan to establish owners or shareholders of its new for-profit incarnation, Cerulean, the terms and implementation of which were approved by the Commissioner for the protection of potential shareholders, following a hearing on these issues. Blue Cross sent a prospectus and election form to its approximately 144,000 “Eligible Subscribers” and offered each of them five shares in Cerulean at no cost. In order to minimize potential tax liability to its subscribers as established by expert testimony at the hearing, Blue Cross gave them the option of accepting or rejecting the shares. To accept share distribution, a subscriber was required to check a box on an election form and return it in a prepaid envelope by August 12, 1996. To reject the offer, subscribers could either return the electión form indicating their rejection or simply do nothing.

In order to facilitate the orderly progression of the election process and to ensure that all eligible subscribers were aware of the opportunity, Blue Cross sent out additional brochures after mailing the election form and made follow-up phone calls to its eligible subscribers. In addition, the Commissioner issued a news release concerning the conversion, asked employers of groups of subscribers to post notices about the conversion, and established a conversion information hotline. Approximately 74,000 of Blue Cross’s eligible subscribers accepted the stock offering, 12,000 expressly declined, and 58,000 failed to respond.

Within 30 days of the approval date of the Plan of Conversion, any eligible subscriber could have appealed the Commissioner’s order of approval and implementation. See OCGA § 33-2-6. In addition, any subscriber who disagreed with the method of stock distribution employed could have requested a hearing before the Commissioner during the distribution. OCGA § 33-2-17. No subscriber, including Tiller, Deal, or Lokey, chose to avail himself of any of these remedies. Instead, they remained silent during the entire distribution process, through its culmination.

Approximately two years later, Cerulean announced details of its impending merger with WellPoint Health Networks, Inc. Pursuant to this merger, the 74,000 holders of Cerulean stock would receive either cash or WellPoint stock worth approximately $4,000. After learning about the merger, Tiller, Deal, Lokey, and other Blue Cross subscribers, all of whom had either specifically rejected the stock offering or failed to act thereon, brought a declaratory judgment action in the Superior Court of Richmond County to establish themselves as holders of Cerulean stock with a right to proceeds from the merger, notwithstanding the fact that OCGA § 33-2-27 requires that all such actions brought against the Commissioner be filed in the Superior Court of Fulton County. On December 17,1998, the trial court, using principles of insurance contract construction to review the Plan of Conversion, ruled that Blue Cross was required to distribute Cerulean stock to each eligible subscriber and was not authorized to give eligible subscribers the option of declining or accepting the stock.

Cerulean then appealed directly to our Supreme Court. In its opinion, the Supreme Court summarily rejected the trial court’s analysis on the merits of the controversy in its entirety, stating that the trial court: improperly construed the Plan of Conversion as it would an insurance contract for numerous reasons; failed to defer to the Commissioner’s interpretation of the Plan of Conversion, which is controlling; failed to appreciate the Commissioner’s autonomy regarding the conversion of corporations; failed to thoroughly consider the tax implications of the stock distribution; and inappropriately entertained arguments regarding the construction of the Plan of Conversion which directly contradicted the construction of the Commissioner. Tiller, supra at 68 (2). These rulings by the Supreme Court will be more fully discussed below. The Supreme Court ultimately reversed the trial court’s ruling providing inter alia:

The issue before this Court is whether Harrell Tiller and the other plaintiffs below were required to exhaust administrative remedies before seeking equitable relief in superior court. Because the plaintiffs are seeking an interpretation of the Plan of Conversion and because the Commissioner of Insurance reviewed the Plan, approved it, and participated in the conversion process after approval, we hold that the parties must follow the administrative review process before seeking judicial review. Therefore, the trial court erred in deciding the merits and we reverse.

Id. at 65.

Thereafter, Tiller chose to pursue one of the administrative remedies discussed by our Supreme Court and filed a petition with the Commissioner on May 17, 1999, requesting a declaratory ruling that he and the other petitioners were rightful holders of Cerulean stock. On June 22, 1999, the Commissioner denied Tiller’s petition, finding that the offering of Cerulean shares was completed in 1996, the plaintiffs should have raised this issue during the offering period, and, because the offering had already been completed, the plaintiffs’ claims were moot. The Commissioner further opined that any forced offering to subscribers who initially rejected the shares would be inequitable two years after completion of the offering. The Plan contract between the Commissioner and Blue Cross had been completely executed at this point in time.

Unhappy with the Commissioner’s decision, Tiller again appealed the Commissioner’s decision to the Superior Court of Richmond County, ignoring the requirement of OCGA § 33-2-27 that such suits be filed in Fulton County. On September 21, 1999, the same trial court which had previously considered Tiller’s case issued an order reversing the decision of the Commissioner. Again, using the same principles of contract construction analysis previously rejected by the Supreme Court in this matter with the same result, the trial court interpreted the Plan of Conversion to require Cerulean to issue stock to all eligible subscribers, whether or not they had indicated that they wanted the stock and irrespective of any adverse tax consequences. It is this decision which is now subject to our review.

1. A review of the record shows that the trial court’s order fails to respect either the deferential standard of review for the Commissioner’s decision or the ruling of our Supreme Court in its prior review of this case.

As an initial matter, the decision by the Commissioner may be reversed or modified, in relevant part, only:

if substantial rights of [Tiller, Deal, Lokey, and the other class members] have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: . . . [c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or . . . [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 50-13-19 (h). “ ‘The clearly erroneous standard of review to be applied by the superior court prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the [administrative agency] are supported by any evidence.’ ” Commr. of Ins. v. Stryker, 218 Ga. App. 716, 717 (1) (463 SE2d 163) (1995).

Furthermore, in applying this standard of review, we must be mindful of our Supreme Court’s admonition regarding the autonomy of the Commissioner in marshaling matters such as this one.

OCGA § 33-20-34 requires the [Commissioner to determine whether the proposed conversion is “in the best interest of the company, its policyholders, and the general public” and authorizes the [C]ommissioner to promulgate any rules and regulations necessary for implementation. Thus, the legislature endowed the [C]ommissioner with broad review powers over any proposed conversion. The [CJommissioner’s wide authority in this area can be respected only if courts decline the invitation to interpret various clauses and terms of an approved conversion plan. Such interpretation is the province of the [C]ommissioner subject to judicial review as provided by statute.

(Emphasis supplied.) Tiller, supra at 67 (1).

Rather than follow this mandate, the trial court chose to interpret the clauses and terms of the Plan of Conversion, trumping the Commissioner’s own interpretation that Blue Cross was required to offer, but not issue, shares to all eligible subscribers. In reaching its decision to overrule the Commissioner’s interpretation of the very plan he approved, the trial court entertained vociferous arguments regarding syntax and word use in the Plan of Conversion and accompanying documents. Our Supreme Court, however, has already opined regarding the impropriety of doing so.

[T]he parties argue extensively about the use and meaning of the words “offer” and “issue” in the Plan and hold diametrically opposed views regarding the manner in which Blue Cross was required to make the stock offer. The [Cjommissioner conducted a staff review of the Plan, held a public hearing at which his staff attorney questioned witnesses, and participated in the conversion process following the approval of the Plan. The length and depth of the agency involvement strongly suggest [ ] that the [C]ommissioner has an understanding of the disputed terms.

Tiller, supra at 67 (1). We agree. Rather than defer to the findings of the Commissioner, unless clearly erroneous or arbitrary, the trial court inappropriately reversed the Commissioner’s decision and substituted its own interpretation of the Plan. For this reason alone, the trial court’s order is erroneous.

In its prior ruling, the Supreme Court indicated that the trial court lacked the authority to interpret the Plan of Conversion as it would an insurance policy because: (1) such authority would mean that any company that makes regulatory filings could not rely upon the finality of agency approval until the six-year statute of limitation for contracts expired; (2) the Plan of Conversion expressly provides that it will not affect the existing policies of eligible subscribers; (3) the Plan of Conversion is not an agreement between Blue Cross and its eligible subscribers and therefore has no similarity to a contract between an insurance company and its insured; and (4) once approved by the Commissioner, the Plan of Conversion became a contract between him and Blue Cross and was subject to enforcement between those two parties only. Tiller, supra at 68 (2). The trial court’s order is also incorrect for any one of these reasons.

The trial court clearly rejected the Commissioner’s and the Supreme Court’s acceptance of the evidence of potential tax implications to involuntary shareholders had Cerulean been required to automatically issue stock to each of its eligible subscribers at the time of the Commissioner’s initial decision on this issue. The Supreme Court further held that if the trial court’s order were enforced,

in any future conversion the [C]ommissioner’s review power will be constricted because the precedent of the present case will require a company to effect a distribution without giving the policyholders the option of not receiving the shares. In that case a company will be unable to give policyholders the option of declining the shares even if the [C]ommissioner determines that because of potential tax consequences an option is in the policyholders’ best interests. Such a usurpation of the [C]ommissioner’s authority is contrary to the statutory scheme.

Tiller, supra at 68 (1).

Therefore, under the facts of this case, we do not find the conclusions of the Commissioner to be clearly erroneous. To the contrary, we find them to be well founded. Tiller and the other members of the class sought a declaratory ruling from the Commissioner regarding the propriety of the stock distribution, which they argued was an ongoing process. The Commissioner found that the stock distribution had been accomplished as of August 12, 1996, thereby mooting the subscribers’ claims. In addition, the Commissioner reiterated that he had interpreted the Plan of Conversion to require that Blue Cross offer, not issue, shares of Cerulean to its eligible subscribers. The evidence of potential tax liability to involuntary shareholders supports the Commissioner’s ruling. While the plaintiffs may perceive no potential tax implications at this time because of the merger, such potential clearly existed at the time of the initial offer.

Finally, relying heavily on the detailed analysis of our Supreme Court, as set forth above, the Commissionér concluded that Tiller and the others could not revisit the distribution process two years after its completion. The Commissioner found that Deal and Lokey had raised the argument that they had not received any notice of the conversion for the first time in their petition for declaratory judgment. Pointing out that they had failed to raise this argument before the Supreme Court, the Commissioner rejected these claims, finding no support for them. These conclusions of the Commissioner are supported by the record, and we cannot say they are clearly erroneous.

If the ruling of the superior court was allowed to stand, the statutory scheme of OCGA § 33-20-34 would be defeated. That result is inapposite to the prior decision of our Supreme Court, the Georgia Code, and the decision of the Commissioner. Applying the previous holding of our Supreme Court in this matter requires the conclusion that the trial court erred in its ruling. The Commissioner appropriately ruled that Tiller, Deal, Lokey, and the other members of their class are not entitled to shares in Cerulean.

2. Blue Cross also contends that the trial court improperly denied its motion to intervene in the proceedings below. We agree.

The underlying declaratory judgment action was brought pursuant to OCGA § 50-13-11 of the Administrative Procedure Act, which provides:

Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency, provided that nothing herein shall limit or impair the right of an agency to seek the opinion of the Attorney General on any question of law connected with the duties of the agency pursuant to Code Section 45-15-3 or any other applicable statutory or constitutional provision. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.

In turn, OCGA § 50-13-14 sets out that, upon timely application in contested cases:

(1) . . . any person shall be permitted to intervene when a statute confers an unconditional right to intervene or when the representation of an applicant’s interest is or may be inadequate; or (2). . . any person may be permitted to intervene when a statute confers a conditional right to intervene or when the applicant’s claim or defense and the main action have a question of law or fact in common.

Under these standards, Blue Cross should have been allowed to intervene in the proceedings below. Tiller and the other class members were attacking the implementation of the Plan of Conversion, which, after approval by the Commissioner, became a binding agreement between the Commissioner and Blue Cross. Certainly, Blue Cross had an overriding interest in this action, and, as such, its defenses against the class members shared questions of law and fact in common with the main proceedings. OCGA § 50-13-14 (2). Moreover, there is some question that the representation of Blue Cross’s interests may have been inadequate in its absence. OCGA § 50-13-14 (1). Accordingly, the trial court erred in preventing Blue Cross’s intervention in the proceedings below.

3. Finally, because the Superior Court of Richmond County lacked jurisdiction over the matter at hand, the trial court’s order is null and void and must be vacated.

OCGA § 33-2-26 provides generally for appeals from actions of the Commissioner.

An appeal from the Commissioner shall be taken only from an order on hearing or with respect to a matter as to which the Commissioner has refused or failed to grant or hold a hearing after demand therefor under Code Section 33-2-17 or as to a matter as to which the Commissioner has refused or failed to make his order on hearing as required by Code Section 33-2-23.

The orders encompassed by this provision include those issued on hearings the Commissioner is required to hold pursuant to Title 33 of the Georgia Code, including hearings to determine the propriety of plans of conversion set forth in OCGA § 33-20-34.

OCGA § 33-2-27 (a), in turn, sets forth the procedure by which a party can obtain judicial review of such an order. It states: “The form of proceeding for judicial review [of actions of the Commissioner] shall be by a petition in the Superior Court of Fulton County, a copy of which shall be served upon the Commissioner immediately.” This provision explicitly vests the subject matter jurisdiction over the review of orders on hearings provided for in Title 33 of the Georgia Code in the Superior Court of Fulton County.

Although this jurisdictional defect was not raised below, subject matter jurisdiction cannot be waived.

In Dix v. Dix, 132 Ga. App. 630 (64 SE 790) (1909) our Supreme Court stated with regard to OCGA § 15-1-2 that it is rudimentary law that parties [cannot], by consent express or implied, give jurisdiction to a court; that as to the subject-matter the court is limited by the powers conferred upon it by law, and [cannot] be given additional power or jurisdiction by consent of the parties or by waiver. . . . Since the adoption of the code ... an inability to confer jurisdiction over subject-matter upon a court, by consent or waiver, has been generally recognized and applied.

Decided June 29, 2000

Hull, Towill, Norman, Barrett & Salley, David E. Hudson, Long, Aldridge & Norman, Bruce P. Brown, Lawrence A. Slovensky, James A. Washburn, Carr, Tabb & Pope, W. Pitts Carr, David H. Pope, for Blue Cross & Blue Shield of Georgia, Inc. et al.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, William C. Calhoun, Sidney R. Barrett, Jr., Assistant Attorneys General, for Oxendine.

Sims, Moss, Kline & Davis, Jerry L. Sims, Brownstein & Nguyen, Jay D. Brownstein, Paine Little, Travers W. Paine III, Kevin S. Little, Bell & James, John C. Bell, Jr., Pamela S. James, James L. Bentley III, for Deal and Tiller et al.

(Punctuation omitted.) Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 484 (1) (451 SE2d 113) (1994).

The Superior Court of Richmond County had no jurisdiction to hear this matter or to enter its order. Therefore, that order is hereby vacated.

Judgment vacated.

Eldridge, J, concurs. Barnes, J., concurs in Division 3 and in the judgment only as to Divisions 1 and 2.

       The claims brought by Charlie Deal and Olean Lokey, in general, are identical to those brought by Tiller. Deal and Lokey, however, contend that they never received any notice of Blue Cross’s conversion, while Tiller makes no similar argument.


text:
    A00A0882.
    DAVIS v. THE STATE.
    (536 SE2d 596)
   Miller, Judge.

Convicted of armed robbery, attempted armed robbery, aggravated battery, aggravated assault, and two counts of possession of a firearm while committing a felony, Gary Quizon Davis appeals. Aside from sufficiency of the evidence, the questions on appeal are (1) whether Davis’s statement as to the location of his gun was admissible when given in response to an inquiry from an officer who was informed that Davis had a gun in the residence and who upon arresting Davis at the residence asked where the gun was, and (2) whether Davis’s prior offense of threatening an individual with a gun to resolve a dispute over a parking space was admissible to help prove that Davis threatened and shot an individual who refused to comply with his robbery demand. Since the evidence is sufficient and because we answer both questions in the affirmative, we affirm.

1. When reviewing a criminal conviction, we view the evidence in the light most favorable to a finding of guilt and do not weigh the evidence nor judge witness credibility. The question is whether under the evidence presented a rational trier of fact could have found guilt beyond a reasonable doubt.

So viewed, the evidence here was that shortly after midnight two men brandishing handguns jumped from a distinctive red and white Cadillac, fired shots at the ground, and demanded that two nearby pedestrians give up their money and jewelry. The first pedestrian complied by throwing his money on the ground while the second refused, saying he had no money. The pedestrians ran away, and the two robbers opened fire, striking the first pedestrian in the leg and the second in the finger, resulting in the loss of a part of that finger.

Within hours police found the Cadillac parked and locked nearby, and they called for a tow truck. Upon inspection, they discovered therein documents with Davis’s name on them (a pawn loan agreement, a pay stub, and a time sheet) as well as a live .25 caliber cartridge. When a relative of the car’s owner later complained to authorities that Davis was staying in the car owner’s apartment and had a gun, police went to the apartment to arrest Davis on a probation warrant. After handcuffing Davis and a roommate and while the other officers were sweeping the apartment, the arresting officer twice asked Davis where the gun was, to which Davis finally responded that it was in the dresser. After retrieving the .25 caliber gun and related ammunition from the dresser and also discovering a holster for a larger gun, the officer asked Davis where the larger gun was, to which Davis responded he had sold it. No other questions were posed.

At trial the second pedestrian positively identified Davis as one of the gunmen. A ballistics expert identified the live .25 cartridge found in the Cadillac as being of the same brand and caliber as the cartridges in the gun found in the dresser. The car’s owner testified that she had loaned Davis the distinctive Cadillac on the evening of the robbery and that he later confessed to her that he had shot one man in the leg and another in the finger “[blecause he was stingy with his money.” Davis testified and admitted to borrowing the car, to making the statements to the car’s owner (although supposedly in jest), to owning the .25 caliber gun found in the dresser of the apartment, and to the possibility that the live cartridge found in the car was his.

Claiming alibi, Davis emphasizes that the State’s witnesses gave conflicting and self-contradictory testimony on his identification. Such conflicts and contradictions are matters of credibility for the jury to resolve; so long as some competent evidence supports the facts necessary for the State’s case, the jury’s verdict stands. The evidence is sufficient under the standard of Jackson v. Virginia to sustain the convictions.

2. Davis contends that the court erred in not suppressing his statements made and the gun found at the time of his arrest. He argues that because he was in custody, the officer could not question him without first informing him of his Miranda rights.

In New York v. Quarles, the United States Supreme Court held that “there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence,” regardless of the officer’s actual motivation for making inquiries. In Quarles, the officers chased down a rape suspect who reportedly was carrying a gun. After finding a shoulder holster on the suspect, the police handcuffed him and asked where the gun was. Nodding in the direction of some empty cartons, the suspect responded, “ ‘the gun is over there,’ ” where the police indeed found the gun. The Supreme Court reversed the exclusion of the gun and his statement, reasoning that for the sake of public safety and their own safety, police in apprehending a suspect who they have reason to believe placed a gun in the building or nearby may ask as to the whereabouts of that gun without first giving a Miranda warning. “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

The Supreme Court of Georgia has held similarly. To the extent that cases pre-dating Quarles limited the exception to only those instances where the sole reason for the inquiry was public or officer safety, they must be deemed to have been overruled in part by Quarles, which held that the availability of the exception does not depend upon the motivation of the individuals involved. The key is whether under the objective facts the officer had a reasonable basis for making the inquiry to protect public and officer safety.

Here the arresting officer had information that (1) Davis was on probation for having carried a concealed weapon, (2) the landlord had reported that Davis had a gun in the apartment and that the tenant, who had a small child in the apartment, was frightened, (3) Davis had been bragging to the tenant about having a gun and about having shot someone, and (4) Davis was a possible suspect in the recent shooting of the pedestrians. The other officers were still sweeping the apartment and had not yet established who else or what else was present that could pose a threat to the officers or the infant. The officer further testified that he asked about the gun in part because of a concern for public safety, which the court found credible. As there was evidence to support the trial court’s findings and ruling, we will not disturb them.

3. Davis complains that the court allowed the State to introduce evidence of a similar transaction. Conceding he was convicted of the prior offense, he instead emphasizes that the prior incident was dissimilar and proved nothing regarding his guilt on the charges being tried.

The State must make three affirmative showings to introduce a similar transaction.

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) [(1991)].

The first and third prongs are at issue here. Claiming the prior transaction showed Davis’s propensity to resort to firearms when angered, the State announced its purpose was to show identity, scheme, motive, bent of mind, and course of conduct.

Decided June 29, 2000

L. Elizabeth Lane, for appellant.

The law on similar transactions has come a long way from the seminal decision in Bacon v. State, which prohibited introducing a prior crime “even though it be a crime of the same sort . . .” as circumstantial evidence of felonious intent. Now, however, it is permissible for the State to introduce a similar crime precisely to show that the accused “has a propensity for initiating and continuing unpro-' voked [violent] encounters. . . .” This falls into the category of showing malice, intent, motive, course of conduct, and bent of mind. Thus, a prior unprovoked use of a gun as a threat may show the accused’s temper and “his propensity to settle disagreements with a gun, and particularly to act violently and impulsively to disappointment, jealousy or misunderstanding and to resort to the threat or use of firearms with little or no provocation.”

Here the prior offense was the unprovoked use of a firearm to threaten a driver who disagreed with Davis’s taking of a parking space. This showed Davis’s propensity to settle disagreements with a gun, to act violently and impulsively to disappointment or misunderstanding, and to resort to the use of a gun with little provocation. Regarding the present charges, this helped prove bent of mind and course of conduct, for the incident at hand involved Davis’s threat and use of a firearm to intimidate and punish a person reluctant to comply with his robbery demand. The court did not abuse its discretion in admitting the prior transaction.

Judgment affirmed.

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

Kelly R. Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellee.

        Scott v. State, 243 Ga. App. 383, 384 (1) (a) (532 SE2d 141) (2000).

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

        Scott, supra at 384 (1) (a).

       Supra.

       See Scott, supra at 385 (1) (c) (aggravated battery by serious disfigurement); Gould v. State, 239 Ga. App. 312, 313 (1) (521 SE2d 365) (1999) (armed robbery); Butura v. State, 239 Ga. App. 132, 133 (2) (519 SE2d 18) (1999) (criminal attempt to commit armed robbery); Anderson v. State, 237 Ga. App. 595, 596 (2) (516 SE2d 315) (1999) (possession of firearm during commission of felony against a person); Lewis v. State, 215 Ga. App. 161, 163 (3) (450 SE2d 448) (1994) (aggravated assault by shooting).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       467 U. S. 649, 655 (104 SC 2626, 81 LE2d 550) (1984).

       Id. at 652.

       Id.

       Id. at 659-660.

       Id. at 657.

       Id.

        Smith v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995).

       See, e.g., State v. Overby, 249 Ga. 341 (290 SE2d 464) (1982), and cases cited therein.

       See 467 U. S. at 655-656.

       See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Harris v. State, 222 Ga. App. 83, 84 (1) (473 SE2d 245) (1996).

       209 Ga. 261 (71 SE2d 615) (1952).

       (Emphasis in original.) Id. at 262; see OCGA § 24-2-2.

        Farley v. State, 265 Ga. 622, 624 (2) (458 SE2d 643) (1995).

       Id.; see Hall v. State, 198 Ga. App. 434 (1) (401 SE2d 623) (1991).

       (Citations omitted.) Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994); accord Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989) (prior threat with gun showed “propensity of defendant to resort to the threat or use of firearms with little or no provocation, and that this conduct by defendant is not inhibited by the presence of witnesses”); see generally Menefee v. State, 270 Ga. 540, 543 (3) (512 SE2d 275) (1999) (prior use of gun showed “bent of mind to commit the present offense” of felony murder and aggravated assault in connection with shooting).

       See Collins v. State, 242 Ga. App. 450, 453 (2) (529 SE2d 412) (2000) (abuse of discretion standard applies).


text:
    A00A0888.
    CHRISTIAN v. THE STATE.
    (536 SE2d 600)
   Blackburn, Presiding Judge.

Following a jury trial, Dax Christian appeals his conviction of driving under the influence to the extent that he was a less safe driver, OCGA § 40-6-391. Christian contends the trial court erred by: (1) failing to grant him a continuance; (2) permitting evidence of similar transactions; and (3) allowing the State’s peremptory strike of a juror to stand. For the reasons set forth below, we affirm.

1. On the day of trial, Christian sought a ten-day continuance because the State had not complied with the misdemeanor discovery statute, OCGA § 17-16-20 et seq. Specifically, Christian complained that the State had failed to provide a videotape and the field sobriety evaluation sheet in response to Christian’s discovery request. The trial court denied the request for a continuance.

All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. OCGA § 17-8-22. Such grant or denial of a continuance will not be disturbed absent a showing of an abuse of discretion.

Chung v. State, 240 Ga. App. 394, 396-397 (3) (523 SE2d 615) (1999). We find no such abuse of discretion here.

On March 5, 1999, Christian served a discovery request pursuant to OCGA § 17-16-20 et seq. The State responded on March 8, 1999, and identified a videotape which was available for counsel’s review. The State also provided a copy of the arresting officers’ report which stated that “Mr. Christian failed some of all of the field evaluations.” However, the State did not provide the actual field sobriety evaluation sheet. Christian’s counsel first saw the video and the field sobriety evaluation sheet on June 3, 1999, the day of trial.

The trial court determined that the video had been made available; that there was no exculpatory information in the omitted field sobriety evaluation; and that there was nothing contained on the evaluation sheet that defense counsel would not have anticipated. The trial court further stated that if new information did come to light, Christian would be given time to consider his position. Christian has not shown that he was harmed by the trial court’s failure to grant a continuance, and we find no abuse of discretion under these circumstances. See Downs v. State, 240 Ga. App. 740, 741 (2) (524 SE2d 786) (1999); Byron v. State, 229 Ga. App. 795, 796 (3) (495 SE2d 123) (1997).

2. Christian enumerates as error the trial court’s admission of similar transactions into evidence, arguing that the State’s notice to present the evidence was untimely and that the prior offense was introduced to raise an improper inference as to his character.

With regard to the timeliness of the notice, Christian’s contention is meritless. Pursuant to Uniform Superior Court Rule 31.1, “ [n] otices of the state’s intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten (10) days before trial.” Here, the State timely notified Christian of its intent to present similar transaction evidence on March 26, 1999, almost ten weeks before trial. Bryant v. State, 226 Ga. App. 135, 138 (3) (486 SE2d 374) (1997).

With regard to the admissibility of the similar transaction, the prior incident was a per se violation of the DUI law which the State sought to admit as evidence of course of conduct or bent of mind.

Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Punctuation omitted.) Sisson v. State, 232 Ga. App. 61, 66 (3) (b) (499 SE2d 422) (1998). The trial court did not err in its determination that the prior DUI was more probative than it was prejudicial.

3. Christian contends that the trial court erred in overruling his objection to the State’s peremptory strike of an African-American juror pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.

(Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

In this case, the State used one of its peremptory strikes against the only African-American member of the jury panel, and Christian raised a Batson objection. The State explained that it struck the juror because the juror had spoken about a friend who was arrested for DUI, and the juror believed that his friend was not impaired and had been treated unfairly.

Decided June 29, 2000.

Albertelli & Israel, James E. Albertelli, for appellant.

Barry E. Morgan, Solicitor, Jessica K. Moss, Lawton W. Scott, Assistant Solicitors, for appellee.

The trial court found this reason to be sufficiently race-neutral. We give great deference to these findings of the trial court. Horne v. State, 237 Ga. App. 844 (517 SE2d 74) (1999). Based on the record, we cannot say that the trial court erred in overruling Christian’s Bat-son objection. Our Supreme Court has previously found that such a strike, based on a prospective juror’s relationship with people who have been in trouble with the law, was race-neutral. Hall v. State, 261 Ga. 778, 779 (2) (415 SE2d 158) (1991).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A1081.
    DAVIS v. THE STATE.
    (536 SE2d 603)
   Blackburn, Presiding Judge.

Following a jury trial, Charles Clinton Davis appeals his convictions for criminal trespass, burglary, and aggravated stalking, contending that: (1) the evidence was insufficient to support the charge of aggravated stalking; (2) the State failed to provide proper notice of its intent to present evidence of prior convictions to receive recidivist sentencing pursuant to OCGA §§ 17-10-2 and 17-10-7; and (3) the trial court erred by requiring him to appear in front of the jury in an orange prison uniform. For the reasons set forth below, we affirm.

1. Although Davis does not contest the sufficiency of the evidence to support his convictions for criminal trespass and burglary, he does take issue with his conviction for aggravated stalking.

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

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

Viewing the evidence in this light, the record shows that Davis criminally trespassed on the property of his ex-wife on April 30, 1998 and May 30, 1998. In June 1998, Davis’ ex-wife took her case to magistrate court, and the magistrate judge issued a bond to keep the peace against Davis. As a special condition, Davis was required to stay completely away from his ex-wife and son.

Thereafter, on September 9, 1998, Davis went to his ex-wife’s home while she was away at work and helped his son do some repair work on his car. Davis left that afternoon but returned in the middle of the night. He knocked on his ex-wife’s door, and, because she thought it was her son, Davis’ ex-wife answered. Davis then pushed his way into the residence, and, when he was asked to leave, he became belligerent. Davis broke a broom, and he absconded with some of his ex-wife’s beauty supplies. Davis was arrested for aggravated stalking later that evening.

OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to [OCGA §] 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

The evidence was sufficient to support Davis’ conviction. See Jackson, supra.

Davis, nevertheless, argues that he should not have been convicted of aggravated stalking because the State failed to prove that he received notice of the special condition of his bond requiring him to stay away from his ex-wife and his son. At trial, however, Davis’ bond, with his name written on it, was introduced into evidence. Furthermore, the judge who issued the bond testified that it was his custom to go over special conditions with the defendant and that the bond was served on Davis. As such, the record does not support Davis’ argument that he never received notice of the bond, and his conviction for aggravated stalking must stand.

Decided June 29, 2000.

Ham, Jenkins & Wangerin, Kevin A. Wangerin, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

2. Davis contends that his case should be remanded for resentencing because the State failed to provide him with sufficient notice that it intended to use his prior convictions to pursue recidivist punishment pursuant to OCGA §§ 17-10-2 and 17-10-7. In this case, Davis received notice of the State’s intention the day before his trial began. “This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) (510 SE2d 87) (1998) (notice given 80 minutes before start of trial sufficient). Therefore, the notice given to Davis was sufficient.

[Davis] argues, however, that the notice did not allow his trial counsel sufficient time to prepare for the presentence hearing. The failure to move for a continuance precludes appellant from asserting that his counsel was not afforded an ample opportunity to investigate the admissibility of . . . prior conviction [s] as evidence in aggravation of the sentence imposed in this case.

(Punctuation omitted.) Jenkins, supra.

3. Finally, Davis contends that the trial court improperly forced him to appear in front of potential jurors during the jury selection process in his prison uniform, arguing that it unduly biased the jury’s opinion of him. Davis, however, made no motions or objections with regard to this matter. Slade v. State, 267 Ga. 868, 869-870 (3) (485 SE2d 726) (1997). Moreover, there is an indication in the record that Davis remained in his prison uniform because he refused to change. Accordingly, Davis has waived his right to raise this complaint on appeal.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A1120.
    SEARS v. THE STATE.
    (536 SE2d 605)
   Blackburn, Presiding Judge.

Wilma Hart Sears appeals her convictions of trafficking in cocaine and possession of more than one ounce of marijuana. Sears contends that the evidence was insufficient to support her convictions because other people had access to her house and shed where the drugs were found.

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

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewing the evidence, it reveals that, after receiving a tip from a concerned citizen, several officers went to Sears’ residence. Sears informed the officers that only she and her nine-year-old son occupied the residence and that only she and her daughter had keys to the residence. The officers informed Sears that they had reason to believe drugs were being stored in her house and shed in the backyard. Athough she appeared to be nervous, Sears agreed to allow the officers to search the house and shed. The officers found over 800 grams of marijuana in a suitcase and a camcorder bag found in the shed. They also found over 800 grams of marijuana and over 2,000 grams of cocaine in a tote bag under Sears’ bed in the house. Sears testified that she had agreed to store some suitcases in her utility shed for her son-in-law, Michael Diggs.

Sears contends that the evidence was insufficient to support her convictions because others had equal access to the house and shed.

The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. (Citations, punctuation and emphasis omitted.) Nelson v. State, 199 Ga. App. 487, 488 (1) (405 SE2d 310) (1991). . . . Whether the evidence presented is sufficient to rebut the evidence of equal access is an issue for the jury. (Cit.) Garvey v. State, 176 Ga. App. 268, 275 (6) (335 SE2d 640) (1985).

Decided June 29, 2000.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

(Punctuation omitted.) Andrews v. State, 219 Ga. App. 808, 809 (1) (466 SE2d 909) (1996).

In the present case, it was undisputed that Sears and her nine-year-old son were the only occupants of the home, raising a rebuttable presumption that the drugs belonged to Sears. Sears’ daughter and son-in-law were the only other people who had access to the house and shed. A jury could have found from the evidence presented that neither Sears’ daughter nor her son-in-law had an opportunity equal to Sears to place the contraband in the area where it was found. Additionally, we note that possession may be joint or exclusive. See Andrews, supra. The evidence is sufficient to authorize a rational trier of fact to find Sears guilty beyond a reasonable doubt of trafficking in cocaine and possession of more than one ounce of marijuana. See Jackson, supra.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.