text:
    A94A2270.
    EVERETT v. THE STATE.
    (454 SE2d 620)
   Smith, Judge.

Gary Kenneth Everett was charged in a two-count indictment with homicide by vehicle in the first degree, OCGA § 40-6-393, and with violating OCGA § 40-5-58 by driving without a valid driver’s license after his license had been revoked. A jury found him guilty of homicide by vehicle in the first degree and not guilty on the habitual violator count. Judgment was entered on the verdict, and Everett appeals following the denial of his motion for new trial, raising 17 enumerations of error. We note that the State has filed no brief on appeal.

1. In three enumerations Everett contends the evidence was insufficient to authorize his conviction for vehicular homicide.

Count 1 of the indictment charged that Everett did, “without malice aforethought, cause the death of another person, to wit: Forrest H. Worten, Sr., through violation of OCGA § 40-5-58, after having been declared a habitual violator.” In another enumeration of error Everett complains of the denial of his motion to quash this count of the indictment. For the purpose of addressing his enumeration raising the general grounds, however, we assume, without deciding, that Everett’s motion to quash this count of the indictment was properly denied because its wording was sufficiently clear to apprise Everett of the exact nature of the charge against him so that he could present his defense at trial. Hopper v. Hampton, 244 Ga. 361, 362 (260 SE2d 73) (1979). We also assume for the same purpose that the wording of the indictment did not require the State to show a specific violation of OCGA § 40-5-58 (by driving without a valid license, for instance) and that Everett’s license was “in revocation” despite Everett’s argument that he had been issued a probationary license that had not been revoked or suspended at the time of the incident in issue. Nevertheless, we find that the evidence was insufficient to authorize Everett’s conviction.

OCGA § 40-6-393 (c) provides that a person commits homicide by vehicle in the first degree if “after being declared a habitual violator as determined under Code Section 40-5-58 and while such person’s license is in revocation, [he] causes the death of another person, without malice aforethought, by operation of a motor vehicle.”

The language of OCGA § 40-6-393 (c) clearly requires that the State prove not only that the accused was operating a motor vehicle after having been declared a habitual violator, but that such act caused the death of another person. Everett argues that the State not only did not prove that the victim named in the indictment died as a result of Everett’s violation of OCGA § 40-5-58, it did not prove that Worten died. We are constrained to agree that the State failed to carry its burden of proving the elements of the crime charged.

Construed in favor of the verdict (and ignoring the evidence on the contested issue of Everett’s probationary license), the evidence presented by the State showed that Everett was declared a habitual violator in 1987. He was driving his truck on the evening of March 14, 1991 when his right front fender struck a pedestrian on the right side of the roadway.

Deputy Thomas Rachels of the Washington County Sheriff’s Department testified that he responded to a call that there had been an accident. He located the victim, who was responsive at that time. Although he appeared to have a broken pelvis, he seemed to Rachels to be “very clear-headed.” No testimony was presented as to when the victim died or what caused his death. Investigator James Clark of the sheriff’s department testified that the next morning the sheriff asked him to investigate “an accident that happened the previous night in which there was a fatality.” During his testimony, Clark also once referred to the victim as “the deceased.” The “fatality” and “the deceased” were never identified by name.

That was the only testimony presented by the State from which it could be inferred that the victim had died. Even assuming this evidence was sufficient to identify the fatality as Worten, no expert (or non-expert) testimony was presented regarding the cause of Worten’s death, and no death certificate was introduced. There was no evidence from which the jury was authorized to find it had been proved beyond a reasonable doubt that Everett caused the victim’s death.

Decided February 28, 1995.

John R. Thompson, for appellant.

Richard A. Malone, District Attorney, for appellee.

Although in his opening statement defense counsel referred obliquely to the accident being the cause of Worten’s death, he stated that was what he expected the evidence would show. Contrary to the trial court’s ruling on Everett’s motion for new trial, the statement was not an admission of guilt. “To be considered binding against his client as a stipulation of fact, a statement made by counsel during the trial of a case must constitute a ‘(d)istinct and formal admission . . . of fact . . . made for the express purpose of dispensing with formal proof.’’ [Cit.] . . . [Cits.] Viewed in the context in which it was made, the statement at issue obviously cannot be considered a distinct and formal admission of fact made for the express purpose of dispensing with formal proof on the issue of [Everett’s having caused the death of the victim].” Whatley v. State, 189 Ga. App. 173, 175 (4) (375 SE2d 245) (1988). Thus, it clearly could not have authorized the jury to find that the State proved the elements of homicide by vehicle in the first degree beyond a reasonable doubt. Everett’s conviction must be reversed.

2. Our holding in Division 1 renders it unnecessary that we consider Everett’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Pope, P. J., concur.

       It is clear that this count of the indictment charges Everett under subsection (c) of OCGA § 40-6-393. Subsection (a) applies only when the death is caused through the violation of certain enumerated statutes which were not violated here; subsection (b) refers to homicide by vehicle in the second degree.

       There is some confusion regarding the victim’s name as well. The indictment refers to ‘Forrest H. Worten, Sr.,” while throughout the transcript the reference is to “Mr. Warthen.”


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A2416.
    DENNARD v. THE STATE.
    (454 SE2d 629)
   McMurray, Presiding Judge.

Defendant was charged via indictment with one count of burglary. The evidence adduced at his jury trial showed that defendant had previously been in the victim’s apartment. On the night of the break-in, defendant telephoned the victim at work to determine whether she would be working the late shift again. She told him “ ‘Pm going to be here all night. I don’t get off until eight o’clock in the morning.’ ” When the victim returned home the following morning, “the screen was out of [her] window and . . . [her door] was kicked in.” Various items of personal property were missing. The victim “realized that [she] had just moved into the apartment and there was only one person other than [her] mom [who had come] into [her] apartment and that was [defendant]. . . .” In custodial statements, defendant blamed three unknown males for the burglary but admitted being in the victim’s apartment that night. He knew “the door was already kicked in,” and correctly described the missing items as a “black leather living room suite, TV, and VCR.” Defendant led the police to the address of a third party “where the furniture was found.”

The jury found him guilty. His motion for new trial was denied and this appeal followed. Held:

1. In his third enumeration, defendant contends the trial court erred in failing to charge the jury on the presumption of innocence and proof beyond a reasonable doubt in the final charge to the jury. The State argues in reply that any error in failing to repeat the charge on the presumption of innocence as stated in the preliminary instructions was harmless, “because of the shortness of the trial and the defense’s failure to make a formal request for a repeat of the [preliminary] instructions. ...”

The record demonstrates that the trial court gave preliminary instructions on the presumption of innocence and the State’s burden to prove every element of the crime charged beyond a reasonable doubt. Nevertheless, after the evidentiary phase was concluded and closing arguments were made, the trial court merely reminded the jury “that I gave you some general instructions at the beginning of the trial. I won’t repeat everything I said at the beginning, but, remember I did tell you about evidence, about the State having to prove its case beyond a reasonable doubt. Now, let me give you a few more general instructions. . . .” Defendant submitted certain written requests to charge but did not include among them a request for an instruction on the presumption of innocence.

“In all criminal cases . . . tried under a plea of not guilty, the presumption of innocence is a fundamental doctrine of American criminal jurisprudence. This presumption[, codified at OCGA § 16-1-5,] remains with the defendant throughout the progress of the trial, unless and until it be overcome in the minds of the jury from what is adduced on the stand, under the rules of law as given by the court.” Kelly v. State, 204 Ga. 239 (1) (49 SE2d 489). “ ‘ “The failure of a trial judge in a criminal case to charge the jury to the effect that the defendant enters upon his trial with the presumption of innocence in his favor, and that this presumption remains with him, in the nature of evidence, until rebutted by proof satisfying the jury of his guilt to the exclusion of reasonable doubt, is error requiring the grant of a new trial.” (Cits.)’ Foster v. State, 240 Ga. 858, 860 (4) (242 SE2d 600) (1978). . . . Accord, Butts v. State, 13 Ga. App. 274 (79 SE 87) (1913); Reddick v. State, 11 Ga. App. 150 (4) (74 SE 901) (1912).” Schuh v. State, 150 Ga. App. 700 (1), 701 (258 SE2d 328). See also Ealey v. State, 141 Ga. App. 94 (2), 95 (232 SE2d 620). In Georgia, the trial court’s general charge in a criminal trial must include instructions on the presumption of innocence, even in the absence of any written request to charge such a fundamental principle. Foster v. State, 240 Ga. 858, 860 (4), supra. See also Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, Part 2 (D), Suggested General Charges Required in All Criminal Cases (2nd ed.) (1991) (revised July 1992). “It is indeed difficult to imagine a more serious omission from a charge to the jury in a criminal case. [Cit.]” Reaves v. State, 146 Ga. App. 409, 412 (6), 413 (246 SE2d 427). It is no reply that a correct statement of this fundamental principle was given to the jury in preliminary instructions. OCGA § 5-5-24 (b) “requires the trial [court] to give the jury comprehensive instructions after closing arguments, even at the cost of extensive repetition.” Blandburg v. State, 209 Ga. App. 752, 753 (2), 755 (434 SE2d 510). In the case sub judice, the failure of the trial court to include an instruction on the presumption of innocence in its general charge, even in the absence of a written request, was error requiring the grant of a new trial. Foster v. State, 240 Ga. 858, 860 (4), 861, supra.

Decided February 28, 1995.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

2. The evidence, although circumstantial, was sufficient to authorize the jury’s verdict that defendant was guilty, beyond a reasonable doubt, as a party to the burglary alleged in the indictment. Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443); Todd v. State, 189 Ga. App. 538, 539 (2), 540 (376 SE2d 917). Defendant’s fifth enumeration is without merit.

3. Defendant’s three remaining enumerations have been considered and are found to be without merit.

Judgment reversed.

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


text:
    A94A2432.
    JONES v. THE STATE.
    (454 SE2d 631)
   McMurray, Presiding Judge.

Defendant pleaded guilty to possession of cocaine with intent to distribute and reserved the right to challenge on appeal the trial court’s denial of his motion to suppress. Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991). This appeal is properly before this court for review since defendant’s plea of guilty was entered within 30 days of official publication (July 9, 1994) of this court’s decision in Hooten v. State, 212 Ga. App. 770 (1), 775 (442 SE2d 836).

At about 1:50 in the morning on December 31, 1993, Officer C. P. LaRoche of the DeKalb County Police Department was on routine patrol in an area known for illegal drug activity. In darkness, the officer extinguished the lights of his patrol car and turned onto a street where he had made several prior arrests for illegal drug activity. The officer slowly coasted his police cruiser to a vacant lot and quietly stopped. He then suddenly illuminated the area with the headlights of his patrol car and exposed several individuals loitering around a parked car, including a suspected drug dealer known to Officer La-Roche as “Cash.”

“Cash” sprang from the parked vehicle and fled into a nearby thicket as soon as Officer LaRoche illuminated the area. The officer then approached the scene and observed “four other subjects with the vehicle.” Defendant “was seated in the middle rear seat of the vehicle.” Officer LaRoche began questioning defendant and his associates, but defendant did not respond. Officer LaRoche then “noticed ... a bulge coming out of the left side of [defendant’s] cheek.” “At that point[, the officer] noticed that [defendant] kind of choaked (sic) like he was gagging. . . .” Officer LaRoche “asked [defendant] what was wrong [and defendant] told [the officer] he had a tooth ache.” Officer LaRoche then observed several small plastic bags and bits of tissue paper emerging from defendant’s mouth. Officer LaRoche asked defendant to “spit the stuff out.” Defendant complied. “He spit some on the back seat [of the suspect vehicle] and some on the trunk of [Officer LaRoche’s] police car.” The plastic bags contained a substance which tested positive for cocaine. Held:

Defendant contends the trial court erred in denying his motion to suppress, arguing that Officer LaRoche did not have reasonable suspicion to approach and detain him.

“ ‘ “(A) police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer . . . is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) (Cit.)’ Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993).” Wilson v. State, 210 Ga. App. 886 (437 SE2d 867). In the case sub judice, defendant was not only sitting in a parked vehicle at 1:50 in the morning in an area known for illegal drug activity, Officer LaRoche initiated several successful prosecutions (arrests) for illegal drug activity in the very spot where defendant and his associates were detained. These specific and articulable facts along with the fact that a known drug dealer (who was standing by the parked car) fled the moment Officer LaRoche illuminated the scene authorizes the trial court’s finding that Officer LaRoche had reasonable suspicion to briefly detain defendant and his associates to determine the purpose of their early morning gathering. Wilson v. State, 210 Ga. App. 886, 887, supra; See Goodman v. State, 210 Ga. App. 369, 371 (436 SE2d 85). Of course, probable cause authorizing defendant’s arrest arose when Officer LaRoche observed defendant in possession of suspected cocaine. See Copeland v. State, 213 Ga. App. 39, 40 (1), 41 (443 SE2d 869).

Decided February 28, 1995.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert E. Statham III, Robert M. Coker, Assistant District Attorneys, for appellee.

The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A94A2503.
    MOORE v. THE STATE.
    (454 SE2d 638)
   Smith, Judge.

Wayne Moore was convicted of aggravated assault. He appeals following the denial of his motion for new trial.

1. Moore challenges the sufficiency of the evidence to convict him. He does not deny that his companion, Marshall Moore, hit victim Craig Rimpley with “some object” while Moore himself was engaged in a “fistfight/scuffle” with Rimpley. However, he argues that the evidence of his intent was merely circumstantial. Moore contends he established a reasonable possibility that he “only intended to engage in a fistfight with Mr. Rimpley and that he did not intend to be a party to an aggravated assault by encouraging or aiding Mr. Marshall Moore in the use of a weapon.”

Even accepting Moore’s premise, we observe that, without question, a person who engages another in a fistfight while the other is simultaneously being beaten with an object by the person’s confederate necessarily “aids and abets” the confederate in his assault upon the other, and is therefore a party to the crime committed by the confederate. OCGA § 16-2-20 (b) (3). We find no error under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 28, 1995.

James D. Love, for appellant.

Harry N. Gordon, District Attorney, Greg K. Schwartz, Assistant District Attorney, for appellee.

2. Moore contends there was a fatal variance between the allegata and probata because the indictment alleged that Rimpley was beaten with “a certain stick” when Rimpley testified that the object was a “blackjack” — a “foot-and-a-half long piece of hard, black rubber” which was “flexible” and “weighted at one end or the other.” The “stick” referred to in the indictment was described as “the butt end of a boat oar which had been sawed off and then squared off.” This particular “stick” was brandished by Moore that evening, but Rimpley was of the opinion that he was hit with a different object.

Moore theorizes that the “certain stick” could have produced “massive trauma, broken bones and possibly death” — injuries different in kind from the injuries suffered by Rimpley. We may safely assume this is so. However, it does not follow, as Moore suggests, that such a stick could not have caused the less-than-catastrophic injuries Rimpley in fact suffered. Because the stick could have produced injuries similar to those Rimpley suffered, we do not agree that any variance in proof hindered Moore’s ability to present his defense. See generally Battles v. State, 262 Ga. 415, 417-418 (5) (420 SE2d 303) (1992). The trial court did not err in denying Moore’s motions for directed verdict and new trial on this basis.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.


author: Ruffin, Judge.

text:
    A94A2527.
    FINCH v. BROWN.
    (454 SE2d 807)
   Ruffin, Judge.

Barbara A. Finch appeals from the trial court’s entry of a declaratory judgment against her. The entire record from the proceedings below consists of the complaint for declaratory judgment filed by Nell Brown, the entry of service, Finch’s answer and the trial court’s final order.

The limited record shows that Brown sold a house to Finch, and pursuant to a written agreement between the parties, Brown maintained possession of a specified part of the house. When a dispute arose concerning certain possessory rights, Brown filed the complaint for declaratory judgment. After a hearing, the court declared Brown was entitled to possession and use of the east wing of the house, which included the dining room.

In her appeal, Finch enumerates 16 errors. Initially we note that there is no indication in the record that Finch preserved any of these enumerations for appeal, which in itself is sufficient to dispose of all 16 enumerations. See Dickens v. Calhoun First Nat. Bank, 208 Ga. App. 489 (1) (431 SE2d 121) (1993). “ ‘Notwithstanding the deficiencies in [Finch’s] presentation, we are willing, because of [Finch’s] pro se status, to review the merits of [Finch’s] argument to the extent that we can discern what those arguments are. However, in spite of our leniency, [Finch] still has the burden of showing error affirmatively by the record. (Cit.)’ [Cit.]” McHaffie v. Decatur Fed. Savings &c. Assn., 214 Ga. App. 368, 369 (448 SE2d 36) (1994).

1. In two enumerations of error, Finch asserts the trial court erred in limiting the testimony of certain witnesses. Since the “ [admissibility of evidence is a matter which rests largely within the sound discretion of the trial court” Central of Ga. R. Co. v. Butts, 211 Ga. App. 619 (1) (440 SE2d 218) (1993), and there is no record showing the nature of the proffered evidence, these enumerations of error are without merit.

2. In four enumerations of error, Finch asserts the trial court erred in its interpretation of the evidence. “In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous.” (Citations and punctuation omitted.) Lanier v. State of Ga., 212 Ga. App. 51, 52 (441 SE2d 87) (1994). Since there is no indication from the limited record that any clearly erroneous findings were made in this case, we find no error.

3. In four enumerations of error, Finch attacks the performance of her trial counsel. These enumerations are essentially an assertion that Finch had ineffective assistance by her chosen trial counsel. “The Sixth Amendment to the federal Constitution and Art. I, Sec. I, Par. XIV of the Georgia Constitution provide for effective assistance of counsel for one charged with a criminal offense, not participants in a civil dispute. [Cit.]” Calhoun v. Maynard, 196 Ga. App. 219, 210 (1) (395 SE2d 645) (1990). Accordingly, these enumerations are without merit.

4. Finch asserts the trial court erred in having no recorded transcript of the trial. While under OCGA § 5-6-41 (j) any party may, as a matter of right, have a case reported at that party’s expense, that section does not require a trial court in a civil action to have the proceedings and evidence reported by a court reporter. Accordingly, this enumeration is without merit.

Decided February 28, 1995.

Barbara A. Finch, pro se.

Collier, Hunt & Gamble, Edward R. Collier, for appellee.

5. To the extent we can ascertain the grounds for Finch’s remaining enumerations, we are compelled to presume that the trial judge correctly ruled on the issues presented since there is no transcript of the proceedings below. McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990).

6. Brown’s motion for sanctions pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2622.
    SMITH v. THE STATE.
    (454 SE2d 635)
   Ruffin, Judge.

Eric Ake Smith was convicted of possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal, Smith contends the trial court erred in denying his motion to suppress.

The evidence shows that one morning, shortly after midnight, Smith was pulled over by an investigator in the narcotics division of the Douglasville Police Department. The officer testified he observed Smith swerve into different lanes three or four times, and pulled him over because he suspected Smith could have been under the influence of alcohol or drugs. The officer told Smith why he pulled him over and requested his driver’s license, which Smith produced. The officer then asked Smith if he had been drinking. When Smith told the officer he had not been drinking, the officer asked why Smith was weaving. Smith told the officer he was very tired because he had traveled from another state. The officer testified Smith had no odor of alcohol on his breath and no field sobriety tests were administered.

Following the questions regarding Smith’s weaving, the officer asked if he could search Smith’s pickup truck. When Smith would not give his consent to the search, the officer asked if he had any contraband, specifically narcotics, in the truck. When Smith denied having contraband and explained that he just did not want the officer to search the truck, the officer told Smith he would have to call the K-9 unit. The officer testified he detained Smith because he “suspected he possibly could have had narcotics in his vehicle,” then went back to his patrol car, requested the K-9 unit and checked the status of Smith’s driver’s license. When asked the basis for his suspicion, the officer stated that because Smith “wouldn’t consent to a search, [he] felt he had something to hide in the vehicle.” After checking the license and calling for the K-9 unit, the officer observed Smith seated in the truck and placing something in his mouth. When the officer approached the truck, he saw part of a plastic bag sticking out of Smith’s mouth. Following the officer’s instructions, Smith stepped out of the truck and spit out a bag of what appeared to be marijuana.

In determining whether the trial court erred in denying Smith’s motion to suppress the marijuana, we must determine “whether the officer’s action [in pulling Smith over] was justified at its inception, and whether [the detention] was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U. S. 1, 20 (88 SC 1868, 20 LE2d 889) (1967).

1. Smith argues that the initial stop was unlawful because the weaving was a mere pretext to conduct a drug investigation. We disagree. “[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the [stop] ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? [Cits.]” Id. at 21-22. In the instant case, those facts were that the officer observed Smith weaving and this weaving “had in fact served as the actual reason for the stop, the immediate purpose of which had been to investigate a possible DUI violation rather than to effect a search for drugs.” Pupo v. State, 187 Ga. App. 765, 766 (1) (371 SE2d 219) (1988). The trial court found, and we agree, that stopping a vehicle under these circumstances was appropriate for the protection of the public. “Consequently, the trial court’s factual determination that the [officer’s] initial detention of the vehicle had constituted a bona fide traffic stop is supported by the evidence and must be sustained on appeal. [Cit.]” Id.

2. We turn now to an inquiry regarding the scope of Smith’s detention. “While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. [Cit.] Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. [Cit.]” Raney v. State, 186 Ga. App. 758, 759 (368 SE2d 528) (1988). Thus, the United States Supreme Court has held that “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U. S. 491, 500 (103 SC 1319, 75 LE2d 229) (1983).

Decided February 28, 1995.

Daniel B. Kane, for appellant.

David McDade, District Attorney, Jackie N. Stanton, James E. Barker, Assistant District Attorneys, for appellee.

In this case, the officer testified that he stopped Smith to investigate a possible DUI violation and not to effect a search for drugs. Under these circumstances, the officer would have been authorized to ask Smith for his license to establish his identity, and to ask questions reasonably related to whether or not Smith was driving under the influence. In response to such questions, Smith offered a reasonable response that he was very tired from a long drive. Upon hearing Smith’s explanation, the officer would have been authorized to continue asking questions regarding Smith’s condition, to administer a statutorily authorized field sobriety test, or take any other reasonable steps to determine whether Smith was, as he originally suspected, driving under the influence. However, the evidence is uncontroverted that the officer proceeded to ask Smith questions that did not relate to his suspicion that Smith was driving under the influence and that did not relate to any traffic violations, but instead probed into Smith’s possession of contraband, specifically narcotics, and culminated in the officer’s request to search Smith’s truck. This later questioning was based on the officer’s hunch that Smith’s truck contained narcotics. At the point the officer initiated this later probe, he went beyond the permissible scope of the investigation and his further detention of Smith went beyond that permitted by Terry and its progeny.

“The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth amendment rests on the assumption that ‘limitations upon the fruit to be gathered tend to limit the quest itself.’ Thus, evidence may not be introduced if it was discovered by means of a [detention] which [was] not reasonably related in scope to the justification for [its] initiation.” (Citations omitted.) 392 U. S. 1 at 29. Accordingly, we find that since the marijuana was discovered during the continued illegal detention of Smith, the trial court erred in not granting his motion to suppress. See Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2633.
    FERRON v. THE STATE.
    (454 SE2d 637)
    Decided February 28, 1995.

      Loftiss, Van Heiningen & Ward, Walter Van Heiningen, for appellant.

      H. Lamar Cole, District Attorney, James E. Hardy, Mark E.

      Mitchell, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was indicted along with co-defendant Angela Denise Gosier for possession of cocaine with intent to distribute. Co-defendant Gosier entered a plea of guilty and defendant moved to suppress evidence seized from co-defendant Gosier’s apartment. The trial judge overruled this motion and defendant was tried before a jury and convicted. This appeal followed, defendant challenging the denial of his motion to suppress. Held:

“ ‘A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. (Cit.)’ Rakas v. Illinois, 439 U. S. 128, 134 (99 SC 421, 58 LE2d 387). See also United States v. Salvucci, 448 U. S. 83 (100 SC 2547, 65 LE2d 619).” Lester v. State, 163 Ga. App. 604 (1) (295 SE2d 566). In the case sub judice, the evidence adduced at the motion to suppress hearing reveals that the search warrant defendant now challenges was issued for a residential apartment leased, occupied and maintained by co-defendant Gosier. Further, an examination of defendant’s motion to suppress reveals no assertion that defendant has any right, interest or expectation of privacy in co-defendant Gosier’s apartment. In fact, co-defendant Gosier’s trial testimony, wherein she was called as a witness for the defendant Ferron, indicates that she and her two young children (ages four months and two years) are the sole occupants of this apartment; that defendant has never been a resident of co-defendant Gosier’s apartment and that defendant was visiting co-defendant Gosier’s apartment at the time law enforcement officers executed the search warrant which is the subject of the case sub judice. Consequently, since it does not appear defendant has ever had any right, interest or expectation of privacy in co-defendant Gosier’s apartment, he has no standing to challenge execution of any warrant for search of co-defendant Gosier’s apartment. Accordingly, this enumeration is without merit.

Judgment affirmed.

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

       Defendant was also charged in separate counts for obstruction of a law enforcement officer and giving a false name to a law enforcement officer.


text:
    A94A2810.
    GUEST v. THE STATE.
    (454 SE2d 622)
   Ruffin, Judge.

Appellant, Jerry Guest, was convicted of one count of aggravated sodomy, one count of aggravated child molestation and three counts of child molestation involving his thirteen-year-old daughter and her nine-year-old half-brother. He appeals from those convictions following the denial of his motion for a new trial.

1. Guest first contends that the trial court erred in admitting evidence of a prior 1989 conviction involving his daughter (see Guest v. State, 201 Ga. App. 506 (411 SE2d 364) (1991)) because the court failed to specifically find that the State made the three affirmative showings required by Uniform Superior Court Rule 31.3 (B) and enunciated by our Supreme Court in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). We disagree. The record shows that at the pre-trial hearing on the admissibility of the prior act, Guest’s attorney never objected to the admissibility of the similar transaction on grounds that the first two affirmative showings under Williams (that the evidence is being admitted for a proper purpose and that there is sufficient evidence that the defendant committed the independent act) had not been met. Rather, his only comment was that the trial court needed to consider whether the two incidents were similar given the remoteness in time between them. The court ruled that evidence of the similar transactions would be admitted.

Further, at the outset of the trial the State specifically raised the requirements of Williams, reiterated that it had made the three requisite showings, and requested the court to rule on the record that it had done so. The judge responded “[w]ell, I believe I ruled [at the pre-trial hearing] that assuming you could [tell the court what you expect the evidence to be] . . . that I would allow you to do it. So, if you need to perfect the record this morning. ...” Again, Guest’s attorney made no objection as to the sufficiency of the State’s three showings or the court’s findings with regard thereto. His only objection was to the “scope” of the similar transactions that the State intended to introduce. While the court may not have precisely articulated that each of the three showings was satisfactorily made, we believe the court’s determination was sufficient to satisfy Williams and USCR 31.3 (B). Further, “[t]his court has held [that] in cases in which a Rule 31.3 (B) hearing was held, . . . the failure of a defendant to object to the introduction of similar transaction evidence on the basis that . . . the trial court has not made the requisite findings as required by Rule 31.3 (B) and . . . Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991). . . .” (Punctuation omitted.) Walker v. State, 208 Ga. App. 690, 693 (2) (431 SE2d 459) (1993).

2. Guest also contends the trial court erred in admitting evidence, including a videotaped statement by his daughter given in connection with the 1989 indictment, that he engaged in a pattern of molestation from 1984-1988 because this pattern was not included in the prosecution’s notice of its intent to present similar transactions pursuant to USCR 31.3 (B). The notice stated that the “[t]ype of transaction [was] child molestation (the defendant placed his hand on the victim’s vagina); Date 1984-1988; . . . Copy of Indictment 89 CR 3423 is attached.” The referenced indictment was from Guest’s 1989 conviction, and it stated that the molestation occurred on or about December 25, 1988.

Guest contends that he had no notice prior to the trial that the State planned to introduce any similar transaction other than the single December 1988 incident and that he was prejudiced because had he been put on notice of this expected testimony, he could have called a witness to rebut it. This enumeration is without merit. We find it difficult to imagine how a defendant could truly be “surprised” by testimony of events from the very period of time specified on the State’s notice, here 1984-1988. Further, the videotape alleging the prior pattern of molestation was made in connection with the specified 1989 indictment. Accordingly, we find the notice was sufficient to inform Guest that the State intended to introduce evidence of the December 1988 incident as well as similar acts from 1984-1988.

3. Guest contends that the trial court erred in admitting the videotaped statement his daughter made in connection with the December 1988 allegation because the tape violated the child hearsay statute, was cumulative and impermissibly bolstered his daughter’s credibility.

We first address the use of evidence admitted pursuant to OCGA § 24-3-16, the child hearsay statute. Guest’s specific objection at trial was that under OCGA § 24-3-16, such videotapes are admissible when the subject matter of the tape is the specific allegation for which the defendant is on trial, but that here, the tape was not admissible as similar transaction evidence because its subject matter was a prior allegation with which he was not currently charged. We disagree. OCGA § 24-3-16 states in pertinent part that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made. . . .” (Emphasis supplied.) Nothing in the statute restricts the statement to use solely in connection with the prior incident, and in child molestation cases, this court has consistently upheld the admission of similar transactions involving incidents for which the defendant was not on trial pursuant to OCGA § 24-3-16. See, e.g., Green v. State, 212 Ga. App. 250 (2) (441 SE2d 689) (1994) (testimony about similar abuse — for which defendant was not on trial — from victim’s half-sister admissible).

As to Guest’s objection that the videotape impermissibly bolstered his daughter’s credibility, this issue has been “uniformly decided . . . adversely to defendant. [Cits.]” Knight v. State, 210 Ga. App. 228, 230 (2) (435 SE2d 682) (1993). Accord Kelly v. State, 197 Ga. App. 811 (2) (399 SE2d 568) (1990).

Although Guest cites no authority for his contention that it was error to admit the tape because it was cumulative, we conclude that any potential error was harmless. See Roberson v. State, 214 Ga. App. 208 (7) (447 SE2d 640) (1994); Kelly v. State, supra at 814 (3).

4. Guest contends that the trial court erred in allowing testimony by his daughter of prior acts of alleged molestation because the prior acts were not sufficiently similar to those alleged in the indictment as to his daughter, he did not plead guilty to those allegations, and the 1989 conviction was reversed. Guest also contends that acts of molestation against a child of one gender are inadmissible as a similar transaction in a case involving a child of the other gender, because a correlation between two such acts has not been accepted in the scientific community. At trial, however, Guest’s attorney objected only on the ground that the court should consider the fact that the first conviction was reversed, that the incidents were not similar and that the time between the incidents was remote. In fact, it was the trial judge who raised the concern about whether the prior acts involving the daughter were similar in nature to those involving the half-brother. After the State’s response that dissimilar gender did not affect admissibility, Guest’s attorney stated that he had nothing further on that point. “Issues raised for the first time on appeal will not be considered by this court[,] [cits.],” Vick v. State, 194 Ga. App. 616 (1) (391 SE2d 455) (1990), and therefore we will not consider that particular argument or evaluate the acceptance of its underpinnings in the scientific community on appeal.

As to whether the prior allegations of molestation against the daughter were similar to those alleged in the indictment, the record shows that Guest’s daughter testified that in previous years Guest touched her “in my privates, [b]etween my legs and my chest.” She further testified that the incident giving rise to the instant case involved her father rubbing her legs and “up higher” as well as rubbing her chest. Because she did not testify that Guest actually touched her vagina, the court granted Guest’s motion for a directed verdict on that count. We find the fact that Guest moved “higher” but did not actually reach the vagina of no consequence in this regard and likewise find no merit in Guest’s argument that the prior offense was inadmissible because it lacked sufficient similarity and the conviction was reversed. There is no requirement that a previous occurrence be identical to the offense charged or that the prior occurrence resulted in a conviction before the prior occurrence is deemed admissible. Wells v. State, 208 Ga. App. 298 (2b) (430 SE2d 611) (1993).

Decided February 28, 1995.

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, Richard R. Read, Assistant District Attorney, for appellee.

5. Guest also contends that the evidence failed to show beyond a reasonable doubt that he placed his hand on his daughter’s breast and that the trial court should have directed a verdict of not guilty as to this count of the indictment. Pretermitting the question of whether there is any factual difference between a 13-year-old girl’s chest and breast, the record shows that Guest never moved for a directed verdict on this count. As he did not, “the trial court did not err in failing to direct a verdict sua sponte and nothing has been preserved for this court’s consideration on appeal.” Fletcher v. State, 159 Ga. App. 789, 790 (6) (285 SE2d 762) (1981).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Andrews, Judge.

text:
    A95A0031.
    ALEXANDER v. GUTHRIE.
    (454 SE2d 805)
   Andrews, Judge.

Alexander appeals pro se from the order of the superior court denying his petition to legitimate a minor child and terminating his rights in the child.

Alexander, who was incarcerated for child molestation offenses, filed a pro se petition to legitimate a minor child born out of wedlock after he was notified that Guthrie, the child’s mother, had consented to the child’s adoption by her spouse. Guthrie filed a responsive pleading objecting to the legitimation which included a request that the court terminate Alexander’s rights in the child. After a hearing on the petition, at which Alexander appeared pro se, the superior court entered an order finding that Alexander had abandoned his opportunity interest in developing a relationship with the child and that it was not in the best interest of the child that Alexander’s petition be granted. Accordingly, the court denied the petition to legitimate and ordered that any rights which Alexander had in the child were terminated.

On appeal, Alexander claims: (1) that the trial court erred by refusing to continue the hearing on the petition so he could attempt to obtain the services of an attorney to represent him; (2) that he was indigent and the court erred by not appointing counsel to represent him free of charge; and (3) that the trial court erroneously admitted irrelevant and prejudicial evidence at the hearing.

1. Since the appellate record does not contain a transcript of the proceedings in the trial court, we are unable to review Alexander’s claims that the court erroneously refused to grant him a continuance and erroneously admitted certain evidence. An appellant who alleges error in the trial proceedings has the burden of producing a transcript of the allegedly erroneous matter. Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274 (441 SE2d 684) (1994). In the absence of a transcript, we will assume the trial court did not err. Id. at 273.

Contrary to Alexander’s contentions, even if he was indigent, he was not entitled to have an attorney appointed to represent him at public expense in the legitimation proceedings. Compare Wilkins v. Ga. Dept. of Human Resources, 255 Ga. 230 (337 SE2d 20) (1985). Neither was he entitled, as an indigent, to have a transcript of the legitimation proceedings prepared at public expense. Quarterman v. Edwards, 169 Ga. App. 300, 301 (312 SE2d 643) (1983); compare Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976). Alexander did not utilize the procedures set forth in OCGA § 5-6-41 (c), (d), and (g) for preparation of a transcript where a party is financially unable to pay the cost of reporting or transcribing.

The order of the superior court found that Alexander was the biological father of the minor child at issue who was born out of wedlock in 1986; that Alexander was aware that the mother was pregnant and was aware of the birth of the child; that he offered no prenatal assistance, gave no support for the child, and has never seen or communicated with the child. The court further found that Alexander was incarcerated in 1992 for various child molestation offenses and that his testimony that he did not know of the child until he received notice in 1994 was not credible. The court concluded that Alexander has abandoned his opportunity interest in developing a relationship with the child and that the legitimation sought by Alexander was not in the best interests of the child. See In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987). Under these circumstances, the superior court did not abuse its discretion in determining that it was not in the best interest of the child to grant the petition for legitimation. In the Matter of J. M. S., 257 Ga. 630 (362 SE2d 56) (1987).

Decided February 28, 1995.

Joseph A. Alexander, Sr., pro se.

Mary P. Evatt, for appellee.

2. The portion of the order terminating Alexander’s rights in the child must be reversed because the superior court was without authority to enter such an order in this case. Guthrie’s right to file responsive pleadings objecting to the petition to legitimate did not include a right to seek a termination of Alexander’s rights in the legitimation proceeding. See Adamavage v. Holloway, 206 Ga. App. 156, 158 (424 SE2d 837) (1992); In the Matter of J. M. S., supra. Under OCGA § 15-11-5 (a) (2) (C), the juvenile court has exclusive jurisdiction in any proceedings “[f]or the termination of the legal parent-child relationship, other than that in connection with adoption proceedings under Chapter 8 of Title 19, in which the superior courts shall have exclusive jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child.” Accordingly, the superior court has jurisdiction to consider termination of the rights of a putative father only “in connection with adoption proceedings,” which, under appropriate circumstances, has been held to include jurisdiction to consider a separately filed “petition for termination of the rights of a putative father of an illegitimate child specifically stat[ing] that it is in pursuance of the petitioners’ prospective adoption of the child.” H. C. S. v. Grebel, 253 Ga. 404, 406 (321 SE2d 321) (1984). Since the request for termination in this case was not “in connection with adoption proceedings” within the meaning of OCGA § 15-11-5 (a) (2) (C), the superior court was without jurisdiction to enter the order terminating Alexander’s rights.

Judgment affirmed in part and reversed in part.

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

       Although an appeal from a denial of a petition to legitimate requires an application pursuant to OCGA § 5-6-35 (a) (2), a termination order is directly appealable. Hill v. Adams, 182 Ga. App. 848 (357 SE2d 300) (1987); In re S. N. S., 182 Ga. App. 803 (357 SE2d 127) (1987).


text:
    A94A1923.
    RYLES v. THE STATE.
    (454 SE2d 639)
   Ruffin, Judge.

William Lee Ryles appeals his conviction of two counts of burglary and one count of theft by taking.

The evidence at trial showed that late one evening, police responded to a burglar alarm at an auto dealership and found the front door to the dealership office open but no one inside. Although papers were scattered around the office, only a paring knife was missing from a desk drawer. Later that evening, a Jeep was stolen from the same car dealership. Early the following morning, the Jeep was driven into the window of a nearby jewelry store where numerous pieces of silver jewelry were stolen. The Jeep, which the dealership was to sell on consignment, was not missing at the time the dealership was secured following the earlier burglary.

During their investigation, police found that two rings taken during the burglary of the jewelry shop had been pawned by Ryles’s cousin, Earnest Kirksey. While two officers were searching Kirksey’s house, Ryles arrived, and was arrested when the officers noticed he was wearing a necklace that matched the description of the stolen jewelry. Upon searching Ryles, the officers found more stolen jewelry in his pocket. After taking Ryles to jail, the two officers went to his house looking for his roommate, also a suspect in the burglaries. The officers knocked on the door and no one answered. When asked how much force he used to knock on the door, one officer responded that “it would have been as if I knocked on your door; it was just a knock.” As the officers were leaving, a third officer patrolling the area told them she had seen the suspect at the house a few minutes earlier. The officers went back and “knocked harder on the door” at which point it swung all the way open. The officers called out for the suspect, then turned on their flashlights and looked around the living room. When the officers saw some of the stolen jewelry on a coffee table in the living room, they left the house to obtain a search warrant.

In the affidavit and application for the search warrant, one of the officers stated that probable cause existed because at the time of Ryles’s arrest, he was wearing some of the jewelry identified as that stolen from the jewelry store. The affidavit also presented evidence that Ryles lived at the address on the search warrant. Although no mention of the visit to Ryles’s house was made in the affidavit, the judge who issued the warrant stated that in applying for it, the officer testified about the visit to Ryles’s house. After obtaining the warrant, the two officers searched Ryles’s house and recovered numerous pieces of stolen jewelry as well as items stolen in other recent burglaries. Ryles was convicted of burglarizing the auto dealership and jewelry store, and theft of the Jeep.

1. Ryles contends the trial court erred by permitting the State to introduce, as similar crimes, evidence of three other burglaries he was charged with that were previously severed from the trial of the instant case. Ryles argues that the probative value of the evidence was vastly outweighed by the prejudice it created.

Because evidence of other offenses is generally considered to be highly prejudicial, before any such evidence “may be admitted into evidence . . . the state must make three affirmative showings as to each independent offense or act it seeks to introduce.” Williams v. State, 261 Ga. 640, 642 (1) (b) (409 SE2d 649) (1991). The State must show that it “seeks to introduce evidence of the independent offense or act . . . for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility[,] . . . that there is sufficient evidence to establish that the accused committed the independent offense or act[,] . . . [and] that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.]” (Indentation omitted.) Id.

In the instant case, a hearing was held pursuant to Uniform Superior Court Rule 31.3 (B) to determine the admissibility of evidence of the three other burglaries. At the hearing, the State contended it would use evidence of the other burglaries to show Ryles’s bent of mind and motive. These purposes have been deemed an exception to the general rule of inadmissibility. Gonzalez v. State, 213 Ga. App. 667 (1) (445 SE2d 769) (1994).

As to the second affirmative showing required under Williams, we find there was sufficient evidence to establish that Ryles committed the other burglaries. The record shows that items stolen in each of the burglaries were found by the police at Ryles’s house, which was only a block away from the street where the burglarized businesses in the instant case were located. Despite this, Ryles argues that evidence of the other burglaries should not have been admitted because there was no prior guilty plea, admission, conviction or other evidence indicating beyond a reasonable doubt that he committed the other burglaries. “Proof beyond a reasonable doubt is not required as to the proof that the defendant was the perpetrator of an independent similar crime and evidence, like that presented in this case, that defendant was in recent possession of property stolen in a burglary is sufficient to raise an inference that defendant was the one who stole the goods. [Cit.]” Slater v. State, 209 Ga. App. 723, 725 (2) (434 SE2d 547) (1993).

As to the third affirmative showing, all the burglaries involved businesses located on the same street. In all the burglaries, entry into the businesses was made by breaking a window and entering through the opening. This evidence, in addition to the fact that property stolen in each of the burglaries was deposited at Ryles’s house, leads us to the conclusion that there was sufficient similarity between the other burglaries and the crimes charged. “ ‘[T]here is no requirement that the “other transaction” must be identical in every aspect.’ [Cit.]” Gearin v. State, 208 Ga. App. 878, 882 (3) (432 SE2d 818) (1993).

Ryles also argues that admitting the evidence circumvented the trial court’s purpose in severing the offenses. The purpose of severance in a case of this kind, where the offenses were joined solely on the ground that they were of the same or similar character, is to eliminate “ ‘the great risk of prejudice from a joint disposition of unrelated charges.’ [Cit.] ” Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975). Once the severance is granted, that purpose is met, and such grant “would not impact the admissibility of the ‘similar transactions’ evidence.” Cain v. State, 212 Ga. App. 531, 535 (1) (442 SE2d 279) (1994). Having determined above that sufficient evidence was presented to support the State’s motion, we find “[t]he trial court did not abuse its discretion in admitting this evidence under the standards for admitting evidence of similar transactions. [Cits.]” Moore v. State, 207 Ga. App. 897, 898 (1) (429 SE2d 340) (1993).

2. Ryles also asserts that the trial court erred in failing to give a curative instruction to the jury following the admission of certain similar transaction testimony and exhibits which were subsequently excluded by the trial court. Ryles “did not object to the admission of any of this testimony [or these exhibits] during the trial, nor has he suggested, either in the trial court or in this court, what curative instructions ought to have been provided with respect to it. Consequently, this enumeration of error presents nothing for review by this court. [Cits.]” Argo v. State, 188 Ga. App. 102, 104 (3) (371 SE2d 922) (1988). Furthermore, contrary to Ryles’s contention, any harm which may have resulted from the admission of the evidence was not so grievous as to have relieved him of the duty to request a curative instruction. See Tuggle v. State, 211 Ga. App. 854 (2) (a) (440 SE2d 740) (1994).

3. Ryles next contends that the trial court erred in failing to grant his motion to suppress the evidence seized from his house. He argues that by opening the door, shining their flashlights inside, and looking around his living room, the officers conducted a warrantless search of his residence.

“ ‘Whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence because there was an independent source for the warrant under which that evidence was seized. Exclusion of evidence as derivative or “fruit of the poisonous tree” is not warranted here because of that independent source. . . .’ [Cits.]” Mack v. State, 189 Ga. App. 261, 263 (1) (375 SE2d 458) (1988). The independent evidence before the magistrate who issued the warrant showed that when the officers arrested Ryles, he possessed some of the jewelry stolen in the burglary. It also showed that Ryles lived at the address stated in the affidavit. “ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.’ [Cit.]” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). Because the totality of the independent evidence before the magistrate was sufficient to establish probable cause, we find the trial court did not err in denying Ryles’s motion to suppress. Melton v. State, 149 Ga. App. 506, 507 (1) (254 SE2d 732) (1979).

Decided March 1, 1995.

Arthur J. Shelfer, Jr., A. William Clark, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

4. Finally, Ryles contends the trial court erred in denying his motion for a directed verdict as to Count 4, burglary of the auto dealership office, and Count 5, theft by taking of the Jeep. Ryles argues that since there was only circumstantial evidence that he committed the burglary, his motion should have been granted.

In order to convict Ryles of the burglary, the State was required to present evidence that Ryles entered the dealership office with the intent to commit a felony or theft. See OCGA § 16-7-1. The only evidence presented by the State that might connect Ryles to the burglary was the testimony of Earnest Kirksey that he had seen Ryles walking in the direction of the dealership. Although the stolen Jeep was later connected to the burglary of the jewelry store, it is uncontroverted that the Jeep was not taken during the burglary of the dealership. “ ‘Evidence which merely raises a suspicion of guilt is not sufficient to convict. [Cit.]’ [Cits.]” Graves v. State, 172 Ga. App. 829, 830 (324 SE2d 790) (1984). In this case we do not find the testimony that Ryles was seen walking towards the dealership sufficient for a rational trier of fact to have found that he entered the store with the intent to commit a felony or theft. Accordingly, the trial court erred in denying his motion for a directed verdict as to the burglary charge. Id.

However, under the facts presented above, we do find there was sufficient evidence for a rational trier of fact to have found beyond a reasonable doubt that Ryles was guilty of theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, 214 Ga. App. 406 (3) (447 SE2d 712) (1994). Although Ryles contends the State failed to present evidence establishing ownership of the Jeep, the State did present evidence that the dealership was to sell the Jeep on consignment for its true owner and “ ‘[s]o far as the thief is concerned, he cannot question the title of the apparent owner.’ [Cit.]” Hall v. State, 132 Ga. App. 612 (208 SE2d 621) (1974).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A94A2209.
    BALDINO’S GIANT JERSEY SUBS, INC. v. TAYLOR et al.
    (454 SE2d 599)
   Johnson, Judge.

Frame K., Inc., operates a restaurant under a franchise agreement with Baldino’s Giant Jersey Subs, Inc. Frame K employee Paul Bridges was involved in a motor vehicle collision; Jennifer Taylor was a passenger in the vehicle driven by Bridges. Taylor and her parents sued Baldino’s, among others, under the theory of respondeat superior for injuries allegedly caused by the collision. Baldino’s moved for summary judgment on the ground that as a franchisor it cannot be held vicariously liable for the acts of an employee of a franchisee. The trial court denied the motion. This court granted Baldino’s application for interlocutory review.

“[I]n order to impose liability on the franchisor for the obligations of the franchisee, it must be shown that: (a) the franchisor has by some act or conduct obligated itself to pay the debts of the franchisee; or (b) the franchisee is not a franchisee in fact but a mere agent or ‘alter ego’ of the franchisor.” (Citations and punctuation omitted.) McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993). In the instant case, there is no question that Baldino’s did not obligate itself to pay Frame K’s debts. Moreover, contrary to the findings of the trial court and the contentions of the Taylors, there is no evidence that Frame K is merely an agent or alter ego of Baldino’s.

“The historical test applied by Georgia courts has been whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” (Citations and punctuation omitted.) McGuire, supra. Here, the trial court correctly found that Baldino’s had no right under the franchise agreement to control the daily activities of Frame K’s employees. The court erred, however, in finding that the Baldino’s employee handbook creates a question of fact as to whether Baldino’s was actually exercising control over the time and manner of Frame K’s work. This handbook, or manual, is merely a method by which Baldino’s exercises its right to require results from Frame K in conformity with the franchise agreement. Furthermore, there is absolutely no evidence that Baldino’s was in any way controlling Bridges’ acts at the time of the collision.

“[A] franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees. [Cit.]” McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 230 (2) (348 SE2d 748) (1986). Baldino’s exercised sufficient control over Frame K to protect its professional reputation, but did not exercise such control as to render it vicariously liable for the allegedly negligent driving of an employee of its franchisee. The trial court therefore erred in denying Baldino’s motion for summary judgment. See Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).

Decided February 15, 1995

Reconsideration denied March 2, 1995.

McCallar & Associates, Mark Bulovic, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellees.

Judgment reversed.

Beasley, C. J., and Andrews, J., concur.


text:
    A94A2369.
    MORRILL v. THE STATE.
    (454 SE2d 796)
   Johnson, Judge.

Police officer Brett Morrill was indicted for participating in a crime ring, made up of law enforcement officers and others who committed burglaries and robberies in the metropolitan Atlanta area. The state jointly tried Morrill and two co-indictees, deputy sheriff William Moclaire and Troy Endres, before a jury in Fulton County. The jury returned a verdict finding Morrill guilty of three counts of burglary, one count of armed robbery, two counts of aggravated assault and one count of possession of a firearm during the commission of a crime. The jury also found Moclaire and Endres guilty of various offenses. The court entered judgments of conviction against all three defendants on the jury verdicts. The court merged Morrill’s two aggravated assault convictions into his armed robbery conviction and sentenced him to serve a total of 25 years in prison. Moclaire and Endres jointly appealed from their convictions, which this court affirmed. See Moclaire v. State, 215 Ga. App. 360 (451 SE2d 68) (1994). Morrill filed this separate appeal.

1. Morrill challenges the sufficiency of the evidence supporting his convictions. “On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.) Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994). “[The] appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Palmore v. State, 213 Ga. App. 140, 141 (2) (444 SE2d 581) (1994). The evidence in the instant case, viewed in the light most favorable to the verdict, shows that on June 8, 1992, members of the crime ring broke into the Foxx Adult Entertainment Club to steal money. Officer Morrill, who was on duty, acted as a lookout for the ring members who entered the club and monitored his police radio for any calls concerning the burglary. Because the crime ring members were unable to open the club’s safe, Morrill borrowed a hand truck from a nearby convenience store, which the ring members then used to remove the safe from the Foxx premises. Morrill later received approximately $325 as his share of the money found in the Foxx safe.

Two weeks after the Foxx break-in, crime ring members burglarized a Home Depot store. They were unable to open the store safe, but stole various other items. During the burglary, Morrill again was on duty and monitored his police radio in order to warn the ring members if any alarms went off at the store or police were called to the scene. Immediately after the burglary, Morrill met with the ring members to take an inventory of the items stolen.

A week later, the ring targeted the Home Depot for a second theft, planning to lure the Home Depot manager to the store so he could be forced to open the safe. The ring intentionally set off an alarm at the store. Morrill, who again was on duty, answered the alarm. He met the manager at the store to walk through the premises. After finding no one on the premises, Morrill left the manager alone in the store. Two crime ring members then rushed into the Home Depot. After one of the members fired a gun, the manager fell to the floor. The ring members held a gun to the manager’s head, forced him to. open the safe, tied him up and left the store with money from the safe. Morrill received approximately $6,000 for his participation in the second Home Depot burglary.

Having reviewed all of the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Morrill guilty beyond a reasonable doubt of all the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lawson v. State, 214 Ga. App. 464, 465 (1) (448 SE2d 14) (1994); Edwards v. State, 209 Ga. App. 304, 305 (1) (433 SE2d 619) (1993).

2. Morrill claims the court erred in overruling his motion to quash the indictment because he was denied his rights as a police officer to be served with a copy of the proposed indictment at least 15 days before it was presented to the grand jury, to be present when the state introduced its evidence to the grand jury, and to make a statement to the grand jury without being cross-examined. “Peace officers are afforded these rights under OCGA §§ 17-7-52 and 45-11-4 if charged with a crime which is alleged to have occurred while in the performance of their official duties. In Mize v. State, 152 Ga. App. 190 (1) (262 SE2d 492) (1979), this court held that a police officer charged with participating in a burglary while in uniform and on duty was properly denied these protections, inasmuch as the performance of such official duties does not include the commission of burglaries.” (Citation and punctuation omitted.) Gober v. State, 203 Ga. App. 5 (1) (416 SE2d 292) (1992). In the instant case, the state alleged Morrill committed the crimes charged while on duty. Because the performance of Morrill’s official duties did not include the commission of the crimes charged, he was not entitled to the rights afforded by OCGA §§ 17-7-52 and 45-11-4. The court therefore properly refused to quash the indictment.

3. Morrill argues the court erred in denying his motion for a change of venue based on extensive pretrial publicity of the case. The trial court has discretion in determining whether to grant a motion for a change of venue and its determination will not be disturbed absent an abuse of that discretion. Chancey v. State, 256 Ga. 415, 430 (5) (349 SE2d 717) (1986). “In a motion for a change of venue, the [movant] must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. [Cit.]” Grace v. State, 210 Ga. App. 718, 720 (3) (437 SE2d 485) (1993). “Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports. . . . However, widespread or even adverse publicity is not in itself grounds for a change of venue. On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it is related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial.” (Citations and punctuation omitted.) Nobles v. State, 201 Ga. App. 483, 489 (11) (411 SE2d 294) (1991). “[Defendants sometimes also seek to show inherent prejudice has resulted from widespread community fear and bias.” (Citations and punctuation omitted.) Milan v. State, 2Q7 Ga. App. 206, 208 (2) (427 SE2d 573) (1993).

The current case was widely covered in Fulton County news reports. The media coverage cited by Morrill relates both to the discovery of the crimes and the apprehension of people involved in the offenses. The coverage cited is generally factual, not speculative or emotional. Contrary to Morrill’s claims, the record of publicity before us does not show a “barrage of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion. . . . There is no evidence of a total inundation of the judicial process by the media at this trial.” (Citations and punctuation omitted.) Nobles, supra. Because Morrill has not shown inherent prejudice as a result of pretrial publicity or community fear and bias, we conclude that the trial court did not abuse its discretion in refusing to change venue on this basis.

The court also did not abuse its discretion in determining the jury selection process showed no actual prejudice to a degree rendering a fair trial impossible. This determination involves a review of the voir dire examination of potential jurors. Chancey, supra at 429 (5). “[T]he proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Citations and punctuation omitted.) Id. at 431 (5) (C). Here, 115 potential jurors were questioned in individual voir dire and 19 of them were excused because they had formed an opinion of guilt based on pretrial publicity. As to the remaining prospective jurors, Morrill has not shown that any of them were unable to lay aside their impressions and render a verdict based on evidence presented in court. Because the trial court did not abuse its discretion in finding no inherent or actual prejudice due to pretrial publicity, we cannot disturb the denial of Morrill’s motion to change venue. See Crawford v. State, 257 Ga. 681, 683 (2) (362 SE2d 201) (1987); Blige v. State, 211 Ga. App. 771, 772-773 (1) (440 SE2d 521) (1994).

4. Morrill contends the court should have disqualified three jurors for cause on the ground that they were biased against him due to pretrial publicity. “[B]efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. Further, the decision to strike a juror for cause lies within the sound discretion of the trial court.” (Citations and punctuation omitted.) Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993). Here, the court did not abuse its discretion in refusing to excuse the three jurors because they all indicated they could set aside any opinions they had formed about the case due to publicity, and decide the case based on the evidence presented in court and the judge’s instructions. See Watts v. State, 200 Ga. App. 54, 56 (3) (406 SE2d 562) (1991).

5. Morrill claims the court erred in refusing to exclude evidence seized from James Donald Kirkland’s house pursuant to a null search warrant. See State v. Kirkland, 212 Ga. App. 672 (442 SE2d 491) (1994). “[A]n illegal search only violates the rights of those who have a legitimate expectation of privacy in the invaded place.” (Citation and punctuation omitted.) Sanders v. State, 181 Ga. App. 117, 118 (1) (351 SE2d 666) (1986). “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed.” (Citation and punctuation omitted.) Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989). Because Morrill had no legitimate claim to any expectation of privacy in Kirkland’s house, he may not validly seek to exclude evidence illegally seized from that house, and the trial court did not err in denying Morrill’s motion to suppress. See Todd v. State, 184 Ga. App. 750, 751-752 (2) (362 SE2d 400) (1987). Even if the court did err in admitting the evidence seized from Kirkland’s house, the overwhelming evidence of Morrill’s guilt renders the error harmless beyond a reasonable doubt. See Randall v. State, 194 Ga. App. 153, 154 (390 SE2d 74) (1990).

6. Morrill argues he was denied a fair trial because the state violated Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), by failing to disclose the results of a prosecution witness’ polygraph examination and a police officer’s report concerning the polygraph and statements made by the witness. Morrill’s co-defendants, Moclaire and Endres, raised essentially this same argument in their appeal. For the reasons set forth in Moclaire, supra at 360-361 (1), we conclude Morrill was not denied a fair trial under Brady.

7. Morrill claims the court erred in failing to conduct an in camera inspection of the state’s complete file. It is undisputed that the court inspected, pursuant to Morrill’s request, a copy of the prosecutor’s seven-notebook file. Morrill contends this inspection was insufficient because the court refused also to inspect the voluminous files of a multi-jurisdictional law enforcement task force formed to investigate the crime ring. “[C]ounsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and is under no requirement to conduct an investigation on behalf of a defendant. Nor is an accused, as a matter of right, entitled to receive copies of police reports and investigations made in the course of preparation of a case against a suspect. Further, there is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Cer-

tainly, a prosecutor has no obligation to contact local law enforcement and judicial agencies on behalf of the defense to uncover any information which might be remotely relevant. There is no general constitutional right to discovery in a criminal case, and Brady did not create one. Brady cannot be read as requiring that as a matter of constitutional law everything must be disclosed which might influence a jury.” (Citations, punctuation and emphasis omitted.) Massengale v. State, 189 Ga. App. 877, 881 (4) (377 SE2d 882) (1989). Contrary to Morrill’s contention, he was not entitled to discover, or have the court review, all of the police investigatory work done on the case. The court therefore did not err in inspecting only the prosecutor’s file and in refusing to inspect the police investigation files. See Broom v. State, 209 Ga. App. 42, 43 (432 SE2d 823) (1993).

8. Morrill contends the court improperly denied him the right to cross-examine a state witness about criminal charges pending against the witness in Cobb County. Moclaire and Endres also asserted this error on appeal. As we stated in the opinion addressing their appeal: “The federal constitution guarantees the defendant in a criminal trial the specific right to cross-examine a key state witness about criminal charges pending against the witness. Assuming, without deciding, that the witness in the instant case was a key prosecution witness and that the court erred in refusing to allow the cross-examination, the error was harmless beyond a reasonable doubt because the strength of the state’s case was overwhelming and the witness’ testimony [was largely corroborative of other evidence of Morrill’s participation in the crimes charged].” (Citations omitted.) Moclaire, supra at 362 (3).

9. Morrill complains the court erred in allowing the state to publish two photographs to the jury. The state tendered the photographs for admission into evidence after a witness testified that some of the objects depicted in the photographs were used in crimes in which Morrill was implicated. Morrill objected to the photographs in their entirety. The court overruled this broad objection, finding the photographs were admissible. This ruling was not erroneous. “Upon the tender of demonstrative or documentary evidence, part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all. Accordingly, even assuming that certain items in the photographs may not have been shown to be directly relevant to appellant’s instant prosecution, it was not error to fail to sustain the objection to the admission of the photographs in their entirety.” (Citations and punctuation omitted.) Kirkland v. State, 206 Ga. App. 27, 29 (6) (424 SE2d 638) (1992). Because the photographs were properly admitted into evidence, the court did not err in allowing the state to publish them to the jury.

Later in the trial, however, the court ruled that all of the items depicted in one of the photographs, and many of the items depicted in the other photograph, were inadmissible. Based on these rulings, Morrill again objected to admitting the two photographs into evidence. The court sustained this objection and reversed its earlier ruling by holding that the two photographs were inadmissible, and the photographs were not sent out with the jury for consideration during deliberations. If Morrill was not satisfied that this exclusion of the photographs from evidence was sufficient, he should have immediately moved for a mistrial or asked the court to give the jury a curative instruction to disregard the prior publication of the photographs. Morrill does not claim he moved for a mistrial or requested a jury instruction, and our review of the transcript does not reveal that such a timely motion or request was made. “When an appellant could have tendered a timely motion for mistrial or requested additional limiting or curative instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial. [Cits.]” (Punctuation omitted.) Smith v. State, 210 Ga. App. 451 (2) (436 SE2d 562) (1993). “Further, applying the high probability test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we find that even if error had occurred it would have been harmless.” Watkins v. State, 207 Ga. App. 766, 772 (4) (430 SE2d 105) (1993). Morrill’s complaint that the photographs were improperly shown to the jury is without merit.

10. Morrill asserts the court erred in denying his motion to sever his trial from that of Moclaire and Endres. “The grant or denial of a motion to sever is within the discretion of the trial court; and absent an abuse of discretion, the denial of a motion to sever will not be reversed. The trial court in exercising its discretion is to consider three elements: Whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and whether the co-defendants will press antagonistic defenses.” (Citations and punctuation omitted.) Marlow v. State, 207 Ga. App. 269, 271 (1) (427 SE2d 600) (1993). Here, the trial court did not abuse its discretion in finding that none of these elements mandated that Morrill’s trial be severed from that of Moclaire and Endres. At most, Morrill merely raised the possibility that he might have a better chance of acquittal in a separate trial. However, “the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citations and punctuation omitted.) Sims v. State, 186 Ga. App. 74, 75 (4) (366 SE2d 406) (1988). Because Morrill has not made a clear showing of prejudice and a denial of due process, he has not carried his burden. The court committed no error in denying Morrill’s motion to sever.

11. Morrill challenges five similar transactions the court admitted into evidence. “Before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Citations and punctuation omitted.) Carter v. State, 205 Ga. App. 885, 886 (424 SE2d 81) (1992). In the present case, the court held a 31.3 (B) hearing and determined the state made the three necessary showings as to each independent act admitted. Contrary to Morrill’s arguments, the court’s determinations were not erroneous.

Morrill argues the state failed to prove that the similar attempted burglaries of an A & P grocery store, a Wal-Mart department store and a Pep Boys automotive store actually occurred. This argument is without merit because the state presented testimony from crime ring members describing how the ring attempted to commit the burglaries. Morrill’s additional claim that he was not sufficiently identified as a participant in the robbery of a movie theater is without merit because crime ring members testified that he took part in the robbery. There is no requirement that the similar transactions be proved beyond a reasonable doubt. Allison v. State, 213 Ga. App. 195, 197 (2) (444 SE2d 347) (1994). The state in this case adequately proved that the three attempted burglaries occurred and that Morrill participated in the movie theater robbery.

Morrill further argues the movie theater robbery, the attempted Wal-Mart burglary and the theft of a U-Haul truck were not sufficiently similar to the offenses for which he was on trial. “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct outweighs its prejudicial impact. There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Citations, punctuation and emphasis omitted.) Id. at 196 (1). Here, although the similar transactions complained of are not identical to the crimes prosecuted, they were committed by the same group, in the same general area and in the same method as the crimes prosecuted. The similar acts were therefore admissible to show identity, motive, plan and course of conduct. The court did not err in admitting the similar transaction evidence. See Gearin v. State, 208 Ga. App. 878, 882 (3) (432 SE2d 818) (1993).

Decided February 15, 1995

Reconsideration denied March 2, 1995

Joseph J. Drolet, for appellant.

Lewis R. Slaton, District Attorney, Shawn E. Lagrua, Leonora Grant, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.


text:
    A94A2075.
    RICHARDSON v. DENNIS, CORRY, PORTER & THORNTON et al.
    (454 SE2d 643)
   McMurray, Presiding Judge.

Appellant Richardson was employed as an investigator by the law firm of Dennis, Corry, Porter & Thornton. On April 26, 1991, and in the course of this employment she was injured when she slipped and fell down several steps. Arthroscopic surgery was performed on appellant’s right knee and she returned to work on June 24, 1991, but was physically restricted in several respects. She never returned to the field as an investigator.

The surgeon who operated on appellant noted several abnormalities of the joint and anticipated that appellant would have difficulty with this joint in the future. A biopsy taken during the surgery revealed indications of rheumatoid arthritis and appellant was referred to another physician who confirmed the presence of this disease. Appellant continued to be treated for swelling of her left elbow and right knee. Her last day of work was October 8, 1991.

At a hearing to determine change of condition, evidence was presented that appellant’s fall has exacerbated an underlying rheumatoid arthritis and that this condition is deteriorating and completely disabling to appellant when these episodes occur. The administrative law judge (ALJ) found that these episodes occurred with a frequency which prevents appellant from working any job and were the basis for her voluntarily quitting her job with the law firm. Based on these findings the ALJ concluded that appellant had carried her burden in establishing a change in her economic condition for the worse.

The award of the ALJ was affirmed, except as altered by an amendment not relevant on this appeal, by the appellate division. Upon appeal to the superior court, the award of the board was reversed based on the appellant’s failure to have applied for any work after she quit her employment with the law firm and upon the decisions in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) and Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60). We granted appellant’s application for discretionary appeal in order to consider the possibility that the superior court has misapplied our earlier decisions. Held:

“Where an employee seeks a resumption of workers’ compensation disability benefits based on a change of condition, the question is whether the employee’s injury sustained during the course of the employment caused him to be disabled to any extent, in other words, whether it caused a loss of earning capacity. . . . When an employee who has received a disabling injury returns to work and is discharged for a cause unrelated to the injury, he is not entitled to compensation as a matter of law; nor is he denied compensation as a matter of law. In seeking a resumption of benefits, the burden is on the employee to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.” (Citations and punctuation omitted.) Evco Plastics v. Burton, 200 Ga. App. 121, 122, supra. The rule developed in Evco Plastics v. Burton and in Aden’s Minit Market v. Landon, 202 Ga. App. 219, supra, is that the proper method to satisfy the employee’s burden is by evidence that the employee has diligently sought suitable employment but was not hired due to their disability.

Nonetheless, both of these widely noted cases involved employees who were partially disabled, but were physically able to work. We find no authority in this line of cases requiring an employee, such as in the case sub judice, who is totally disabled and physically unable to perform any work to engage in a purposeless demonstration of their disability by seeking work which they are unable to perform. This distinction is subtly referenced in the cited cases via references to where the employee resumes employment but then leaves it for a cause unrelated to the employment-related injury. The crucial factual distinction is that in the case sub judice the appellant returned to work but left due to a cause that is directly related to her employment injury, her total physical disability caused by the exacerbation of her rheumatoid arthritis. Where an employee, such as appellant, returns to work but subsequently becomes totally disabled due to circumstances related to the earlier work injury, proof of these circumstances satisfies employee’s burden to show a change of condition and authorizes an award of compensation. Intl. Ins. Co. v. Whitfield, 135 Ga. App. 216, 217 (1) (217 SE2d 192). The superior court having applied an inappropriate rule of law, its judgment must be vacated.

Decided March 3, 1995.

C. Lawrence Jewett, Jr., for appellant.

Neely & Player, Michael F. Antonowich, for appellees.

George, Bartles & Wallach, Alex B. Wallach, amicus curiae.

On appeal to the superior court, appellees presented additional arguments that the factual conclusions of the board, including those as to the causal link between appellant’s employment-related injury and total disability, were not authorized under the any evidence rule. Under the view of the case taken by the superior court and disapproved in this opinion those issues were not reached by the superior court. Therefore, the case must be remanded to the superior court to consider those issues in the first instance.

Judgment vacated and case remanded with direction.

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


text:
    A94A2109.
    RASKIN v. SWANN et al.
    (454 SE2d 809)
   McMurray, Presiding Judge.

Plaintiff Fred Raskin brought this pro se complaint against defendant Southeastern Newspaper Corporation and one of its reporters, defendant Amy Swann, alleging that Ms. Swann fraudulently and deceitfully “induced plaintiff to grant [a jailhouse] interview . . .” in Augusta, Georgia. As amended, the complaint further alleged that the article of the interview as printed in the newspaper omits the “best material about [plaintiff’s murdered wife, Karen Raskin, . . .] and portrayed [plaintiff] as a crazy killer of his wife.” The complaint expressly alleged that the statute of limitation was tolled by operation of “OCGA 9-3-90, because of mental illness; . . . and OCGA 9-3-91, because of mental disability.” Defendants nevertheless moved for summary judgment on the ground that the two-year limitation period of OCGA § 9-3-33 for personal injuries had run against plaintiff’s complaint. In support of their motion, defendants submitted the affidavit of defendant Ms. Swann, who deposed that on “February 8, 1989, [she] interviewed [plaintiff] by telephone while he was confined and waiting trial in Augusta.” She identified as her writing the article “published in the morning and afternoon editions of The Augusta Chronicle and Augusta Herald on February 9, 1989.” The complaint was not filed until March 4, 1993. Defendants further relied on the deposition of Dr. Everett C. Kuglar, the former “medical director of the Forensic Services Unit at Central State Hospital. ...” Dr. Kuglar was the state psychiatrist who had examined plaintiff in 1989 in conjunction with the murder prosecution and was then of the opinion that plaintiff was “competent to stand trial.” Even though plaintiff had suffered from a type of mental illness known as “bipolar disorder for several years,” Dr. Kuglar concluded that by “June of 1989, [plaintiff’s] mental condition had significantly improved.” Dr. Kuglar was of the professional opinion that “by that date [plaintiff] would be able to understand whether any civil wrongs had been committed against him or not.”

In opposition, plaintiff submitted his own affidavit, deposing that he sustained a frontal lobe “brain injury” and is legally blind as a result of an automobile collision in 1962. He also “was diagnosed as manic depressive (bipolar disorder) in 1979 at Parkwood Hospital, Atlanta.” Plaintiff further stated: “My thoughts are disorganized a lot and I am confused. I usually have poor judgment and my judgment is impaired. I lose my coordination, have racing thoughts and lack of concentration and comprehension; am very forgetfull [sic].” “This affects my day to day life and my ability to manage the ordinary affairs of my life.” Plaintiff also resisted defendants’ motion by objecting to the use of opinion evidence.

The trial court granted defendants’ motion for summary judgment and this appeal followed. Held:

Plaintiff correctly contends that expert opinion evidence generally is not sufficient to authorize the grant of summary judgment over a timely objection. See Bell v. Sellers, 248 Ga. 424, 425 (1) (283 SE2d 877). Moreover, a plaintiff may testify as to his own mental soundness or unsoundness. Branch v. Carr, 196 Ga. App. 534, 535 (396 SE2d 276). The trial court erred in concluding that plaintiff’s affidavit was insufficient to establish the existence of a factual question. “Nonetheless, even if the motion for summary judgment was granted for an erroneous reason, it will be affirmed if it should have been granted for another reason. See Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (2) (345 SE2d 858) (1986).” Dominiak v. Camden Tel. &c. Co., 205 Ga. App. 620, 622 (2) (422 SE2d 887). In the case sub judice, although the pro se complaint is cast in terms of fraud and breach of an alleged agreement, the gravamen of the cause of action is defamation. However, plaintiff does not allege that the article published a false statement. Rather he contends only that the publication is misleadingly incomplete. For purposes of this appeal, even if we were to assume the allegations that the reporter deceived plaintiff and fraudulently induced him to give the interview were truthful, in the absence of an allegation that the publication itself is false (as opposed to the reporter’s actions), plaintiff’s complaint fails to state a claim for which money damages may be awarded. Cox Enterprises v. Thrasher, 264 Ga. 235, 236 (1) (442 SE2d 740). See also Yandle v. Mitchell Motors, 199 Ga. App. 211 (404 SE2d 313). The act of defendants in publishing a truthful article will not support a cause of action for the intentional infliction of emotional distress. Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499). In the case sub judice, any factual question as to the tolling of the statute of limitation due to defendant’s mental condition is ultimately immaterial.

Decided March 3, 1995.

Fred Raskin, pro se.

Hull, Towill, Norman & Barrett, David E. Hudson, for appellees.

Judgment affirmed.

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

       Fred Raskin’s conviction for the murder of his estranged wife was affirmed on direct appeal by the Georgia Supreme Court. Raskin v. State, 261 Ga. 848 (412 SE2d 832).