text:
    A97A0126.
    WILLIAMS v. THE STATE.
    (485 SE2d 837)
   Blackburn, Judge.

Christopher J. Williams appeals his conviction of armed robbery, contending that the court erred in allowing the testimony of a witness and in failing to charge the jury regarding the effect of a confession by a joint conspirator.

The evidence shows that Williams and Matt Griffin drove to a Piggly Wiggly store in the early morning hours of October 28, 1995. Griffin entered the store by himself and robbed a Piggly Wiggly employee at gunpoint. In a statement to police offered at trial, Williams stated that Griffin returned to the car and told Williams to drive. Williams stated that Griffin showed him money and said that he had robbed the Piggly Wiggly with a fake gun. Griffin gave Williams some of the money from the robbery.

At trial, the State also offered the testimony of Heath Register. Register testified that he had a discussion with Williams and Griffin at the Otilia Sweet Potato Festival, in which Williams and Griffin bragged about having robbed the Piggly Wiggly store.

1. Williams contends the trial court erred in allowing the testimony of Register, because the State failed to comply with its discovery obligations under OCGA § 17-16-1 et seq.

In reviewing a trial court’s decision whether to impose sanctions or take other corrective action as a result of the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion. See OCGA § 17-16-6.

At trial, Williams’ attorney stated that he was not served with any discovery with respect to Register, and that he had no idea what Register would testify to. He stated that, “I object on that basis, that I was not properly served under the discovery statutes.” Williams’ attorney did not articulate the grounds for his objection until after Register had testified before the jury. At the start of Register’s testimony, Williams’ attorney asked to approach the bench. Following an unrecorded bench conference, the court stated that it would allow Williams’ attorney to make an objection at a later time as if it were being made at that time. The attorney made his objection at the conclusion of Register’s testimony, outside the presence of the jury.

OCGA § 17-16-6 provides that, if the State fails to comply with its discovery requirements, “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” Williams did not request any of these items of relief, but merely stated that he “objected” on the basis that he was not properly served under the discovery statutes. As Williams did not request any relief, the court did not err in allowing Register to testify.

Furthermore, at the time he made his objection, Williams’ attorney did not present to the trial court evidence of how the State had failed to comply with its discovery obligations, but merely stated that he had not been served with any discovery regarding Register. He did not indicate that he believed the State possessed any documents which should have been produced, nor did he request a continuance of the trial to review the State’s files to see if it possessed any documents which should have been produced. The prosecutor admitted that he had personally spoken with Register the day before trial. Although the State did not provide Williams with a summary of Register’s statement to the prosecutor, it was not obligated to do so under the discovery statute. OCGA § 17-16-1 (3) provides that notes or summaries prepared by counsel do not constitute statements of witnesses, which must be provided to defense counsel under OCGA § 17-16-7. Thus, the State was not obligated to provide Williams with a summary of Register’s statement to the prosecutor.

Decided April 30, 1997.

Before Judge Forehand.

L. Clark Landrum, for appellant.

On appeal, Williams contends that the State in fact had obtained a previous statement from Register. Williams included, as part of the record on appeal, the transcript of a probable cause hearing held several months before trial, in which a police investigator testified that he had taken a statement from a witness regarding Griffin’s statements at the Ocilla Sweet Potato Festival. Although the investigator could not remember the witness’ name, it appears he was referring to Register.

If the police did obtain a written statement from Register and the State failed to produce such statement to Williams, this would have been sufficient to enable the trial court to find bad faith on the part of the State and to exclude Register’s testimony. See OCGA § 17-16-1 (1) (items in possession of State include items in possession of law enforcement agencies). However, although Williams’ attorney was present at the probable cause hearing where the statement was discussed, he did not present this evidence to the trial court. Indeed, Williams’ attorney stated that he had no other response to make on the issue. Therefore, such evidence cannot be considered by this Court in reviewing the trial court’s action. See Ga. Farm Bureau Mut. Ins. Co. v. Shook, 215 Ga. App. 66, 67-68 (449 SE2d 658) (1994) (“this court cannot consider evidence not presented to the trial court”). On the basis of the evidence presented to the trial court, it did not abuse its discretion in allowing Register’s testimony.

2. Williams contends the court erred in failing to charge the jury on OCGA § 24-3-52, which provides that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” However, Williams failed to make a written request for such charge. Indeed, the record does not reveal that Williams even made an oral request for such charge. “[W]here there has been no written request to charge, failure to give the charge is not error.” (Punctuation omitted.) Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991). Accordingly, this enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J, concur.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A0091.
    ANDREWS et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (487 SE2d 3)
   Judge Harold R. Banke.

South Carolina Farm Bureau Mutual Insurance Company (“SCFB”) appeals the judgment awarded to Georgia Farm Bureau Mutual Insurance Company (“GFB”) in its declaratory judgment action.

The record reveals the following facts. While Glenda Andrews, GFB’s insured, was visiting a friend in South Carolina, her friend’s brother, Worley Johnny Owens, took her vehicle without her knowledge or permission. Several hours later, the police contacted her and reported that Owens and her truck had been involved in an accident involving Barbara P. Thomas, SCFB’s insured. Andrews then informed police that her truck had been stolen.

That same day, when Andrews promptly notified GFB about the collision, she also informed GFB that her vehicle had been stolen. Following SCFB’s payment to Thomas for property damage under the collision coverage provision of her policy, SCFB demanded and received reimbursement from GFB, Andrews’ insurer, under its right of subrogation.

After SCFB made payment to Barbara Thomas and after GFB’s reimbursement to SCFB, Thomas filed a personal injury action in South Carolina against Owens and Andrews. SCFB intervened as Thomas’ uninsured/underinsured motorist carrier. Subsequently, GFB notified Andrews and Owens that it would raise a potential defense of non-coverage and later obtained a non-waiver agreement from Andrews.

GFB filed the underlying declaratory judgment action seeking to have the trial court declare it had no liability or duty to defend any party involved in the collision under the. terms of Andrews’ policy. SCFB intervened and argued that GFB had waived its non-coverage defense and that SCFB sustained prejudice due to GFB’s payment of the property claim.

The trial court concluded that because the policy at issue with GFB contained a non-permissive use exclusion, Andrews had no coverage. It further determined that the doctrine of implied waiver and estoppel based on GFB’s conduct could not be used to enlarge the insurance policy coverage. Held:

The sole issue on appeal is whether the trial court erred in finding as a matter of law that GFB’s payment of the property damage portion of the claim did not constitute a waiver of GFB’s asserted non-coverage defense.

It is undisputed that under the express contract terms, GFB had no responsibility for coverage of non-permissive use. Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265, 266 (1) (444 SE2d 378) (1994). SCFB contends that GFB’s act of paying the subrogation claim created a waiver of the non-permissive use exclusion in Andrews’ policy and estopped GFB from asserting that exclusion as a defense to coverage.

The longstanding general rule is that neither waiver nor estoppel can be used to create liability not created by an insurance contract and not assumed by the insurer under the terms of the policy. Washington v. Hartford Accident &c. Co., 161 Ga. App. 431, 432 (2) (288 SE2d 343) (1982). Despite this rule, SCFB asserts that the exception articulated in Prescott’s Altama Datsun v. Monarch Ins. Co., 253 Ga. 317, 318 (319 SE2d 445) (1984) negated the exclusion for non-permissive use. We disagree. Although in Prescott’s Altama Datsun, the Supreme Court of Georgia held that a liability insurer by its conduct might waive its defense of non-coverage, this is not such a situation because GFB did not undertake a defense of its insured without reserving its rights. See id. Compare Barwick v. Gen. American Life Ins. Co., 172 Ga. App. 843 (324 SE2d 758) (1984) (insurer may waive policy condition or limitation). Here, the only action GFB took was to pay SCFB’s subrogation demand. As soon as GFB learned that Andrews and Owens were defendants in a lawsuit, it duly notified both of them that it was reserving its rights under Andrews’ policy. See Cincinnati Ins. Co. v. Mullinax, 215 Ga. App. 331, 333 (2) (450 SE2d 336) (1994) (payment of property damage benefits to its insureds did not waive insurer’s right to rely on policy exclusion). Notwithstanding SCFB’s argument to the contrary, paying a subrogation demand to an insurer and undertaking or assuming the defense of a suit on behalf of an insured are fundamentally distinguishable acts. See Southeastern Color &c. v. Graphic Arts &c. Ins. Co., 164 Ga. App. 70, 72-73 (2) (296 SE2d 378) (1982).

Nor does Sargent v. Allstate Ins. Co., 165 Ga. App. 863 (303 SE2d 43) (1983) demand a different result. Waiver of a policy condition as to residency is not analogous to rewriting a policy to create contradictory terms. Id. at 867 (1). To hold otherwise would result in redrafting Andrews’ policy to include a risk specifically excluded by mutual agreement. See id. Compare Southeastern Fidelity Ins. Co. v. Timmons, 172 Ga. App. 366 (323 SE2d 183) (1984). Plainly, Andrews had no right to expect coverage because the policy’s express language foreclosed coverage.

Inasmuch as the record fails to show that GFB assumed and conducted a defense on Andrews’ behalf without reserving its rights and, in fact, indicates the contrary, SCFB’s waiver and estoppel argument must fail. See Prescott’s Altama Datsun, 253 Ga. at 318; State Farm &c. Ins. Co. v. Wright, 137 Ga. App. 819, 821 (224 SE2d 796) (1976). Accordingly, the trial court did not err in determining that GFB was entitled to prevail as a matter of law.

Decided April 16, 1997

Reconsideration denied May 1, 1997

Before Judge Bryant.

McLeod, Benton, Begnaud & Marshall, Malcolm C. McArthur, Michael C. Pruett, for appellants.

McClure, Ramsay & Dickerson, John A. Dickerson, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Ruffin, Judge.

text:
    A97A0758.
    A97A0759.
    VAUGHN v. THE STATE. VAUGHN v. THE STATE.
    (486 SE2d 607)
   Ruffin, Judge.

A jury found Charles Vaughn and Barbara Vaughn each guilty of one count of battery and two counts of simple battery in violation of OCGA §§ 16-5-23 and 16-5-23.1. In identical enumerations of error, the Vaughns assert the trial court erred in denying their motions for new trial on various grounds. In the interest of judicial economy the two appeals are consolidated for review. For reasons which follow, we affirm.

Construed most favorably to support the verdict, the record shows that the victim, Patricia Youngblood, is a 31-year-old female. The Vaughns owned a professional care solution home and contracted with Youngblood’s parents and Gwinnett Mental Health to provide home care for Youngblood. According to Youngblood, on March 1, 1996, Barbara Vaughn accused her of going into the kitchen without permission and drinking Vaughn’s soda. Youngblood was sitting in her room when Barbara Vaughn entered and began hitting her with a hard cardboard tube on the legs, arm and in the eye. When Youngblood went back downstairs, Charles Vaughn hit her with a cane in the back. The blows were sufficient to cause severe bruising.

On March 4, 1996, Barbara Vaughn called Youngblood’s employers at Creative Enterprises to tell them that Youngblood was suffering from allergies. She also informed them that in reaction to the allergies, Youngblood rubbed her eyes real hard, causing the bruising. Dr. Gerald Gowitt, a forensic pathologist, testified that the injury was inconsistent with rubbing, but was consistent with blunt force.

1. In their first enumeration of error, the Vaughns assert that the trial court erred by allowing Youngblood to testify regarding whether she was incompetent due to mental illness. According to the Vaughns, the trial court should have examined Youngblood instead of relying on questions presented to Youngblood by the attorneys. However, this issue has been decided adversely to the Vaughns in Sprayberry v. State, 174 Ga. App. 574 (1) (330 SE2d 731) (1985).

Pursuant to OCGA § 24-9-7 (a), the trial court has broad discretion to determine the competency of a witness as a preliminary matter to the admissibility of the testimony of that witness, and the trial court’s determination will not be disturbed on appeal absent an abuse of that discretion. Howard v. State, 212 Ga. App. 298, 300 (3) (441 SE2d 759) (1994).

In Sprayberry, we held that “[t]he plain language of [OCGA § 24-9-7] does not require that only the judge make direct inquiry of the potential witness. Counsel is oft permitted to examine a witness as to the issue of competency. . . . The fact that the court allowed the attorneys representing both sides to actually pose the questions did not diminish the function or abdicate responsibility for making the decision [on competency] based on evidence produced before it and its observations.” Sprayberry, supra at 575-576. We further held that “even the complete failure of the court to hold a preliminary proceeding has been held not reversible error, where an examination on the question of competency is in fact made by counsel in the presence of the court and the jury, and the court is satisfied from such examination that a prima facie case of competency is shown.” Id. at 576 (1).

In response to questioning by the State and defense counsel, Youngblood demonstrated her understanding of the difference between truth and falsehood. Youngblood’s responses to the questions posed clearly demonstrated that she understood both the difference between truth and falsehood and the importance of telling the truth, thereby complying with the requirements of OCGA § 24-9-7.

While the Vaughns argue that Youngblood was incompetent to testify because her testimony “was wrought with inconsistencies and false statements!,]” “[a]ny apparently inconsistent testimony presented by [Youngblood] does not render [her] incompetent to testify as a matter of law, but is a matter for consideration by the trial court in making its determination of competency and by the jury in determining the credibility of [Youngblood]. [Cits.]” Thomas v. State, 168 Ga. App. 587, 588-589 (3) (309 SE2d 881) (1983). Accordingly, the trial court did not abuse its discretion in this instance.

2. In their second enumeration of error, the Vaughns assert the trial court erred by allowing Pamela Bagley, a friend of Youngblood, to sit beside her while she testified. The Vaughns contend, without reference to the transcript, that they objected to the trial court allowing Bagley to sit with Youngblood. “Although not required to do so ([tit.]), we have reviewed the likely places in the transcript that such an objection would have been recorded and have found no such objection by [the Vaughns’] counsel.” Chergi v. State, 202 Ga. App. 700 (415 SE2d 317) (1992). Instead, the transcript shows an express waiver of this issue by the Vaughns’ attorney.

In their motion to admit similar transactions, the Vaughns called Youngblood to the stand. The following colloquy took place with the court by the prosecutor and defense counsel. Prosecutor: ‘Your Honor, this is also Pamela Bagley, a friend of Ms. Youngblood. And she works with her and stays at home with her. She’s asking to be allowed in the courtroom while Patricia testifies.” The Court: “Any objection, Mr. Estes?” Estes: “Is she going to testify?” Prosecutor: “No.” Estes: “Then she can stay.” The Court: “I don’t need your response because she’s not going to be a witness. So I’ll let her stay in the courtroom.” Estes: “Okay.” The trial judge allowed Bagley to sit next to Youngblood, but stated, “I won’t let them talk, but I will let her sit there.” The Vaughns’ counsel did not object. The Vaughns’ counsel also did not object to Bagley’s presence during the State’s case-in-chief.

“As our review of the transcript did not show that this express waiver was withdrawn, this waiver of the issue leaves us nothing to review. Further, we cannot consider this argument which is being presented for the first time on appeal. [Cits.]” Chergi v. State, supra at 700.

3. The Vaughns further contend that the trial court erred by denying their motion to admit prior violent acts committed by Young-blood against third persons. It is well established that evidence of violent acts by the victim against third persons is admissible when the defendant claims justification as a defense and provides advance notice of his intent to introduce such evidence. Chandler v. State, 261 Ga. 402, 407 (3) (b), (c) (405 SE2d 669) (1991). The record in the present case reveals that the Vaughns did not assert a defense of justification or self-defense. Hence, the trial court did not err in denying the Vaughns’ motion.

4. In their fourth enumeration of error, the Vaughns assert that the evidence was insufficient to support the verdict. We disagree. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the Vaughns] no longer [enjoy] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Ogletree v. State, 211 Ga. App. 845, 846-847 (1) (440 SE2d 732) (1994); see also Causey v. State, 215 Ga. App. 723, 724 (1) (452 SE2d 564) (1994). The evidence introduced at trial was sufficient to allow a rational trier of fact to find the Vaughns guilty beyond a reasonable doubt of battery and simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ogletree, supra.

5. The trial court did not err in failing to give a charge on the competency of the witness. The record reveals that the Vaughns’ trial counsel failed to file a request to charge on this issue and that, when asked by the court following the charge, he stated that he had no exceptions to the jury charge. In the absence of a written request, no error was committed. Maynard v. State, 171 Ga. App. 605, 606 (2) (320 SE2d 806) (1984). Moreover, because the Vaughns’ attorney stated that he had no exceptions when the court made inquiry, the Vaughns waived their right to raise the issue on appeal. Id.

6. In their final enumeration of error, the Vaughns assert they were denied effective assistance of counsel. Specifically, the Vaughns claim that trial counsel failed to call certain witnesses to testify, failed to introduce Youngblood’s mental health records and other evidence, failed to object to the introduction of pictures showing Young-blood’s injuries, failed to question Youngblood’s competency, and failed to make proper objections to the State’s presentation of its case. Most of these allegations are not supported by specific reference to the trial transcript or the motion for new trial transcript, in violation of Court of Appeals Rule 27 (c) (3) (i). Moreover, the record does not contain a transcript of the Vaughns’ motion for new trial, where the trial court determined that trial counsel was effective.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995).

The Vaughns’ assertions of ineffective assistance all deal with trial strategy decisions made by their trial counsel. It is well established that matters of trial strategy and tactical errors do not constitute ineffective assistance of counsel. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel. [Cit.]” Stewart v. State, 263 Ga. 843, 847 (6) (440 SE2d 452) (1994). “Judicial review of counsel’s performance should be highly deferential with substantial latitude given trial counsel in deciding trial strategy.” Lakes v. State, 266 Ga. 389 (2) (467 SE2d 566) (1996). “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citation and punctuation omitted.) Taylor v. State, 203 Ga. App. 210, 211 (3) (416 SE2d 554) (1992).

Decided April 3, 1997

Reconsideration denied May 1, 1997

Before Judge Fuller.

Patrick D. Deering, Evin L. Somerstein, for appellants.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

Moreover, while the Vaughns raised their claim of ineffectiveness in detail in their motion for new trial, and the trial court’s order recites that the court heard arguments of counsel before ruling on the Vaughns’ motion, we are unable to address this enumeration because no transcript of the hearing on the motion for new trial is included in the record. “Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.” (Citation and punctuation omitted.) Walker v. State, 215 Ga. App. 790, 792 (3) (452 SE2d 580) (1994); Jackson v. State, 205 Ga. App. 827, 829 (3) (424 SE2d 6) (1992).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A97A0896.
    HARDEN v. VERTEX ASSOCIATES, INC.
    (487 SE2d 12)
   Eldridge, Judge.

This action arose from a complaint filed by appellee contractor Vertex Associates, Inc. (“Vertex”), when appellant Scott Harden, D.D.S., contracted with another company to build appellant’s new dental office building. A Cherokee County jury found Harden liable to Vertex for breach of contract, fraud, and in quantum meruit. He appeals the judgment entered on the fraud claim and the jury’s award thereon of general damages, punitive damages, and “stubbornly litigious attorney’s fees.” We affirm.

1. Appellant challenges the sufficiency of the evidence to support Vertex’s claim of fraud, asserting that the trial court should have granted his motion for directed verdict thereon or, subsequently, his motion for j.n.o.v. In addition, appellant contends that, in the alleged absence of evidence supporting the fraud claim, the trial court erred in entering a judgment for punitive damages.

“A directed verdict is proper only where the evidence with all reasonable deductions therefrom demands a particular verdict; and once the jury has rendered a verdict, the evidence is construed in favor of that verdict when we determine whether a judgment n.o.v. should have been granted.” Tyler v. Bennett, 215 Ga. App. 87 (1) (449 SE2d 666) (1994); OCGA § 9-11-50. To that end, “[a] plaintiff who claims fraud must show: (1) a false representation by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from action; (4) justifiable reliance by the plaintiff; and (5) damages.” (Citations and punctuation omitted.) Smith v. McClung, 215 Ga. App. 786, 787 (452 SE2d 229) (1994). As fraud can be, in itself, of a subtle nature, slight evidence may be sufficient to establish its existence. See OCGA § 23-2-57; Marshall v. York, 165 Ga. App. 795 (302 SE2d 711) (1983).

In alleging insufficient evidence to demonstrate fraud, appellant first contends that he made no false representations to Vertex upon which to base a claim of fraud, since at the times he asserted to Vertex and to others that Vertex was “my builder” and “my contractor,” appellant “both desired and expected Vertex to build his project”; appellant alleges that it was only later, after April 14, 1992, that he became dissatisfied and contracted with another builder. Thus, appellant argues, the representations made to Vertex were not “false” when made and, therefore, cannot sustain an action for fraud.

This assertion is patently meritless, as appellant testified at trial that as early as February and March 1992, he was seeking bids from other contractors, had not yet made up his mind which company to use as his builder, and had not informed Vertex that he was seeking other bids; this evidence directly contradicts a letter from appellant dated April 1, 1992, to Citizens Bank stating that “[t]he company I have contracted with to build my building, Vertex, is also the company that built your bank in 1984.” Thus, through appellant’s testimony, alone, sufficient evidence was presented to raise a jury question on the issue of “false representation.”

Next, appellant contends that there was no evidence of reliance by Vertex upon any representation made by appellant so as to sustain an action for fraud. In this regard, appellant contends that Vertex never started construction on the office building and was informed of the “falsity” of the notion that it was to be the builder, before performing any services in reliance thereof. We do not agree. Appellant fails to state why Vertex should not have relied on appellant’s frequent and documented representations that Vertex was appellant’s contractor. Further, the record is replete with evidence of the various actions taken by Vertex in reliance on those representations, i.e., numerous site inspections; daily consultations with appellant regarding plan modifications; extensive revision of architectural plans in order to meet certification requirements; preparation of detailed material lists; development of plans for re-routing sewer lines; and acquisition of a certificate of insurance for the project.

In the case sub judice, Vertex clearly presented sufficient evidence to allow the issue of fraud to go to the jury. Lister v. Scriver, 216 Ga. App. 741, 745-746 (456 SE2d 83) (1995). Accordingly, the trial court did not err in denying appellant’s motion for directed verdict, denying appellant’s subsequent motion for j.n.o.v., and in entering a judgment on the jury’s award of punitive damages.

2. Appellant next challenges the jury’s award of general damages in the amount of $50,000, contending that: (1) the award was the result of a “confusing” jury charge on the damages element of fraud; (2) no evidence was presented to establish $50,000 as an appropriate award of general damages; and (3) the general damages award to Vertex on the fraud claim is excessive because it is greater than the damages award on the breach of contract claim. These contentions are meritless for the following reasons:

(a) Appellant concedes that the trial court’s initial charge on damages followed the “black letter law [from] Hadley v. Baxendale, 9 Exch. R. 341 (1854) as domesticated by Georgia Railroad v. Hayden, 71 Ga. 518 (1883),” and appellant failed to object to either of the recharges on this issue about which he now complains. “In a civil case, an exception or objection to a charge must be made after the jury is charged and before the verdict.” Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 166 (464 SE2d 259) (1995).

(b) Our review of the record shows that sufficient evidence was presented to support the jury’s award of $50,000 in order to compensate Vertex not just for the $27,000 in lost profits on the construction project itself, but also for actual out-of-pocket expenses incurred for services rendered in preparation for the project, as well as the actual benefit to appellant resulting from the services rendered.

(c) Vertex properly elected to have the judgment entered on the fraud claim, which “authorizes a broader range of damages than those generally authorized for breach of contract”; thus, the general damages award under the fraud claim is not “excessive” simply because it does not mirror the amount the jury awarded Vertex under the breach of contract claim. Phillips v. Leisure Auto. Corp., 223 Ga. App. 225, 226 (477 SE2d 380) (1996).

Decided April 18, 1997

Reconsideration denied May 1, 1997

Before Judge Mills.

Robertson & Walker, Charles T. Robertson II, for appellant.

Russell T. Bryant, for appellee.

3. We have reviewed the trial court’s charge to the jury with regard to the awarding of punitive damages in the case sub judice and can find no error. The trial court made it abundantly clear that an award of punitive damages must be accompanied by a finding of fraud, and the jury so found. Further, at appellant’s request, the trial court properly charged the jury on the “clear and convincing” evidence standard with regard to an award of punitive damages. See OCGA § 51-12-5.1. Finally, in an action for breach of contract where there are matters of record relating to fraud for the jury’s consideration, it is not error to charge the jury on the law regarding punitive damages. Williamson v. Palmer, 199 Ga. App. 35, 37 (404 SE2d 131) (1991), citing Cobb & Eldridge, Ga. Law of Damages (3rd ed.), p. 77, § 4-8.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Appellant also asserts that references to Vertex as “my contractor” and “my builder” were promissory in nature as to future acts. However, the record shows that these references to Vertex addressed that party’s current status, which status was the basis for the work performed by Vertex at appellant’s request and on appellant’s behalf.

       General damages are those which the law presumes to flow from a tortious act, inherently, and may be awarded without proof of any specific amount. See Callahan v. Panfel, 195 Ga. App. 891, 893 (395 SE2d 80) (1990). Herein, appellant does not contest the form of the verdict in awarding general damages to appellee corporation Vertex Associates.


author: Pope, Presiding Judge.

text:
    A97A0175.
    A97A0176.
    GADDIS v. SKELTON. LITTLETON v. SKELTON.
    (486 SE2d 630)
   Pope, Presiding Judge.

Plaintiffs Misty Jo Gaddis and Jeff Littleton sued defendant Lois Skelton for injuries they sustained in an automobile accident. A jury found for plaintiffs, but awarded them a relatively small amount of damages. On appeal, they challenge the trial court’s jury instruction regarding the evidentiary effect of a guilty plea. Concluding that the charge was a proper statement of the law, we affirm.

Prior to trial, defendant had pled guilty to a traffic citation for failing to yield the right-of-way, and evidence of this plea was admitted in the jury trial of this civil action. At defendant’s request, the trial court charged the jury: “Under Georgia law, in a civil action such as this, evidence that the defendant pled guilty to a traffic charge in a prior proceeding is admissible in evidence and may be considered by you along with all the other evidence as a circumstance to be weighed by you. . . . Simply because the defendant pled guilty to a traffic charge is not conclusive on the issue of whether or not she in fact violated the traffic laws or was negligent, nor does it preclude her from introducing evidence as to the reasons for entering such a plea.”

We have long held that a guilty plea to a traffic violation is admissible as an admission against interest, but does not conclusively establish negligence; it is “only a circumstance to be considered along with the other evidence in the civil action for damages.” Roesler v. Etheridge, 125 Ga. App. 358, 359 (1) (187 SE2d 572) (1972). Accord, e.g., Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991); Martini v. Nixon, 185 Ga. App. 328 (1) (364 SE2d 49) (1987); Thompson v. Hill, 143 Ga. App. 272, 275 (3) (238 SE2d 271) (1977). Thus, the trial court’s charge that the plea did not conclusively establish negligence was a correct statement of the law, and the court’s addition of the statement that the plea did not conclusively establish that the pleader violated the traffic law did not make it incorrect. The latter statement was simply a logical corollary of the former, since a violation of the traffic laws would have established negligence as a matter of law. See Mathis v. Mangum, 166 Ga. App. 415, 416 (304 SE2d 520) (1983).

In support of their argument that a guilty plea is conclusive on the question of guilt (and therefore negligence), plaintiffs cite Cannon v. Street, 220 Ga. App. 212 (469 SE2d 343) (1996). But plaintiffs read Cannon too broadly. Although we did hold in Cannon that there was no factual question as to negligence where the defendant had entered a guilty plea, the plea in that case was the only evidence presented on the issue; it was neither rebutted nor explained. Taken with the cases cited above, Cannon demonstrates that a guilty plea to a traffic offense creates a rebuttable presumption of negligence in a civil case arising from the same incident. It is conclusive if unrebutted, but the defendant can present evidence that he was not negligent despite the plea, and the jury can choose to agree.

Here, defendant Skelton asserts in her brief that she presented evidence at trial rebutting her guilty plea. We cannot confirm this because we do not have a transcript of the evidence presented at trial. But it is the obligation of plaintiffs, as appellants, to show error in the record; and in the absence of a transcript demonstrating otherwise, we assume the court’s instruction was properly supported by defendant’s rebuttal of her earlier admission. See Acker v. Jenkins, 178 Ga. App. 393 (1) (343 SE2d 160) (1986). The charge was therefore adapted to the evidence as well as a correct statement of the law, and the trial court did not err in giving it.

Decided May 1, 1997

Before Judge Adamson.

Thomas M. Strickland, for appellants.

Bovis, Kyle & Burch, Nicholas P. Garcia, for appellee.

Judgments affirmed.

Johnson and Blackburn, JJ, concur.

       Arguably, any error in the charge on negligence was harmless since the jury had to find defendant negligent to award plaintiffs any amount of damages. Nonetheless, we choose to address plaintiffs’ argument in order to clarify the law regarding the admissibility and effect of evidence that a party in a civil traffic accident case previously pled guilty to a traffic citation involving the same incident.


text:
    A97A0580.
    MORGAN v. THE STATE.
    (486 SE2d 632)
   Pope, Presiding Judge.

Gregory Todd Morgan was convicted by a jury of three counts of child molestation and one count of aggravated child molestation; the court merged the child molestation counts. Morgan appeals, and for the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, the victim, six years old at the time of the molestation, told her aunt that Morgan had touched her in the “wrong places.” The victim also told this aunt that Morgan fondled her breasts and put his penis “on her butt.” Another aunt testified that the victim stated that she had to sleep in the same bed with Morgan one night and that he made her take her clothes off and fondled her chest and vagina. This aunt reported that the victim said that Morgan “rubbed his penis on her leg and on her butt” and made her play with his penis.

The victim told a child abuse investigator from the Department of Family & Children Services that Morgan touched her vaginal area and her buttocks. She further reported that Morgan rubbed his penis against her thigh and took off both his and her clothes. A sexual assault nurse examiner, Helen Frith, testified that she examined the victim, who told her that all of Morgan’s “touches hurt.” Frith testified that the victim said that Morgan threatened her and said he would hurt her with a gun or a knife if she did not rub her leg on his private parts. Both a knife and a gun were recovered from Morgan’s house. Frith’s physical examination revealed bruising and scarring in the victim’s anal area and findings consistent with the abuse the victim described in the vaginal area. Frith testified that the bruising and scarring in the victim’s anal area was probably caused by an object pressing against that area.

Various pornographic magazines and a deck of cards which were found at Morgan’s home were introduced into evidence. There was also testimony regarding several incidents in which Morgan exposed himself to a mail carrier.

1. Citing Prickett v. State, 220 Ga. App. 244 (469 SE2d 371) (1996), Morgan claims that the trial court erred in admitting evidence of similar transactions since the incidents were insufficiently similar. The State filed the requisite notice; the requisite hearing was held; and the court made the appropriate findings and determined that the evidence would be admissible for the limited purpose of showing Morgan’s lustful disposition. The court charged the jury regarding the limited purpose for which the evidence was admissible both before the testimony regarding the similar transactions and in its final charge.

The similar transaction evidence was testimony of Brenda Geiger, who worked as a mail carrier, and Detective Manders of the Walton County Sheriff’s Department. Geiger testified that five years before the charged molestations she observed Morgan standing by his mailbox and opening his bathrobe to reveal himself. Geiger testified that she observed Morgan six other times standing at his door with no clothes on. Detective Manders, who investigated one of the incidents, corroborated Geiger’s testimony.

“The exception to the general rule that evidence of independent transactions is inadmissible has been most liberally extended in the area of sexual offenses. In crimes involving sexual offenses, evidence of similar transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent transaction and the offenses charged.” (Citation and punctuation omitted.) Hathcock v. State, 214 Ga. App. 188, 192 (8) (447 SE2d 104) (1994); see also Helton v. State, 206 Ga. App. 215 (424 SE2d 806) (1992); Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992). In Prickett v. State, 220 Ga. App. at 244, which Morgan cites, this Court determined that, in the absence of limiting instructions, the crude gestures at issue were insufficiently similar to the forcible rapes for which Prickett was on trial to be admissible. In contrast, here the court properly instructed the jury on the limited purpose of the prior incidents and they were sufficiently similar to be admissible to show Morgan’s state of mind and lustful disposition. See King v. State, 209 Ga. App. 529, 530 (2) (b) (433 SE2d 722) (1993).

2. Morgan claims that the court erred in denying his motion for a directed verdict as to aggravated child molestation. The indictment alleged that Morgan committed aggravated sodomy by performing an act of sodomy involving his sex organ and the victim’s anus.

One of the victim’s aunts testified that the victim said that Morgan rubbed his penis on her leg and on her butt. Another aunt testified that the victim stated that Morgan put his penis “on her butt.” The physical examination of the victim revealed bruising and scarring of the victim’s anus. Unlike the situation in Elrod v. State, 208 Ga. App. 787 (2) (432 SE2d 808) (1993), in this case the physical evidence was consistent with an act of sodomy. Moreover, penetration is not an element of sodomy. Smith v. State, 210 Ga. App. 634, 636 (2) (d) (437 SE2d 333) (1993). Accordingly, a rational trier of fact could find from the evidence adduced at trial proof of Morgan’s guilt beyond a reasonable doubt of aggravated child molestation, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the court’s denial of the motion for directed verdict was proper. See McGuire v. State, 209 Ga. App. 813, 814 (1) (a) (434 SE2d 802) (1993); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986); Cooper v. State, 180 Ga. App. 37 (1) (348 SE2d 486) (1986).

3. Citing OCGA § 24-3-16 and Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), Morgan argues that the trial court erred in denying his motion to strike the hearsay testimony of several of the State’s witnesses after the victim stated on direct examination that she did not want to talk about the incident. When the child stated that she did not want to talk about the incident, the State concluded its questioning. Nevertheless, defense counsel cross-examined the victim regarding the incident, and, in fact, she denied that Morgan had touched her chest.

Morgan’s arguments were resolved adversely to him in Byrd v. State, 204 Ga. App. 252 (1) (419 SE2d 111) (1992). See also Bright v. State, 197 Ga. App. 784, 785 (4) (400 SE2d 18) (1990).

4. (a) Morgan claims that the court erred in overruling his objection to the mother’s testimony regarding the victim’s reputation as a student. Assuming without deciding that the testimony was erroneously admitted, any error was harmless since it is highly probable that such error did not contribute to the jury’s verdict. See, e.g., Pardo v. State, 215 Ga. App. 317 (2) (450 SE2d 440) (1994).

(b) Morgan claims the trial court erred in overruling his objection to testimony regarding his visitation rights with the victim. Again, even assuming that Morgan’s argument is valid, any such error was harmless.

(c) Finally, Morgan claims that the court erred in refusing to allow the examining nurse’s worksheet to go out with the jury on the ground that it constituted a “continuing witness.” Again, regardless of the substantive merit of this argument, any alleged error in excluding the evidence would have been harmless. See Buckner v. State, 219 Ga. App. 71, 74 (5) (464 SE2d 11) (1995).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided May 1, 1997.

Before Judge George.

Timothy L. Lam, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A97A0593.
    AGONY v. THE STATE.
    (486 SE2d 625)
   Blackburn, Judge.

Jeffrey Agony a/k/a Jeffrey Briney appeals his convictions of theft by shoplifting and giving a false name. On appeal Agony asserts several enumerations of error.

1. In his first enumeration of error, Agony contends that the trial court erroneously denied his motion for severance of the offenses charged. An abuse of discretion standard applies when reviewing denial of a motion to sever the trial of separate offenses. See Isbell v. State, 179 Ga. App. 363, 366 (346 SE2d 857) (1986).

Agony argues that the separate crimes charged in the accusation did not arise out of the same conduct, did not involve the same victims or witnesses, and the evidence relating to one offense would not be admissible in the trial of the others.

“Offenses may be joined for trial when they are based (1) on the same conduct or (2) on a series of acts connected together or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” (Citations and punctuation omitted.) Carter v. State, 192 Ga. App. 726, 727 (4) (386 SE2d 389) (1989).

In Carter, we determined that the trial court did not err in denying the defendant’s motion to sever the charge of giving a false name from the burglary charges, as the giving of a false name charge arose from the circumstances of his arrest for the burglaries. Id. at 727-728. In the present case, contrary to Agony’s argument, the charge of giving a false name did arise from the circumstances of his arrest for theft by shoplifting. The trial court did not abuse its discretion in denying Agony’s motion to sever.

2. In his second enumeration of error, Agony asserts that the evidence was insufficient to support his conviction of theft by shoplifting.

The standard of review of a claim of insufficiency of the evidence to support a criminal conviction is whether any rational trier of fact could find defendant guilty beyond a reasonable doubt. This Court, in reviewing the case, views the evidence of record in the light most favorable to the finding of guilt to determine if such evidence is sufficient to establish every element of the crime chargeable to defendant. Where the evidence is circumstantial, in whole or in part, it must be sufficient to exclude every reasonable hypothesis save that of the guilt of the defendant. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

OCGA § 16-8-14 (a) (1) provides that “[a] person commits the offense of theft by shoplifting when he . . . , with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof,. . . [c]onceals or takes possession of the goods or merchandise of any store or retail establishment.”

Karen Carr, with Rich’s Cumberland Mall Security, testified that she observed Agony enter the Rich’s store through the mall doors on the second level. Agony got on the elevator, and Carr followed him on the escalator. Carr ran to the Dockers department, which is where the elevator opens, and could not locate Agony. After two minutes she saw Agony come from an employee-only area behind the elevators. He was walking briskly and carrying a white bag which was not a Rich’s bag. Carr testified that she could see that the bag contained several pairs of pants. Agony was not carrying any bag when he walked into the store a few minutes earlier. As Carr followed Agony, he ran out of the store. After a few minutes of searching, Agony was found on the second floor of the parking deck lying down in the back seat of a red Cavalier. Upon recovery of the white bag, Carr discovered four pairs of Dockers pants with Rich’s price tags and UPC, but no receipt. The pants were valued at $152.

Agony relies on our opinion in Calhoun v. State, 213 Ga. App. 375 (444 SE2d 405) (1994); however, the evidence in this case is distinguishable. In Calhoun, we reversed the defendant’s shoplifting conviction based on insufficiency of the evidence. Therein, the State relied upon hearsay evidence which has no probative value to establish the shoplifting charge. Id. at 377. In the present case, although the evidence implicating Agony is circumstantial, it is competent evidence having probative value.

Additionally, an accused’s flight, such as occurred in this case, is circumstantial evidence of consciousness of guilt; the fact that a suspect flees the crime scene points to the question of guilt in a circumstantial manner. Campbell v. State, 215 Ga. App. 14,15 (1) (449 SE2d 366) (1994). “It was for the jury, weighing the evidence and determining witness credibility, to decide whether [Agony] was lawfully arrested. . . . The jury was within its province to resolve [any] conflict of evidence against [Agony].” Reddin v. State, 223 Ga. App. 148, 150 (1) (476 SE2d 882) (1996).

Furthermore, unexplained recent possession of stolen goods supports an inference that the accused committed the theft. See Quinn v. State, 222 Ga. App. 423, 424 (1) (474 SE2d 297) (1996); Bolar v. State, 216 Ga. App. 195, 197 (4) (453 SE2d 790) (1995). Although Agony’s trial counsel explained Agony’s possession of the pants in her opening statement, opening statements are not evidence. Agony’s counsel stated that Agony was at the mall with a friend. They separated to shop and met again at Rich’s. The friend gave Agony a bag containing pants that the friend had purchased. The friend was going to the men’s room, and Agony was supposed to meet him in the car. Agony’s trial counsel further explained that the friend is in trouble with the police, and they were unable to locate him for trial. Opening statements are not evidence for the jury’s consideration, and no evidence was, in fact, presented by the defendant explaining his possession of the pants. A review of the transcript reveals that the evidence is sufficient to meet the required standard. Jackson v. Virginia, supra.

3. Agony contends that the trial court erred in denying his motion for mistrial after the State introduced evidence of bad character when he did not first place his character into evidence. An abuse of discretion standard applies when reviewing a trial court’s ruling on general evidentiary matters.

With respect to the first claim of error raised in this enumeration, Agony contends that a witness’ reference to a revocation hearing improperly placed his character into evidence. However, the witness’ answer was responsive to a question asked by Agony’s counsel, and there can be no benefit to defendant from invited error. “Counsel cannot complain of a responsive answer to [her] question.” Brown v. State, 180 Ga. App. 611, 612 (1) (349 SE2d 830) (1986).

Agony’s remaining claims of error are limited to evidence which indicated that Agony had been previously incarcerated under another name. “[T]here are numerous instances where the [S]tate may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. The fact that such evidence may reflect adversely on the defendant does not necessarily place his character in issue within the meaning of OCGA § 24-9-20 (b).” (Citations and punctuation omitted.) Waugh v. State, 218 Ga. App. 301, 304 (5) (460 SE2d 871) (1995). The evidence introduced concerning Agony’s prior incarceration under another name was relevant to the present charge of giving a false name and was not objectionable based upon OCGA § 24-9-20 (b).

4. Agony contends that the State failed to prove that he gave a false name to a law enforcement officer. We apply the same standard of review for this enumeration as was applied in Division 1 of this opinion.

OCGA § 16-10-25 provides that “[a] person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.” There must be some evidence that the name given in the subject incident was false. Generally this is established by some proof of the defendant’s real name. See Jivens v. State, 215 Ga. App. 306, 307 (5) (450 SE2d 328) (1994) (conviction upheld where defendant’s counsel called defendant by a name different from that given to police combined with other evidence referring to defendant by same name that counsel used was sufficient to support conviction) and Stanley v. State, 213 Ga. App. 95, 97 (443 SE2d 633) (1994) (conviction upheld where defendant’s identification did not match name given to police).

In the present case, even assuming all the evidence presented was properly admitted and viewing the evidence in the light most favorable to support the verdict, the evidence does not establish the name given in this incident was false as opposed to the names in the prior incidents being false. With regard to the present shoplifting charge, the defendant told the arresting officer that his name was Jeffrey Agony. The evidence showed that in 1991, the defendant was booked, photographed, and fingerprinted under the name Jeffrey Johnston. Hearsay evidence was allowed that showed that the Federal Bureau of Investigation telephonically reported that the defendant’s fingerprints matched a file they had set up for one Jeffrey Briney. Additionally, when presented with a warrant for giving false statements pursuant to OCGA § 16-10-20, the defendant responded, “Good job. You got me.” However, Agony’s statement falls short of an admission of guilt of a violation of OCGA § 16-10-25.

This evidence simply establishes that on three different occasions the defendant has given different names to a law enforcement officer. It does not support even an inference that the defendant gave a false name to a law enforcement officer on this occasion rather than on prior occasions.

On cross-examination, the State’s crime scene technician, James Turner, testified concerning the information from the FBI relative to the defendant’s identification as follows: “Q. Isn’t it true that even if indeed [the FBI] did it accurately that it would simply be a name given to the FBI, not necessarily his real name; correct? A. Correct. Q. And that Jeffrey Agony could be his real name? Correct? A. That’s correct.”

Under the present facts, it is just as likely that the defendant’s name is Jeffrey Agony as it is that his name is Jeffrey Johnston. The State made no attempt to introduce the FBI report it had into evidence. No other evidence of identification, such as a driver’s license, was presented. See Stanley, supra. Furthermore, no testimony of anyone familiar with the defendant’s name was presented. As the State failed to present sufficient evidence to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt of giving the false name of Jeffrey Agony, the defendant’s conviction for giving a false name must be reversed. See Jackson v. Virginia, supra.

Decided May 1, 1997.

Before Judge Flournoy.

Perrotta & Associates, Gerard P. Verzaal, Brian R. Cahn, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

5. Agony contends the trial court erred in allowing the introduction of hearsay testimony regarding the FBI’s match of his fingerprints to the name Jeffrey Briney. The trial court allowed Officer Turner and Deputy Hartón to testify that someone from the FBI called and reported that the fingerprints received matched those on file under the name Jeffrey Briney. This evidence is clearly hearsay. See OCGA § 24-3-1 (a). Furthermore, the State failed to show that the hearsay testimony was “necessary” within the meaning of OCGA § 24-3-1 (b). Its admission was harmful with respect to the false name conviction which we have reversed in Division 4.

6. Agony’s remaining enumerations deal with assertions of discovery abuses relating to the giving of a false name charge which we have reversed and which are therefore moot.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Johnson, J., concur.


text:
    A97A0912.
    FOSTER v. THE STATE.
    (486 SE2d 635)
   Blackburn, Judge.

Willie James Foster appeals his conviction on four counts of violating the Georgia Controlled Substances Act by selling cocaine or counterfeit cocaine to undercover police officers. He contends the court erred in allowing evidence of a prior conviction and in allowing introduction of state crime lab reports.

1. Foster contends the court erred in allowing the admission of state crime lab reports identifying the substances sold by him as cocaine, even though his attorney affirmatively stated that she had no objection to such introduction at trial. This enumeration is without merit.

“In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver.” (Citations, punctuation and emphasis omitted.) Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). “[I]f no objection is made in the trial court, ... no reversible error is committed by the trial court in allowing the evidence to be submitted.” (Citations and punctuation omitted.) Id. at 196 (3).

Here, defendant not only failed to object, through his attorney, he affirmatively represented that he had no objection. The trial court did not err in admitting the subject reports under the above facts.

2. Foster contends that the State erred in allowing introduction of evidence of a prior conviction as there was insufficient evidence to show that he was the party who committed the prior offense, and the court failed to hold a similar transaction hearing prior to the introduction of the prior offense evidence.

Foster’s first contention is without merit as Foster pled guilty to such offense and admitted at trial that he committed the offense.

As to Foster’s second contention, the record reflects that, prior to trial, the State notified Foster that it intended to present evidence of the prior offense. At trial, the undercover officer, Michael Shedd, testified that Foster had sold him a quantity of cocaine in April 1989. The State introduced a copy of Foster’s guilty plea to such offense. Foster did not raise any contemporaneous objection to Shedd’s testimony or to the introduction of the guilty plea.

After Shedd’s testimony, and outside the presence of the jury, the trial judge sua sponte stated that he should have held a similar transaction hearing prior to such testimony. The judge announced that he would hold the hearing at that time. Foster’s counsel did not object to the timing of the hearing, but merely argued that the prior offense was not sufficiently similar to the offenses for which Foster was being tried. The court held that the similar transaction evidence was admissible.

We must first determine whether Foster’s failure to timely and properly object to the similar offense evidence waives any objection thereto. It does not under the facts of this case.

Uniform Superior Court Rule 31.3 (B) requires that a similar transaction hearing be held before introduction of evidence regarding a prior offense. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We have held that “the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver” of the defendant’s right to raise such issue on appeal. Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d 153) (1993). Accordingly, we find that the court erred in not holding a hearing prior to introduction of the evidence.

Decided May 1, 1997.

Before Judge Craig.

Martin & Martin, Karen K. Martin, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

We must next address whether the trial court’s failure to conduct a similar transaction hearing before introduction of the subject evidence requires reversal of the case. It does not under the facts of this case.

We have held that “failure to hold the hearing, even without overwhelming evidence of guilt, does not necessarily require a new trial. Stewart v. State, 263 Ga. 843, 845 (440 SE2d 452) (1994). Instead, the case may be remanded to the trial court to conduct a post-trial hearing on the admissibility of the evidence.” Williams v. State, 218 Ga. App. 785, 787 (2) (463 SE2d 372) (1995).

Here, it is not necessary to remand the case for such hearing, as the court has already held such a hearing, and any error in failing to hold the hearing prior to the introduction of the subject evidence is harmless under the facts of this case. The only objection asserted by Foster at such hearing was that the prior offense was not sufficiently similar to the offenses for which Foster was being tried. This objection is without merit.

In the 1989 offense, Foster did not personally sell the cocaine to the undercover agent, but utilized an intermediary, Bobby Joe Walker. The agent told Walker that he wished to purchase cocaine. Walker then walked over to Foster, who handed him two plastic bags of cocaine. Walker gave the bags to the agent and collected the money. Walker then handed the money to Foster, who placed it in his shoe.

Here, the evidence with respect to one count showed that Foster also utilized an intermediary to sell cocaine to an undercover agent. The agent told Foster that he wanted to purchase cocaine. Foster then went into his apartment, came back out, and handed a plastic bag of cocaine to another individual. That individual gave the cocaine to the undercover agent and collected his money. He then gave the money to Foster, who put it in his pocket. The trial court did not err in finding that the prior offense was sufficiently similar to be admissible.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A97A0376.
    WOELPER et al. v. PIEDMONT COTTON MILLS, INC.
    (487 SE2d 5)
   Johnson, Judge.

George and Barbara Woelper filed a petition pursuant to the Quiet Title Act, OCGA § 23-3-60 et seq., seeking to establish an easement by implication to an underground system of water pipes which runs, in part, under land owned by Piedmont Cotton Mills, Inc. A special master, whose order was adopted in pertinent part by the superior court, concluded that the Woelpers were not entitled to the relief sought because they had not complied with OCGA § 23-3-62; specifically, their petition did not include a required description of the land. The Supreme Court of Georgia affirmed the denial of relief in Woelper v. Piedmont Cotton Mills, 266 Ga. 472 (467 SE2d 517) (1996).

The Woelpers filed another action seeking declaratory and injunctive relief, this time including descriptions of the properties at issue. The trial court granted Piedmont Cotton Mills’ motion for summary judgment, stating it had previously been determined that the Woelpers were “not entitled to the requested easement,” implying that the present case is barred by res judicata. The Woelpers appeal from that ruling.

1. The Woelpers assert the trial court erred in holding that no easement exists, when the special master in the earlier action found that an easement did exist. As presented, this enumeration of error misses the mark. The real issue in this appeal is whether the trial court, or the Supreme Court of Georgia, in the first case actually reached the merits of the petition, that is, made a decision regarding the existence or non-existence of the easement.

The special master’s report observed that, were it not necessary to deny relief because the petition was not in proper form, the Woelpers “would be entitled to relief as requested in their Petition, as an easement exists for the underground water pipes.” This observation was only dicta, however. We disagree with the position taken by the Woelpers that this comment is conclusive as to the existence of the easement. The Supreme Court’s opinion reviewed the trial court’s denial of the Woelpers’ motion to extend discovery, the trial court’s deletion of a portion of the special master’s findings, and the denial of a motion for voluntary dismissal. In affirming the trial court’s denial of the petition for relief on procedural grounds, the Supreme Court did not reach the ultimate issue in the case. In the present case, the trial court’s order appears to take the position that there was previously a finding that no easement exists, a conclusion reached by erroneously equating the language of the Supreme Court, that the Woelpers were “not entitled to the requested easement” in the previous action, with a finding that there is no easement.

Decided April 17, 1997

Reconsideration denied May 2, 1997

Before Judge Lane.

John B. Lyle, for appellants.

Barron & Barron, George L. Barron, Jr., for appellee.

The Woelpers’ petition for relief was denied in the earlier action on technical grounds. No court of competent jurisdiction has reached the merits of this case. “Where the merits were not and could not have been in question, a former recovery on purely technical grounds shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.” OCGA § 9-12-42. See Tootle v. Player, 225 Ga. 431, 432 (2) (169 SE2d 340) (1969); O’Kelley v. Alexander, 225 Ga. 32 (165 SE2d 648) (1969); cf. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995) (dismissal of a complaint for failure to comply with the affidavit requirement of OCGA § 9-11-9.1 constitutes an adjudication on the merits). Because the Woelpers have never had a full and fair opportunity to litigate their claim, the doctrine of res judicata does not apply. See V. I. P. Homes v. Weader, 216 Ga. App. 412 (1) (454 SE2d 548) (1995). The summary judgment entered in favor of Piedmont Cotton Mills in this case was error and is reversed.

2. In their second enumeration of error, the Woelpers appear to complain that, in its present posture, this litigation has not eliminated the cloud on the title to their property. This assertion may well be true, but it raises nothing for this Court to review. We acknowledge that public policy favors the free alienability of property, but this Court is a forum for review of rulings by the trial court. See generally Leathers v. McClain, 255 Ga. 378, 379 (338 SE2d 666) (1986). In light of our holding in Division 1 above, however, the issue of whether an easement does exist may finally be resolved.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

       This appeal was originally filed in the Supreme Court. It was transferred here because “questions regarding equity or title to land are ancillary to the main issues on appeal” in the action. This is consistent with our conclusion that the trial court did not adjudicate the issue of the easement, but granted summary judgment on the basis of res judicata, a decision which is reviewable by this Court.


text:
    A97A0560.
    A97A0629.
    TAYLOR v. THE STATE. TAYLOR v. THE STATE.
    (486 SE2d 601)
   Blackburn, Judge.

David Scott Taylor and his brother, James Taylor, were convicted of aggravated assault in connection with a fight at a Waffle House restaurant. Each appeals his conviction, contending that the trial court improperly allowed hearsay testimony. James Taylor also contests the sufficiency of the evidence supporting his conviction.

The Taylors became involved in a fight with another guest, Billy Winnett, at the restaurant. When Winnett’s friends tried to intervene, one of them, Roger Beahm, was stabbed with a steak knife. David Taylor confessed to police that he was the one who stabbed the victim, and that James Taylor did not handle the knife. The evidence adduced at trial showed, and the parties admit in their appellate briefs, that David Taylor had light brown hair and was wearing a white t-shirt the night of the incident, while James Taylor had dark hair and was wearing a pink t-shirt. Other testimony was also presented that the man in the white shirt, David Taylor, was the one who stabbed Beahm.

At trial, the State sought to introduce a statement given by a witness, Jerome Cronin, to a policeman on the night of the incident. The court overruled defendants’ hearsay objection, finding that the statement was part of the res gestae. The policeman then testified that Cronin told him he had seen a man with light brown hair wearing a pink t-shirt pick up a steak knife during the fight. According to the officer, Cronin said he did not see the knife after this point.

1. Both Taylors contend the trial court erred in admitting Cronin’s statement as part of the res gestae. Res gestae is defined in OCGA § 24-3-3 as “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” “[S]uch declarations[ ] must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.” (Punctuation omitted.) Brown v. City of Fitzgerald, 177 Ga. App. 859, 862 (3) (341 SE2d 476) (1986).

“The admissibility of such declarations ... is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from all suspicion of device or afterthought.” (Punctuation omitted.) South Ga. Brokers v. Fidelity Bankers Life Ins. Co., 153 Ga. App. 503, 506 (265 SE2d 815) (1980). “A trial judge’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990).

Cronin’s statement was given to an investigating officer at the scene shortly after the incident. “Hearsay statements made to an investigating officer shortly after the incident are part of the res gestae and are admissible at trial.” Brown, supra at 862 (3). See also Powell v. Jackson, 142 Ga. App. 34, 35 (234 SE2d 837) (1977) (statement to police officer part of res gestae); Land v. McClure, 135 Ga. App. 243, 244 (2) (217 SE2d 600) (1975) (statements made to officer 20-30 minutes after incident admissible). Statements of nonparty witnesses, in addition to statements of defendants, are admissible under the res gestae doctrine. See Williams v. State, 162 Ga. App. 415 (291 SE2d 732) (1982). Although the better practice is to subpoena such witnesses to testify in person and be subject to cross-examination, the trial court has the discretion to allow res gestae statements provided the requirements thereof are satisfied.

The fact that Cronin might have misidentified the suspect does not render his statement inadmissible. Cronin identified the man with the knife as wearing a pink shirt and having light brown hair, although it was clearly established that James Taylor, who was wearing the pink shirt, had dark hair. However, the fact that statements may reflect confusion on the part of the speaker does not render them inadmissible as part of the res gestae. See Thomas v. State, 242 Ga. 712, 714 (1) (251 SE2d 294) (1978).

Under these circumstances, we cannot say that the trial court abused its discretion in allowing Cronin’s statement.

2. James Taylor also contests the sufficiency of the evidence supporting his conviction. A person may be found guilty of being a party to a crime if he intentionally aids and abets another in the commission of the crime. OCGA § 16-2-20 (b) (3). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Looney v. State, 221 Ga. App. 224, 225 (471 SE2d 243) (1996).

Viewed in the light most favorable to the verdict, the evidence showed that James Taylor initiated the fight by hitting Billy Win-nett, and that David Taylor then joined the fight. When Beahm tried to intervene to pull Billy Winnett away, David Taylor stabbed Beahm. James Taylor then hit another victim, Allen Winnett, across the back with a chair. There was testimony that both Taylors then followed the victims out of the restaurant, and that the man in the pink shirt hit Billy Winnett while he was in the car. A waitress testified that the man with the pink shirt and dark hair was holding a knife after the fight, and that a girl with him took the knife and threw it into the bushes.

Decided March 18, 1997

Reconsideration dismissed May 2, 1997

Before Judge Flournoy.

Gregory A. Hicks, for appellant (case no. A97A0560).

James Taylor, pro se.

Lawrence W. Daniel, for appellant (case no. A97A0629).

Thomas J. Charron, District Attorney, Beth T. Golub, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The jury was authorized from this evidence to find James Taylor guilty of aggravated assault beyond a reasonable doubt. This case is similar to Moore v. State, 216 Ga. App. 450, 451 (454 SE2d 638) (1995), where we affirmed Moore’s conviction for aggravated assault despite his contention that he was merely engaged in a fistfight while his companion used a weapon. We held that such a defendant “necessarily ‘aids and abets’ the confederate in his assault upon the other, and is therefore a party to the crime committed by the confederate.” Id. at 451. In this case, James Taylor and David Taylor were involved in a fistfight with Billy Winnett, and Beahm was stabbed while attempting to pull Winnett away from the fight. After the stabbing, James Taylor hit another of Winnett’s friends with a chair. The jury also could have found that James Taylor continued the fight by hitting Billy Winnett in the car as they were trying to escape, and that he helped dispose of the knife. The jury was thus authorized to infer the requisite intent and find James Taylor guilty beyond a reasonable doubt of being a party to the crime of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A0620.
    TERRELL v. HOLMES.
    (487 SE2d 6)
   Blackburn, Judge.

Cecil Roland Terrell appeals the grant of summary judgment to Lynn Holmes on Terrell’s claim of slander, contending that the trial court improperly found the alleged slanderous statements to be privileged. For the reasons discussed below, we affirm the trial court’s order.

Holmes was president of Brewton Parker College, and Terrell was vice president for development. Terrell was dating Lisa Bailey, an employee of the college who worked directly for Terrell. In May 1995, Bailey informed Holmes of problems in her relationship with Terrell. About a week later, Holmes was informed by two individuals that they had seen Terrell pour beer on Bailey at a restaurant. According to Holmes, the individuals also said Bailey had told them Terrell had threatened her on occasions. Bailey denied that she had made such statements. After this lawsuit was filed, Bailey and Terrell were married.

Holmes discussed the situation with the board of trustees and certain other vice presidents of the college. Alan Gragg, vice president for academic affairs, advised Holmes that there was a possibility Bailey could sue the college for sexual harassment. Holmes then met with Terrell and informed him that he was being terminated. Holmes told Terrell that he had exposed the college to a potential sexual harassment lawsuit. According to Terrell, Holmes also stated that Terrell was incompetent.

Terrell subsequently sued Holmes for slander, alleging that Holmes defamed him in his profession by accusing him of sexual harassment and incompetence. The trial court granted summary judgment to Holmes, finding that there was no publication since the allegedly slanderous statements were made only to individuals authorized to receive them.

1. Terrell contends that the court erred in holding that Holmes’ statements to Gragg were privileged. This contention mischaracterizes the trial court’s holding, as the court did not hold that such statements were privileged under OCGA § 51-5-7. Rather, it held that such statements were subject to the “intracorporate exception” to the rule of publication, and thus did not constitute publication as a matter of law.

“Publication is indispensable to recover for slander. Generally, publication is accomplished by communication of the slander to anyone other than the person slandered. Over the years, however, an exception to the broad definition of publication has evolved: when the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/ her duty or authority has reason to receive information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander.” (Citations and punctuation omitted.) Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988); see also Fly v. Kroger Co., 209 Ga. App. 75, 77 (432 SE2d 664) (1993).

Pretermitting the issue of whether any statements made to Gragg were slanderous, it is clear that Gragg falls within this intracorporate exception. Along with Terrell, Gragg was one of five vice presidents of the college who, with the president, were entrusted with management of the college. Holmes advised Gragg of the beer pouring incident and the allegations that Terrell had threatened Bailey, and relied upon Gragg for advice regarding how to handle the situation. It was Gragg who first advised Holmes of the possibility that a sexual harassment lawsuit could be filed against the college.

The fact that Gragg was not Terrell’s superior does not render the intracorporate exception inapplicable, as such exception is not limited to individuals above the plaintiff in the organizational hierarchy. See Ga. Power Co. v. Busbin, 159 Ga. App. 416, 422 (9) (283 SE2d 647) (1981), rev’d on other grounds, 249 Ga. 180 (289 SE2d 514) (1982). The relevant question is whether, because of Gragg’s duty or authority, he had reason to receive the information. Kurtz, supra. As a senior management employee, subordinate only to the president, it is to be expected that Gragg would be consulted by the president prior to a significant action such as the termination of another vice president. This is particularly so where the reason for the termination involves actions which could negatively impact the college as a whole. As vice president of academic affairs, Gragg clearly had reason to be advised of the alleged acts of another vice president in order to provide input regarding the appropriate action to be taken.

In addition to his position as one of five vice presidents, Gragg’s particular responsibilities also demonstrate that statements to him are covered by the intracorporate exception to the publication rule. Gragg was responsible for the adoption of the college’s sexual harassment policy, and had become familiar with the issue by attending conferences regarding sexual harassment in the educational system. Because of this expertise, Gragg had reason to be advised and consulted regarding matters exposing the school to a potential harassment suit. Accordingly, Gragg is subject to the intracorporate exception, and the communication of allegedly slanderous remarks to him does not constitute publication as a matter of law.

Terrell contends that there is a jury question regarding whether the allegedly slanderous remarks were uttered maliciously, and that this precludes summary judgment. However, “[cjontrary to [Terrell’s] assertion, the [intracorporate] exception to the publication rule is not a conditional defense destroyed by proof of malice but, rather, an element of the tort of slander. . . . Whether the communication was made maliciously and with knowledge of falsity is immaterial when there has been no publication, for without publication there is no . . . slander.” Kurtz, supra at 16 (3). Thus, Terrell’s contention is without merit.

2. Terrell also contends that Holmes published his alleged slanderous remarks by repeating them to Bailey, Terrell’s girl friend. After being terminated by Holmes, Terrell told Bailey that he had been fired. He told her that Holmes had indicated he was guilty of sexual harassment, that he had put the college in danger of a lawsuit, and that he was incompetent as a manager. In Terrell’s presence, Bailey then telephoned Holmes to discuss the situation and intercede on his behalf. According to Bailey, Holmes told her that he had fired Terrell because of sexual harassment and his incompetence as a manager. Bailey met with Holmes later that day to discuss the situation further, although she did not in her deposition provide details of this conversation.

Decided April 17, 1997

Reconsideration dismissed May 2, 1997

Before Judge Mullis.

M. Francis Stubbs, for appellant.

Johnson & Montgomery, Albert S. Johnson, for appellee.

We need not decide whether Bailey, as a subordinate employee, is covered by the intracorporate exception to the rule of publication, because Georgia law is clear that “there can be no recovery for an invited libel.” Ga. Power Co. v. Busbin, 249 Ga. at 181. Terrell himself informed Bailey of Holmes’ allegedly slanderous remarks, and then allowed Bailey to telephone Holmes in Terrell’s presence to intercede on his behalf. “The only rational conclusion to be drawn from this evidence is that [Terrell] invited the publication to [Bailey] of the allegedly [slanderous] matter.” Id. at 182. Accordingly, Terrell cannot recover for the publication of the statements to Bailey.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       There is no evidence that Holmes made slanderous remarks to Gragg regarding Terrell’s competence as a manager. “If there is no evidence of any specific words or statements uttered by [Holmes], there can be no finding that he published a slander.” ITT Rayonier v. McLaney, 204 Ga. App. 762, 765 (2) (420 SE2d 610) (1992).


author:
Andrews, Chief Judge.
      Beasley, Judge,

text:
    A97A0240.
    LEWIS v. THE STATE.
    (487 SE2d 533)
   Andrews, Chief Judge.

Appellant Ernest Earle Lewis has filed an “Appeal of Defendant” from his conviction of simple battery. As noted by the State in its motion to dismiss, however, no separate enumeration of errors was filed as required by OCGA § 5-6-40, neither was the document filed in compliance with Rule 27 of this Court. Therefore, the motion of the State to dismiss this appeal is granted. Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995).

Appeal dismissed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur because appellant has failed to comply with the section of the Appellate Practice Act which requires an enumeration of errors, OCGA § 5-6-40, and Court of Appeals Rule 22 which implements that section as specifically provided therein, but he also did not follow several of the requirements for briefs which are set out in Court of Appeals Rule 27.

As to the statute, the Supreme Court of Georgia has held that failure to file an enumeration of errors requires dismissal of the appeal. Lowery v. Smith, 225 Ga. 814 (171 SE2d 500) (1969). See also Benfield v. State, 224 Ga. 139 (160 SE2d 398) (1968). In appellant’s response to the State’s motion to dismiss the appeal, he counters that the brief itself contains two specific numbered “objections” which are sufficient to apprise the Court of his complaints. That begs the question. Even if we liberally construe the “objections” as enumerations of error in the spirit of OCGA § 5-6-30, the statute on enumerations expressly provides that “The appellate court, by rule, may permit the enumeration to be made a part of the brief.” OCGA § 5-6-40. The Court has not done so but instead clearly requires a separate filing. Court of Appeals Rule 22.

Appellant, who is obligated to ascertain and follow the rules of the Court in pursuing appeals, did in fact know them. He cites Court of Appeals Rule 4 in his brief and incorporates a copy of the clerk’s notice of docketing, which refers to the rules and invites appellants to call the clerk’s office “[i]f you have a question or problem.” He simply chose to be selective in following them, either ignoring those which did not suit his style or not exercising diligence in reading them.

He can take no comfort in the case he cites, MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980) (non-precedential), for an enumeration of errors was filed there. The question was whether it was “sufficiently definite and specific to designate the error appealed from.” Id. at 568 (1). (c). In a detailed and lengthy exposition, the Court explained and applied the law with respect to enumerations of error, seeking every avenue to hold it adequate for the purpose of reaching the merits of the appeal. The enumeration was simply too general and keyless to enlighten the Court as to what issue it should consider and decide. So the Court, relying on earlier cases, was relegated to a decision “only [on] the general grounds as to the sufficiency of the facts to support the judgment.” Id. at 569 (1) (c).

Lewis, on the other hand, has not even filed an enumeration of errors. Thus we cannot apply OCGA § 5-6-48 (f). It requires that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.”

Decided May 2, 1997.

Before Judge Crawford.

Alan B. Fecteau, for appellant.

Jerry Rylee, Solicitor, Adam S. Hicks, Assistant Solicitor, for appellee.

For lack of a separate enumeration of error, the Court dismissed the appeal in Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995). Although this was done only after appellant failed to comply with an order of this Court to file such, an order to follow the rules is not a prerequisite to their enforcement or to unfavorable consequences of non-compliance. Compare Tolbert v. Tolbert, 234 Ga. 708 (217 SE2d 162) (1975), where the Supreme Court dismissed an appeal only after failure to comply with a court order; the Court’s rule provided for such an order. There is no such specific rule of this Court, only the general warning of Court of Appeals Rule 7, and there is no ambiguity in the statute or in the rule on enumerations which needs clarification by court order. Nor does any other reason appear to warrant an order.

It is true of the statute and rules in this case, as was true in MacDonald and in the case it quotes, that rules of appellate practice “are made for a substantial purpose, not as mere technical pitfalls to catch the unwary.” Patterson v. Beck, 133 Ga. 701, 704 (66 SE 911) (1910).

       Although the Court held that the appeal “shall be dismissed” for failure to file a separate enumeration of error, it went further and gave an “additional reason” for dismissal, i.e., a procedural ruling on his claim of ineffective assistance of counsel. This second ruling, that appellant’s failure to properly raise and preserve the issue, would be a ground for affirmance, not for dismissal.


text:
    A97A0385.
    THE STATE v. WILLIAMS.
    (486 SE2d 637)
   Pope, Presiding Judge.

Defendant Anthony Maurice Williams was indicted for possession of a controlled substance with intent to distribute, possession of marijuana with intent to distribute, obstruction, possession of a controlled substance with intent to distribute within 1,000 feet of a housing project, and possession of marijuana with intent to distribute within 1,000 feet of a housing project. Defendant filed a pretrial motion to suppress all evidence against him on the ground that such evidence was recovered pursuant to an illegal seizure of defendant. The trial court granted defendant’s motion, and the State appeals. We affirm.

Construed in a light most favorable to upholding the trial court’s findings and judgment, see State v. Burnett, 220 Ga. App. 133 (469 SE2d 324) (1996), the evidence presented at the hearing on defendant’s motion to suppress shows that Officer Wood was on morning patrol in a marked police car when he observed four men, including defendant, standing on a curb near a housing project. Although no illegal or suspicious activity was seen, Wood testified that the physical location of the four men drew his attention to them, as curb areas are popular locations for drug sales and the area around the housing project was known for drug activity. Based on the above, and the fact that he did not recognize any of the men, Wood parked his car close to the men, called for backup and approached the men. As he approached, he asked them how they were doing. When they did not reply, Wood inquired: “Does anybody have any weapons on them?” In response to this question, none of the men said anything, but instead gestured by raising their hands in the air. At that point, Wood immediately began patting defendant down for weapons. As Wood moved to search one of the other men, defendant fled the scene. Wood pursued defendant and grabbed him, but defendant wrestled free. Within less than a minute, however, defendant collided with a backup patrol car that blocked his path. After throwing a bag purportedly containing cocaine and marijuana against a nearby wall, defendant was apprehended and arrested.

It is undisputed that Wood had no articulable suspicion or probable cause sufficient to warrant stopping and searching defendant. Nevertheless, the State contends the trial court erroneously granted defendant’s motion to suppress because defendant’s gesture in raising his hands and his failure to verbally object to the weapons search clearly demonstrate that defendant had voluntarily consented to the search and, thus, that the detainment and search did not constitute an illegal seizure. We do not agree.

Under the circumstances presented in the instant case, the issue of whether defendant voluntarily consented to the search was subject to interpretation and constituted a question of fact exclusively within the province of the trial court as the factfinder. State v. Williams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994). Unless clearly erroneous, the trial court’s ruling as to this issue must be accepted. Id. Upon review, we cannot say as a matter of law that such error occurred because the gesture made by defendant and the other men could be interpreted as merely a negative response to Wood’s question about weapons, rather than consent to the immediate search that ensued. And while it is true that defendant did not verbally object before or during the search, as the trial court pointed out, “silence in the face of a request for permission to search may, when accompanied by other conduct, sometimes be interpreted as acquiescence, [but] such acquiescence cannot substitute for free consent.” (Citations and punctuation omitted.) Id.; see Miranda v. State, 189 Ga. App. 218, 221.(3) (375 SE2d 295) (1988).

Decided May 2, 1997.

Before Judge Bass.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellant.

Law Offices of Michael Lewanski, James W. Krembs, for appellee.

In the absence of free and voluntary consent to the search, or articulable suspicion or probable cause sufficient to authorize the search and detainment at issue, defendant’s act in fleeing was justifiable. See Jamison v. State, 262 Ga. 40 (414 SE2d 466) (1992); State v. Willis, 207 Ga. App. 76, 77 (427 SE2d 306) (1993). And, contrary to the State’s contention, it cannot be said as a matter of law that the illegal seizure had ended when Wood finished searching defendant and, thus, that the evidence obtained after defendant’s apprehension was not obtained as a result of the illegal seizure. Clearly, the illegal seizure continued after the search in that defendant was not free to leave following the search, as is demonstrated by Wood’s immediate attempt to physically prevent defendant from doing so.

In light of the above, the trial court was authorized to conclude that the evidence obtained following defendant’s apprehension and arrest was obtained pursuant to an illegal seizure and, therefore, should be suppressed.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A97A0874.
    TURNER v. THE STATE.
    (486 SE2d 639)
   Birdsong, Presiding Judge.

On appeal from his rape and aggravated sodomy convictions, Eric Turner claims the destruction of a portion of his trial transcript requires a new trial. He also contends the evidence presented was insufficient to support his convictions. Held:

1. As Turner contends, OCGA § 17-8-5 requires that testimony in felony cases be transcribed. Because a flood destroyed the court reporter’s notes of the testimony of two witnesses, Turner argues that the partial absence of the trial transcript effectively deprives him of the right to appeal and requires a new trial. See Wade v. State, 231 Ga. 131, 133 (200 SE2d 271). However, when a portion of the trial transcript is unavailable, OCGA § 5-6-41 (f) and (g) allow the parties to recreate the transcript from memory and allow the court to do so when the parties cannot agree.

Upon learning of the missing testimony, the State moved to recreate the transcript and submitted its recollection of the missing evidence pursuant to OCGA § 5-6-41 (f). Turner made no effort to join in this process, and approximately seven months later the trial court certified the State’s submitted recollection as a substitute partial transcript. We find no error in the trial court’s action, which was within its power pursuant to OCGA § 5-6-41 (g). See Stubbs v. State, 220 Ga. App. 106, 110 (5) (469 SE2d 229).

Although Turner contends the court erred by failing to hold a hearing on this issue, he never suggested to the court that he disagreed with the State’s recollected testimony; neither has he suggested to this Court any error in the substituted transcript. In the absence of disagreement, the trial court was not required to “set the matter down for a hearing with notice to both parties and resolve the difference.” OCGA § 5-6-41 (f). The law does not permit Turner simply to refuse to participate in the statutory procedure and then claim error. See Stubbs, supra; see also Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779), where we held that if a transcript is inaccurate, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f).

2. The evidence presented at trial, when viewed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), supports the convictions. A witness identified Turner as being in the vicinity of Williams’ store before 11:00 on the night of the attack. The victim testified that around that time, she walked past Williams’ store in the direction of her grandfather’s house. Turner, her cousin, grabbed her, pushed her to the ground, and told her he would kill her if she screamed. He then orally sodomized her and vaginally penetrated her before hearing a noise and running away. She immediately called police and showed them the place where she had been attacked. The two officers to whom she reported the attack testified she was covered with dirt, and one officer testified that her face was scratched and her panties torn. This evidence adequately supports the convictions. See Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790); Barnes v. State, 184 Ga. App. 513 (1) (361 SE2d 876).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

Decided May 2, 1997.

Before Judge Bishop.

James E. Friese, for appellant.

Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellee.