text:
    A89A0904.
    COOPER v. COMMERCIAL UNION INSURANCE COMPANY.
    (386 SE2d 551)
   McMurray, Presiding Judge.

James Cooper (plaintiff) filed an action for breach of contract against Commercial Union Insurance Company (“Commercial Union”) one day prior to the expiration of the six-year statute of limitation. Commercial Union was served and notified of the action eight months after the filing of the complaint. Commercial Union answered and simultaneously filed a motion to dismiss based on the expiration of the statute of limitation. Plaintiff filed responses, unsupported by affidavit or other evidentiary material, and argued that Commercial Union “is estopped from complaining about belated service, since belated service, if any, was caused by the actions or omissions of [Commercial Union in providing] the Secretary of State [with an] incorrect [address] as to its registered office.”

A hearing was conducted on Commercial Union’s motion and Commercial Union relied upon the undisputed facts of record showing that it was not served with process until over eight months after expiration of the statute of limitation. Plaintiff offered no evidence in opposition to the motion to dismiss and, when the trial court noted this omission, plaintiff’s attorney stated that “[he] had no duty to respond . . .” to Commercial Union’s motion to dismiss and argued that it was Commercial Union’s burden to present evidence that the statute of limitation had not been tolled. The trial court did not agree and granted Commercial Union’s motion to dismiss. This appeal followed. Held.

1. In his first enumeration, plaintiff contends the trial court considered evidence at the hearing on Commercial Union’s motion to dismiss and thereby converted the motion to dismiss into a motion for summary judgment. From this perspective, plaintiff argues that he was entitled to an additional 30 days after the hearing to prepare a response to the summary judgment motion. This contention is without merit.

There is nothing in the record to show that Commercial Union’s motion to dismiss was converted into a motion for summary judgment. There was no evidence offered at the hearing on Commercial Union’s motion to dismiss. The motion to dismiss was based solely on facts apparent on the face of the pleadings. “When a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible, a motion to dismiss barred claims properly is granted. Mullins v. Belcher, [159 Ga. App. 520 (2), 521 (284 SE2d 35)]; Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 768 (227 SE2d 397).” Bailey v. Kemper Group, 182 Ga. App. 604, 607 (356 SE2d 695). In the case sub judice, the face of the pleadings reveals that Commercial Union was served with notice of plaintiff’s claim over eight months after the statute of limitation had expired. Further, the record shows that plaintiff failed to show, by “amendment or by affidavit,” that a tolling of the statute was possible. Consequently, the trial court did not err in granting Commercial Union’s motion to dismiss and in refusing plaintiff’s request for an additional 30 days to respond to the motion. Plaintiff had more than ample time to respond to Commercial Union’s motion to dismiss. The motion to dismiss was filed on July 13, 1988, and the hearing on the motion was conducted on October 28, 1988.

Decided September 18, 1989.

Pat D. Dixon, Jr., for appellant.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Jean F. Johnson, Gary L. Seacrest, for appellee.

2. Plaintiff’s initial brief contains neither argument nor citation of authority to support his remaining enumerations of error. “Accordingly, those enumerations are deemed abandoned. Rule 15 (c) (2) of the Rules of The Court of Appeals of Georgia; Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 282 (3) (306 SE2d 366) (1983). [Plaintiff’s] ‘supplemental brief’ . . . ‘does not resurrect from abandonment enumerations not addressed in the initial brief.’ McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 116 (274 SE2d 34) (1980); Wade v. Thomasville Orthopedic Clinic, supra.” Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (3) (328 SE2d 564).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A0941.
    GRANDMA’S BISCUITS, INC. v. BAISDEN.
    (386 SE2d 415)
   Banke, Presiding Judge.

The appellee sued to recover for injuries sustained when he was shot, without provocation or apparent motive, by an unknown assailant while a patron at a restaurant owned and operated by the appellant. The case is before us on interlocutory appeal from the denial of the appellant’s motion for summary judgment. The appellant contends that the assailant’s conduct was an unforeseeable criminal act for which it cannot be held responsible, while the appellee maintains that the assault was foreseeable and that the appellant was negligent in providing security at the restaurant. Held:

1. The general rule is that a landowner is under no duty to anticipate a criminal assault against an invitee by a third party; however, “[t]he rulé has been held inapplicable if the landowner had reasonable grounds for apprehending that such a criminal act would be committed. [Cit.]” Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Evidence of prior criminal acts may be admitted to establish that the landowner was on notice that his patrons were subject to the risk of criminal assault, provided that the circumstances surrounding the prior acts were “substantially similar” to those surrounding the acts on which the suit is predicated. See McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130) (1983). “Whether a ‘substantial similarity’ exists must be determined by the facts of each individual case. It is not required that the offenses be identical. ‘All that is required is that the prior (incident) be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated (incident).’ ” MARTA v. Allen, 188 Ga. App. 902, 903 (374 SE2d 761) (1988).

In support of its motion for summary judgment, the appellant relied on testimony from several of its officers and employees, including the restaurant’s manager, to the effect that no shooting or other violent crime had previously occurred at the restaurant. In opposition to this testimony, the appellee submitted a police computer printout showing that between 1981 and 1984 various other criminal offenses had been reported at the address in question. However, none of those offenses had involved a shooting, and only one, which had occurred approximately five months prior to the occurrence on which the present action is based, had involved an assault. The appellant maintains that, in the absence of a showing that the circumstances of that assault were similar to those of the assault for which the appellee seeks to recover, this evidence fails to satisfy the “substantial similarity” requirement and thus fails to negate the evidence offered in support of its motion for summary judgment. We agree. The computer printout does not reveal whether the prior assault occurred inside the restaurant or outside, or even whether it involved a patron of the restaurant. Thus, we conclude that it does not establish the occurrence of a similar crime at the restaurant which would have served to place the appellant on notice that its patrons were exposed to an unreasonable risk of danger from criminal assault. Accord Nalle v. Quality Inn, supra; McCoy v. Gay, supra.

Decided September 18, 1989.

James T. Budd, for appellant.

W. Wheeler Bryan, for appellee.

2. The appellee contends that the appellant may nevertheless be charged with liability under the theory that it had undertaken to provide security at the restaurant but had then failed to use reasonable care in carrying out that undertaking. In support of this theory, the appellee points to certain testimony by the restaurant’s manager to the effect that he had not made his usual periodic check of the restaurant and parking lot prior to the incident. However, the appellee does not suggest how the shooting might have been prevented had such a check been made. In Adler’s Package Shop v. Parker, 190 Ga. App. 68 (378 SE2d 323) (1989), where a store patron had been shot despite the efforts of a security guard who had intervened to protect her, we reversed the denial of the store owner’s motion for summary judgment, holding that “an injured person seeking to impose liability upon another for the negligent performance of a voluntary undertaking must show either detrimental reliance or an increased risk of harm. . . .” Id. p. 72. In the present case, the appellee has not alleged that he was aware of or acted in reliance upon any undertaking by the appellant to provide security at the restaurant, nor has he alleged that the appellant’s efforts in this regard increased the risk that an assault might occur. Accordingly, we hold that the trial court erred in denying the appellant’s motion for summary judgment.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1020.
    ESTES EQUIPMENT COMPANY, INC. v. CORPORATE STEEL, INC.
    (386 SE2d 553)
   Deen, Presiding Judge.

This lawsuit arose out of an oral contract between the partiesl under which Corporate Steel, Inc., submitted a series of telephone bids on various Estes Equipment Company, Inc., projects. Corporate Steel brought suit against Estes Equipment to recover $38,964.96, contending that Estes Equipment breached its contract by failing tol pay for work it performed. In its amended answer, Estes Equipment! claimed a set-off because of faulty workmanship, defective materials! and a partial payment. A non-jury trial was held and the court! awarded Corporate Steel $30,968.50.

1. Appellant first contends that the court below erred in exercising jurisdiction over Estes Petroleum Equipment, Inc., an entity that is not a party to this action. While Estes Equipment claimed at trial that Estes Petroleum was a party to certain contracts in this case, the trial court never made any finding that Estes Petroleum was subject to the jurisdiction of the court. It was not a party to the action and no judgment was entered against it. The trial court merely held that the contracts in issue were between appellee and appellant and not with Estes Petroleum. There is no merit in this enumeration.

2. Appellant further claims that the court erred in permitting Corporate Steel to proceed on an alter ego theory.

There is no evidence that Corporate Steel proceeded on such a theory. In the complaint, the plaintiff alleged that a contract existed between it and Estes Equipment and that the contract was breached by non-payment for work performed. It was appellant who attempted to interject a third party into the case by claiming that Corporate Steel had actually contracted with Estes Petroleum. The trial court found that the contracts were between Corporate Steel and Estes Equipment and that Estes Equipment was the alter ego of Estes Petroleum. In other words, Estes Equipment raised a defense that the contract was with a third party, and the court found that the defendant was the alter ego of the third party. There is no merit in this enumeration.

3. Appellant next claims that there was insufficient evidence for the court to find that Estes Equipment was the alter ego of Estes Petroleum.

We must point out that this was an issue that appellant was required to prove at trial. It raised the defense that the contract was made with Estes Petroleum, which was not a party to the lawsuit. The plaintiff merely claimed the existence of the contract and its breach for non-payment. The trial court found no merit in the defense, and in its findings of fact, set forth multiple reasons for its finding, including the fact that Gary Estes, who was president of both corporations, exercised complete control over the assets of both entities without the apparent sanction of the board of directors of either; that the corporate accounts of Estes Petroleum were transferred and consolidated in the Chattanooga office of Estes Equipment; and that the offices, staff, and accounting functions of both corporations were controlled by Estes Equipment.

In reviewing a non-jury judgment, an appellate court will not reverse the lower court’s finding of fact if there is “any evidence” to support it. Outdoor Advertising Assn. v. Dept. of Transp., 186 Ga. App. 550 (367 SE2d 827) (1988). There was ample evidence to support this finding of fact.

Decided September 18, 1989.

James E. Spence, Jr., for appellant.

Adkins & Robertson, Russell L. Adkins, Jr., for appellee.

4. The evidence was also sufficient to support the amount of the judgment. The transcript is replete with evidence which sets forth the contract price of the various projects, the set-off amounts, and the payments made by appellant. Outdoor Advertising Assn. v. Dept. of Transp., supra.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Benham, Judge.

text:
    A89A1342.
    HUGGINS v. THE STATE.
    (386 SE2d 703)
   Benham, Judge.

Appellant was convicted and sentenced for aggravated sodomy and child molestation. He now appeals, questioning the sufficiency of the evidence presented against him and the legality of his sentence.

The victim, an eight-year-old boy in whose mobile home appellant resided, testified that he slept in a bunk bed in the bedroom he shared with appellant, who slept in a double bed; that appellant had gotten into bed with him at night and had placed his hand on the child’s sex organ; that appellant had made the child place his hand upon appellant’s sex organ; and that appellant had inserted his penis into the child’s anus several times a week for several weeks.

1. OCGA § 16-6-2 (a) states that “[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person.” Child molestation occurs when “[a] person . . . does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Appellant does not dispute the sufficiency of the evidence against him on the count alleging child molestation. He now asserts and sought at trial a motion for directed verdict of acquittal on the fact that the State failed to prove that the act of sodomy was done “with force,” thereby failing to prove an essential element of the crime of aggravated sodomy. However, the Supreme Court has ruled that “[s]exual acts directed to children are, in law, forcible and against the will. [Cit.]” Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342) (1987). See also Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) (1987). In Cooper, the Supreme Court relied on Carter v. State, 122 Ga. App. 21 (176 SE2d 238) (1970), in which the Court of Appeals opined that “the commission of sodomy by an adult on a child . . . could not be simple sodomy, but would always be aggravated sodomy . . . because the ‘with force and against the will’ element of the crime is automatically supplied by the commission of the crime on a person, such as a young child . . ., who has neither the physical nor the mental capacity to give consent as a matter of law. [Cit.]” Id. at 22. The court then cited what is now OCGA § 16-3-1, which states that “[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act . . . constituting the crime.” It thus appears that the Supreme Court is of the opinion that an act of sodomy perpetrated upon a child who has not attained the age of 13 constitutes aggravated sodomy because the act done to a child of that age is automatically done with force and against the child’s will. Therefore, proof that the child was eight years old at the time of the offense is sufficient evidence that the act of sodomy was done with force and against the will of the victim. Richardson, supra; Cooper, supra. Hines v. State, 173 Ga. App. 657 (2) (327 SE2d 786) (1985), does not require a different result inasmuch as it is without precedential value since one judge on the division concurred in judgment only (see Rule 35 (b) of the Rules of the Court of Appeals), and a majority of the Court of Appeals held it was without precedential value in Cooper v. State, 180 Ga. App. 37 (348 SE2d 486) (1986). In light‘of the above, there was sufficient evidence for a rational trier of fact to find appellant guilty of aggravated sodomy beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Richardson v. State, supra), and it was not error for the trial court to deny appellant’s motion for a directed verdict of acquittal on that count. See Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984).

2. Appellant contends that the trial court erred in sentencing him for both aggravated sodomy and child molestation because the two offenses constituted “but one course of conduct.” “If both convictions were based upon the same, single act, only one conviction could stand. [Cit.]” Garrett v. State, 188 Ga. App. 176 (3) (372 SE2d 506) (1988). See also LaPalme v. State, 169 Ga. App. 540 (1) (313 SE2d 729) (1984). Since the indictment charged appellant with committing the two crimes by means of separate and different sexual acts (one being anal intercourse with the child and the other consisting of using his hands to fondle the child’s penis and having the child use his hands to fondle appellant’s penis), each of which was factually and legally distinct from the other and was proved without reference to the other, the trial court did not err in entering judgments of conviction against appellant on each of the two counts involved. Garrett v. State, supra.

Decided September 18, 1989.

Charles E. Day, for appellant.

John M. Ott, District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A1367.
    SPENCER v. THE STATE.
    (386 SE2d 705)
   Beasley, Judge.

Defendant appeals his conviction of armed robbery, OCGA § 16-8-41. He contends that his retrial after a prior mistrial violates the United States Constitution’s prohibition against double jeopardy. He also asserts that the evidence was insufficient to sustain the verdict of guilty.

1. Defendant does not rely upon the Georgia statute or provision of the Constitution regarding former jeopardy. Instead he calls into issue solely the Fifth Amendment to the United States Constitution. We therefore consider only that basis of attack. See Leeks v. State, 188 Ga. App. 625, 626 (2), fn. 2 (373 SE2d 777) (1988); Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986).

Defendant was first tried on June 6, 1988. After two witnesses, including defendant’s alleged accomplice Bobby Lee Howard had testified, a key prosecution witness was not available. The witness, Howard’s girl friend, Sheila Johnson, had been subpoenaed and was present on the morning of the trial but did not respond for the afternoon session. After a two-day delay for what proved to be a fruitless search, the trial court declared a mistrial. The witness was subsequently located and arrested, and defendant was scheduled for retrial. He filed a plea of former jeopardy and moved to dismiss the charges against him.

During the hearing the State sought to show that there was no prior knowledge that the witness would not appear and that the witness’ presence on the first morning of the trial was proof that there were no reasonable grounds to foresee her subsequent behavior. Defendant relied on a remark by the prosecuting attorney in his opening statement, describing what he envisioned would be proved from the testimony of Sheila Johnson: “We anticipate that if, and when, she takes the witness stand in the trial, she will testify to knowing Bobby Lee Howard because [he] was also a boyfriend of hers.” Defendant urged that this established the State knew, or suspected, the witness would not testify and that the prosecution proceeded without even requesting a continuance so that finally the drastic remedy of mistrial had to be utilized. The State explained that the quoted language was used merely as a precautionary measure in case the witness did not testify as expected, as a means of “hedging” or softening any adverse impact from such failure. The use of this subjunctive language referred to whether the witness would testify to facts substantially as related by the prosecuting attorney, not whether she would testify at all.

The trial court concluded that a mistrial was properly granted and denied defendant’s motion to dismiss predicated upon former jeopardy.

The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784 (89 SC 2056, 23 LE2d 707) (1969); Clark v. State, 144 Ga. App. 69 (240 SE2d 270) (1977). Since jeopardy had attached in the first trial, the question is whether the right to retry defendant survived the entry of a mistrial over objection by defendant. Underlying the double jeopardy provision is the recognition of the valued right an accused has, once a jury has been sworn, to have his trial proceed to conclusion before that tribunal. Jones v. State, 232 Ga. 324, 326 (206 SE2d 481) (1974); Wade v. Hunter, 336 U. S. 684, 689 (69 SC 834, 93 LE 974) (1949). Therefore, the power of the trial court to interrupt proceedings by declaring a mistrial, on the State’s or its sua sponte motion, is subject to stringent limitations. McCormick v. Gearinger, 253 Ga. 531, 533 (322 SE2d 716) (1984); Arizona v. Washington, 434 U. S. 497, 508 (98 SC 824, 54 LE2d 717) (1978).

The soundness of the court’s action is examined under the test originally propounded by United States v. Perez, 22 U. S. 579, 580 (6 LE 165) (1824): whether, taking all circumstances into consideration, there was a manifest necessity for the act, or the ends of public justice would otherwise be defeated. The trial court’s sound discretion is circumscribed by the need for greatest caution and a weighing of defendant’s right to have his trial completed before the particular tribunal against the public’s interest in having fair trials designed to end in just judgments. Oregon v. Kennedy, 456 U. S. 667, 672 (102 SC 2083, 72 LE2d 416) (1982); Illinois v. Somerville, 410 U. S. 458, 462 (93 SC 1066, 35 LE2d 425) (1973).

This case is in that special category where the strictest scrutiny is required, i.e., when the reason for the mistrial is the unavailability of critical prosecution evidence, and where the State has an opportunity for overreaching by using its superior resources to harass or achieve a tactical advantage over defendant. Cobb v. State, 246 Ga. 619, 620 (272 SE2d 296) (1980). If the prosecutor proceeded to trial aware that a key witness was not available to testify and a mistrial was granted for that reason, a second prosecution is barred. Downum v. United States, 372 U. S. 734, 736 (83 SC 1033, 10 LE2d 100) (1963). Appellant concedes that there was no bad faith on the part of the State’s attorney, but “possibly negligence” in proceeding rather than asking for a continuance before voir dire commenced. But at that time the prosecutor did not know she would not be present when called. Despite defendant’s interpretation of the subjunctive language used by the prosecuting attorney, that it showed the State was aware the witness would not appear, the trial court was authorized to find to the contrary, as it did. Downum does not control.

The facts most closely approximate those of Davis v. State, 170 Ga. App. 748 (318 SE2d 202) (1984), where a rape victim was present on the first day of the trial but absent the following morning when she was scheduled to testify. After continuing the case to allow a search to proceed until that afternoon, the trial court granted a mistrial over defense objection. It was later revealed that the witness, just fifteen, had a history of being a runaway but the State was unaware of these circumstances prior to trial. The prosecutor’s statements in this case did not manifest State knowledge, or reason for knowledge, that the witness would absent herself from call for the proceedings once she appeared at the trial. Balancing the right to a fair trial versus defendant’s right to completion of the trial before the same tribunal, we find no abuse of discretion by the trial court. There was “manifest necessity” for the declaration of a mistrial because the witness was crucial in that she could corroborate the accomplice’s inculpatory testimony, she was present when the money was split between the two robbers and they told her what they had done. There was support for finding that the ends of justice would have been defeated by permitting the trial to continue.

2. Defendant contends there was insufficient corroboration of the accomplice’s testimony so that there was no evidence to sustain his conviction. The testimony of an accomplice alone is not sufficient to convict for a felony. OCGA § 24-4-8. Likewise a confession must be corroborated, see OCGA § 24-3-53, but only by proof of the corpus delicti. Nation v. State, 180 Ga. App. 460, 461 (1) (349 SE2d 479) (1986); Reddick v. State, 202 Ga. 209 (1) (42 SE2d 742) (1947). A confession is sufficient corroboration for the testimony of an accomplice. Vaughn v. State, 139 Ga. App. 565, 568 (1) (228 SE2d 741) (1976); Wade v. State, 195 Ga. 870, 876 (2) (25 SE2d 712) (1943); Schaefer v. State, 93 Ga. 177 (1) (18 SE 552) (1893).

Defendant admitted to the State’s witness that he committed acts which amounted, in law, to armed robbery. This was sufficient corroboration. The evidence was such that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.

Decided September 18, 1989.

Althea L. Buafo, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Charles Weston, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       After remand, the Oregon Supreme Court held independently that the state constitution, which had been raised but not ruled on earlier, was not violated either. State v. Kennedy, 295 Or. 260 (666 P2d 1316) (1983).


text:
    A89A1396.
    SANDERLIN v. ALLSTATE INSURANCE COMPANY.
    (386 SE2d 707)
   Deen, Presiding Judge.

Betty Sanderlin planned to travel to Kernersville, N. C., on February 22, 1987, and agreed to take several men with her in her van. They were going to Kernersville to pick up some tractors and to drive them to Port City Truck Sales in Savannah for resale. Each of the designated drivers was paid for his services by Port City Truck Sales. When she became ill and was unable to make the trip, she lent her van to James Tant so he could drive the men to Kernersville. En route to Kernersville, the vehicle collided with a tractor trailer while Tant was driving. Suit was brought against him by one of his passengers. Tant demanded that Sanderlin’s insurance carrier, Allstate, defend him. It filed a petition for declaratory judgment, joining Sander-lin as a defendant. The trial court granted the insurance company’s motion for summary judgment, holding that because the van was being used in an automobile business operation it came within the automobile business exclusion contained in the policy. Held:

Appellant contends that under the facts the use of the van was not an integral part of the automobile business of Port City Sales and relies upon Phoenix Ins. Co. v. Morters, 179 Ga. App. 40 (345 SE2d 128) (1986).

Allstate argues against coverage of the vehicle under two policy exclusions:

This coverage does not apply for liability for . . . (2) Auto business operation such as repairing, servicing ... or selling of autos. However, coverage does apply to your resident relatives, your partners, or the partnership in business, or employees of the partnership or of the resident relative when using your insured auto ... (5) Anyone other than you, for claims made by a co-worker in the course of employment. An “auto” is defined as “a land motor vehicle designated for use principally upon public roads.”

Decided September 18, 1989.

W. Lamar Fields, for appellant.

Kent & Barrow, R. Stephen Sims, for appellee.

In Phoenix Ins. Co. v. Morters, supra, the court recognized two main types of “automobile business” exclusions. The first, or older type, focused on the type of use to which the vehicle was being put at the time of the collision and excludes vehicles from coverage which are being used in the automobile business. The second, or newer type, focuses on the person who is in charge of the vehicle at the time of the collision.

The exclusion in the instant case, as in Phoenix Ins. Co. v. Morters, supra, focuses upon the use of the automobile at the time of the collision, but waives the exclusion when certain specified persons are driving. The vehicle in question was being used to transport drivers for Port City Truck Sales to a place where they would pick up tractors and drive them to Savannah for resale. Two of the individuals involved had been paid in the past by Port City Truck Sales to perform this service and the designated drivers were being paid for making this trip. Appellant’s argument that the use of the vehicle for such a purpose was an isolated incident and does not prevent coverage despite the language used in the exclusionary clause is without merit. The unambiguous language of the exclusionary clause indicates that any such use of the vehicle except by certain specified individuals is excluded from coverage. See also Allstate Ins. Co. v. McBride, 117 Ga. App. 592 (161 SE2d 415) (1968), wherein it was held that the use of the vehicle was merely ancillary to the automobile business. In the instant case the use was an integral part of the business because the purpose of the use was to obtain vehicles for resale.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A1399, A89A1400.
    WHIDDON v. STARGELL (two cases).
    (386 SE2d 884)
   Birdsong, Judge.

In Case No. A89A1399, appellant timely filed a notice of appeal “from the Order and Writ of Possession entered herein on the 12th day of December, 1988.”

In Case No. A89A1400, appellant timely filed a notice of appeal “from the Order and Writ of Possession entered herein on the 24th day of February, 1989.”

Appellee filed motions to dismiss these appeals on the grounds that there was no certification by the trial court pursuant to OCGA § 9-11-54 (b) and no compliance with the requirements of OCGA § 5-6-34 (b).

Case No. A89A1399

This is a direct appeal from the order and writ of possession entered by the trial court on December 12, 1988. The record in this case shows that when and after this order was entered other claims remained pending in the trial court. As this is a case “ ‘involving multiple . . . claims, a decision adjudicating fewer than all the claims . . . is not a final judgment. (Cit.) In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) [(cit.)] or there must be compliance with the requirements of OCGA § 5-6-34 (b) [(cit.)]. Where neither of these code sections [is] followed . . ., the appeal is premature and must be dismissed.’ ” Patrick v. Glass, 188 Ga. App. 737 (374 SE2d 229). Neither of these procedures was followed in this case; the appeal must be dismissed.

Appellant’s assertion that this appeal can be brought solely under the provisions of OCGA § 44-7-56 is without merit. This code section does not provide any special right of direct appeal, rather this section expressly makes any appeal taken in regard to dispossessory proceedings subject to provisions of “Chapters 2, 3, 6, and 7 of Title 5” as applicable. (Emphasis supplied.) OCGA § 44-7-56.

Case No. A89A1400

Both appellant and appellee have characterized this as an appeal from the trial court’s granting of partial summary judgment to appel-lee. If this characterization is correct, then the appeal is not premature and would not be dismissed. Nevertheless, we cannot blindly accept such assertions. “In every matter coming to this court we are required to examine the record to make certain we possess jurisdiction.” Mitchell v. State, 157 Ga. App. 181, 182 (276 SE2d 864), citing Stephenson v. Futch, 213 Ga. 247, 248 (98 SE2d 374).

OCGA § 9-11-56 (h) provides that “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” (Emphasis supplied.) We have held that OCGA § 9-11-56 (h) “gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final under OCGA § 5-6-34 or 9-11-54 (b).” Williams v. Thomas, 183 Ga. App. 51 (1) (357 SE2d 872); accord Segrest v. Intown True Value Hardware, 190 Ga. App. 588 (1) (379 SE2d 615); compare Hardwick &c. Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822 (1) (363 SE2d 31) and National Equip. &c. Supplies v. Hamrick Mfg. &c., 186 Ga. App. 400 (367 SE2d 287). Thus, an order granting ' partial summary judgment is directly appealable under OCGA § 9-11-56 (h).

However, appellant’s-notice of appeal on its face clearly reflects that the appeal was taken not from the order partially granting summary judgment filed on February 10, 1989, but rather is from the order and writ of possession filed on February 27, 1989. As such, it is not subject to direct appeal, because other claims remain pending in the trial court (e.g., issue of commissions owed to defendant and past rent due and owing to plaintiff). Patrick v. Glass, supra. Thus, the notice of appeal fails to specify any appealable judgment from which this particular appeal has been entered.

Appellant has not filed an amended notice of appeal with this court. Rather, he has elected to enumerate as error that “[t]he [t]rial [c]ourt erred in granting [p]laintiff’s Motion for Summary Judgment as to the issue of ownership of the property.” “The fact that an ap-pealable judgment is shown to exist, or that the antecedent ruling on the motion . . . would be reviewable when enumerated as error on the proper designation of an appealable judgment, does not cure the fatal defect in the notice of appeal arising from the failure to appeal from such a judgment. Accordingly, this court is without jurisdiction to entertain the appeal.” (Emphasis supplied.) Ruth v. Kennedy, 117 Ga. App. 632 (161 SE2d 410); see also Fredericks v. State, 168 Ga. App. 278 (308 SE2d 693). The case before us readily is distinguishable from those instances where the faulty notice of appeal fails to specify definitely the judgment, and thus can be revitalized by the protective ambit of OCGA § 5-6-48 (f). Rather the order in this case specifically designates that the appeal is to be taken from what happens to be a nonappealable order. Compare Ballew v. State, 225 Ga. 547 (170 SE2d 242) and Ruth, supra, with Blackwell v. Cantrell, 169 Ga. App. 795 (315 SE2d 29).

It is unclear, comparing the notice of appeal and the contrary enumeration of error, exactly what order the parties intended timely to appeal. In instances where the notice of appeal is so faulty as to preclude jurisdictional vesting, we have established a liberal procedure, consistent with OCGA § 5-6-30, which allows appellant to correct the jurisdictional deficiency by filing an amended notice of appeal. See generally Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5); Blackwell v. Cantrell, supra; see also Jim Walter Homes v. Strickland, 185 Ga. App. 306, 307 (363 SE2d 834). The record before us contains no such amendment. Accordingly, we are without jurisdiction and this appeal must be dismissed. Ballew v: State, supra; Ruth v. Kennedy, supra.

• Appellee’s motions for damages for filing of frivolous appeal are denied.

Decided September 18, 1989.

Joseph R. Baker, Lillian Neal, for appellant.

Glaze, Fincher & Bray, Thomas M. Conway, C. Crandle Bray, for appellee.

Appeals dismissed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1482.
    ARMECH SERVICE COMPANY v. ROSE ELECTRIC COMPANY.
    (386 SE2d 709)
   Birdsong, Judge.

Appellant appeals from the judgment entered granting judgment on appellee/plaintifFs complaint and against defendant on appellant/ defendant’s counterclaim.

Appellee Rose Electric Company (Rose), an electrical subcontractor, filed a two-count suit against appellant Armech Service Company owned by John Strode. Appellant counterclaimed asserting various items of damages, but in its brief asserts that the essence of its counterclaim was to seek damages against Rose “in the amount of $125,995.00, alleging defects in work, materials and workmanship.”

Appellant contracted with appellee to perform certain electrical services as a subcontractor on two job sites known as Peachtree Hills Apartments and Dunwoody Creek Circle. Rose performed work on the Peachtree Hills project and was paid in full by appellant. Thereafter, Rose submitted a bill for certain work outside the scope of the Peachtree Hills contract. Appellant refused to pay for this extra work. Regarding the Dunwoody Creek project, the parties gave conflicting accounts as to the scope of the electrical contract. Rose asserted that it submitted a $5,000 draw request after completion of the “rough” stage (phase I) of the project, which appellant declined to pay. Thereafter, Rose did not perform any more electrical work for appellant. The first count of Rose’s suit was for $5,000 unpaid on the repair contract at Dunwoody Creek, and the second count was for $3,215.50 on an open account for work and material expended at Peachtree Hills in completing the asserted extra work. In support of its counterclaim, appellants presented evidence of certain deficiencies and defects in the electrical work by Rose at both project sites. Strode also testified, without objection, in certain instances as to some of the labor and material costs required to correct the deficiencies found in Rose’s work. Held:

1. Appellant asserts the trial court erred in not permitting a witness for appellant to testify as to his opinion of values.

In one section of its brief, appellant contends that Strode “was qualified as an expert witness, and was permitted to testify as to values pursuant to OCGA § 24-9-66. . . . His opinion also would be that of an expert, pursuant to OCGA § 24-9-67, and would be admissible as an expert.” The only argument advanced in appellant’s brief in direct support of this specific enumeration of error is that “[t]he court refused on at least one occasion to permit . . . Strode to testify as to his opinion of values . . . which is contra to his ability to testify pursuant to OCGA § 24-9-67.” See generally OCGA §§ 24-9-66; 24-9-67; Doughty v. Simpson, 190 Ga. App. 718 (2) (380 SE2d 57); see Four Oaks Properties v. Carusi, 156 Ga. App. 422 (3) (274 SE2d 783); Orkin &c. Co. v. Thrift, 154 Ga. App. 545 (1) (269 SE2d 53).

Strode (who had majored in electrical engineering, attended certain naval schools of construction, had previously held an electrician’s license, and who by virtue of long-time occupation was familiar with proper electrical wiring) was properly qualified as an electrical expert. Doughty, supra at 720. Nevertheless, we find this enumeration of error to be without merit.

The pages of the transcript cited by appellant fail to reveal a single instance where the trial court erroneously refused to permit Strode to testify specifically “as to his opinion of values.” In one instance, however, this question was asked: “And in your making your last payment of $10,000, did you have an opinion as to what you were paying for?” A timely objection was made to this question on grounds of lack of relevancy. The trial court noted that Strode had already answered this question and directed counsel to ask another question. Counsel complied with this instruction. Irrelevant matter should be excluded. OCGA § 24-2-1. “ ‘ “[T]he issue as to the relevancy and materiality of evidence is for the trial court.” ’ [Cit.] Thus, ‘ “(a)dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” ’ ” Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411). We find no abuse of discretion established in this instance.

Although the trial court may on other occasions have curtailed Strode’s testimony as to value and repair costs, such curtailment does not appear at the points in the record cited by appellant. It is not the function of this court to cull the record on behalf of a party in search of instances of error. “ ‘The burden is upon the party alleging error to show it affirmatively by the record.’ ” Pennsylvania Millers &c. Ins. Co. v. Davis, 186 Ga. App. 301 (1) (367 SE2d 91).

2. Appellant asserts that the trial court erred in directing a verdict in favor of appellee as to appellant’s counterclaim.

We note that both parties concede in their briefs that appellant’s counterclaim essentially was grounded on allegations of defects in work, materials, and workmanship. “The measure of damages to correct the ‘faulty’ work was the amount necessary to correct the defective workmanship.” Doughty, supra' at 721. That is, the proper measure of damages for defective workmanship generally would be the cost of repair of the defect. Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913); Gregory v. Townsend Roofing Co., 163 Ga. App. 836 (1) (296 SE2d 154); see Ayers Enterprises v. Adams, 131 Ga. App. 12, 17 (3) (205 SE2d 16); compare Rose Mill Homes v. Michel, 155 Ga. App. 808 (1) (273 SE2d 211). We are satisfied that the record contains at least some evidence of the cost of repairs to appellant.

A motion for directed verdict cannot be granted if there is “ ‘any evidence’ creating a material issue of fact.” Professional Ins. &c. v. Sizemore Elec. Co., 188 Ga. App. 463 (1) (373 SE2d 276). See Department of Human Resources v. Montgomery, 248 Ga. 465, 466 (284 SE2d 263). However, “[w]here there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Hall v. Rome Auto. Co., 181 Ga. App. 621, 622 (1) (353 SE2d 542). Thus, “[t]he direction of a verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Emphasis supplied.) Piedmont Engineering &c. Corp. v. Amps Elec. Co., 162 Ga. App. 564 (5) (292 SE2d 411). As the record contains some evidence, albeit slight, in support of appellant’s counterclaim, and as the evidence with all reasonable deductions therefrom does not demand a particular verdict pertaining thereto, we find that the trial court erred in granting a directed verdict in behalf of appellees.

Appellees, however, argue that any error would be harmless, as the trial court did not prevent the jury from off-setting any of the counterclaim amounts from the amounts which appellees had sued for, and because the jury in fact did offset about $2,800 on the second count. This argument is not persuasive. First, we note that the trial court did not expressly instruct the jury regarding set-off, and thus did not provide any legal guidelines to follow in effecting such a procedure. Moreover, after directing the jury to enter the directed verdict for appellee/plaintiff against appellant/defendant on the defendant’s counterclaim, the trial court instructed the jury that “[t]he defendant . . . had filed a counterclaim . . . we’ve dealt with that issue and the counterclaim is not before you at this time.” Secondly, we will not speculate as to the basis for the jury’s award as to the second count. We have consistently held that an appellate court will not engage in unwarranted speculation regarding the conduct of the jury in arriving at its verdict. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510); Thomas v. Clark, 188 Ga. App. 606, 608 (373 SE2d 668). In view of the state of the evidence and the instructions to the jury, we cannot conclude that such error was harmless within the meaning of OCGA § 9-11-61.

Decided September 18, 1989.

Gerald W. Fudge, for appellant.

Kirby G. Bailey, for appellee.

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1506.
    EVANS et al. v. THE STATE.
    (386 SE2d 712)
   Banke, Presiding Judge.

The appellants, Randall G. and Stevie D. Evans, were jointly tried and convicted of burglary and were sentenced as recidivists to 20 years’ imprisonment. They appeal from the denial of their joint motion for new trial.

At approximately 11:50 p.m. on August 19, 1988, Sgt. Strickland of the Hall County Sheriff’s Department was dispatched to investigate a burglary which had been reported at the Calvary Temple Open Bible Church in Hall County. Approximately three minutes later, while en route to the church, he observed the appellants walking alongside the highway carrying what appeared to him to be a “large radio cassette player” and a metal detector. Sgt. Strickland testified that the location where this occurred was only a five-to-ten minute walk from the church. As he passed the appellants, he applied his brakes, and they immediately fled towards some nearby railroad tracks, throwing the equipment they were carrying into the weeds as they did so. Sgt. Strickland pursued the men in his vehicle and was able to apprehend appellant Randall Evans almost immediately. Appellant Stevie Evans was found hiding inside a nearby culvert about an hour later and was arrested at that time. In the interim, a Yamaha keyboard, a microphone, and a metal detector were recovered from the weeds into which the appellants had been observed throwing thei equipment they were carrying. These items were identified at trial as| having been taken from inside the church building.

Rejecting offers of appointed counsel, the appellants insistedl upon representing themselves at trial. They agreed, however, to allow] an appointed counsel to sit behind them at trial for the purpose ol providing such assistance as they might request. Held:

1. The evidence of the appellants’ guilt may fairly be characterized as overwhelming. At the very least, it was sufficient to enable a rational trier of fact to find them guilty beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellants contend that they were not properly cautioned of the dangers of proceeding to trial without counsel. “ ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981), quoting Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). The record in the case before us reveals that both appellants had acquired familiarity with the operation of the criminal justice process through prior felony convictions. While representing themselves in the present case, they sought and obtained pre-trial discovery and filed numerous other pre-trial motions, including motions to suppress and to dismiss, motions challenging the array of grand jurors, motions to quash subpoenas, and a plea in bar based on a double-jeopardy argument. During the trial, they conducted extensive cross-examination of the state’s witnesses, made numerous objections, presented six witnesses of their own, and introduced 14 exhibits. The counsel appointed to assist the appellants testified at a post-trial hearing that he had gone to the jail on two occasions prior to trial to discuss their case with them. He stated that he had told them “that they needed to be represented, that it was an absolute suicidal type of thing to go and conduct a trial without any knowledge of the rules of evidence or what was being done,” but that they had insisted on representing themselves, telling him “that they did not trust me or any attorney.”

In Clarke v. Zant, supra, the Georgia Supreme Court recognized the dilemma facing a trial judge when an accused insists on representing himself. If the accused is allowed to proceed pro se, he may later charge that his waiver of counsel was not intelligent and voluntary; and if he is not permitted to proceed pro se, he may later charge that appointed counsel was forced upon him against his will in violation of his constitutional right to represent himself. Id. 247 Ga. at 197. On the basis of the appellants’ demonstrated familiarity with criminal procedure and the efforts made by their appointed “advisory” counsel to dissuade them from representing themselves at trial, we have no hesitation in holding that, at least in the sense that they were aware of their right to be represented by counsel and of the dangers of proceeding without such representation, their decision to represent themselves was intelligent as well as voluntary. Accordingly, we find this enumeration of error to be without merit.

3. Since the appellants chose to represent themselves at all stages of the proceedings in the trial court, they are in no position to complain that they were provided inadequate assistance by the counsel appointed to assist them during the trial of the case. See Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982); Tucker v. State, 173 Ga. App. 742 (2) (327 SE2d 852) (1985); Wallis v. State, 170 Ga. App. 354 (2) (317 SE2d 331) (1984).

4. The appellants contend that the trial court erred in allowing the state to introduce evidence concerning a prior burglary which had been committed by Randall Evans several years earlier. The modus operandi of the prior burglary was similar to the burglary for which the appellants were on trial in that access to the building had been gained in each instance through a rear window at a time when the structure was not occupied. Also, the appellant had been accompanied by an accomplice in both instances and had attempted on both occasions to flee on foot upon being confronted during or immediately after the burglary. Accordingly, the trial court did not abuse its discretion in concluding that the offenses were sufficiently similar to render evidence of the prior burglary admissible on the issue of whether appellant Randall Evans had participated in the offense for which he was on trial. Accord Watkins v. State, 187 Ga. App. 108 (369 SE2d 356) (1988); Nelson v. State, 181 Ga. App. 481 (2) (352 SE2d 804) (1987); Scott v. State, 162 Ga. App. 541 (1) (292 SE2d 125) (1982).

5. We reject any contention by appellant Stevie Evans that, because there was no evidence that he had been a party to the prior burglary, the admission of the evidence concerning that offense was unduly prejudicial to him. “Being tried with a co-defendant who has prior convictions that are made known to the jury does not result in prejudice requiring reversal.” Givens v. State, 184 Ga. App. 498, 499 (1) (361 SE2d 830) (1987).

6. Since a defendant has no Fourth Amendment rights with respect to discarded or abandoned property, the trial court did not err in denying the appellants’ motion to suppress as evidence the stolen items which they had thrown into the weeds. See State v. Howell, 180 Ga. App. 449, 451 (349 SE2d 476) (1986); Golden v. State, 163 Ga. App. 519 (295 SE2d 333) (1982).

7. Probable cause clearly existed for the appellants’ arrest. See Moore v. State, 155 Ga. App. 721 (1) (272 SE2d 575) (1980). Moreover, even had the arrest been unlawful, that would not, in and of itself, have operated as a defense or bar to the appellants’ prosecution. See Mortimer v. State, 177 Ga. App. 679, 680 (1) (340 SE2d 649) (1986).

8. We have examined the appellants’ remaining enumerations of error and have determined that they establish no ground for reversal.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided September 18, 1989.

Daniel J. Sammons, for appellant.

Stevie D. Evans, pro se.

Randall Evans, pro se.

C. Andrew Fuller, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A1533.
    BLANOS v. THE STATE.
    (386 SE2d 714)
   McMurray, Presiding Judge.

Defendant appeals his conviction for driving a motor vehicle while having a prohibited concentration of alcohol in his body. OCGA § 40-6-391 (a) (4). Held:

1. In his first enumeration, defendant contends the trial court erred in denying his motion for an independent expert to examine the Intoximeter 3000 that was used to test his breath. Defendant argues that the due process requirements of Patterson v. State, 238 Ga. 204 (232 SE2d 233), demand that his expert be given an opportunity to examine the machine which was used to measure the amount of alcohol in his breath. This argument is without merit.

In Patterson, the Supreme Court held that a defendant charged with possession of marijuana has the right to an independent analysis of the alleged marijuana. In Sabel v. State, 248 Ga. 10 (282 SE2d 61), the Supreme Court went further and held “that the due process requirements of Patterson . . . are not limited to narcotics cases [, but that a] criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion.” Sabel v. State, 248 Ga. 10, 16 (6), 17, supra. In the case sub judice, defendant is not seeking an independent examination of “critical evidence” which led to his conviction, i.e., a sample of his breath, he seeks to test the equipment which was used to measure the level of alcohol in his breath. This distinction places defendant’s request for an independent expert examination of the Intoximeter 3000 that was used to test his breath outside the safeguards of Patterson. Nothing in Patterson or Sabel requires the State to allow a defendant access to equipment which is used to examine evidence gathered during a criminal investigation. Moreover, if the Intoximeter 3000 that was used to test defendant’s breath had been tested by defendant’s expert on or after the date of defendant’s motion, the testing would not prove that the machine gave an inaccurate reading for defendant since the original tests condition, including defendant’s own physical condition, could not have been duplicated. See Kuptz v. State, 179 Ga. App. 150, 152 (9) (345 SE2d 670). Consequently, the trial court did not err in denying defendant’s motion for his expert to examine the Intoximeter 3000 that was used to test his breath.

Decided September 18, 1989.

Paul H. Kehir, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., R. Andrew Fernandez, Assistant Solicitors, for appellee.

2. Defendant’s second enumeration is rendered moot by the holding in Division 1 of this opinion.

3. In his final enumeration, defendant contends the State failed to lay a proper foundation for the introduction into evidence of the results of his breath test.

A DeKalb County “ID technician” testified that the results of defendant’s breath test “were a .19 grams percent.” The defense did not object to this testimony. After the defense cross-examined the “ID technician,” the State offered a printed report which indicated the results of defendant’s breath test. The defense then objected arguing that “[t]here is no evidence that the results appearing on [the printed report] are . . . accurate from a calibrated, State approved Intoxime-ter.” “Failure to make a timely and specific objection at trial may be treated as waiver on appeal. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160).” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552). In the case sub judice, since the defense did not object to the results of defendant’s breath test at the time the evidence was first introduced, any objection to the introduction of this evidence was waived. Consequently, there remains nothing for this court to review.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1535.
    HIGHTOWER v. THE STATE.
    (386 SE2d 716)
   Birdsong, Judge.

Appellant Eugene Hightower appeals pro se the order of the trial I court denying appellant’s motion for out-of-time appeal. Appellantl asserts that the trial court abused its discretion in denying his motionl for out-of-time appeal, particularly as the district attorney had no ob-| jections to the granting of his motion, his attorney failed to informl him of his right of appeal, and the trial court clearly had the author-| ity to grant his motion.

Appellant was convicted on May 23, 1988, of two counts of selling cocaine. On December 27, 1988, appellant filed a pro se motion for leave to file and proceed out-of-time appeal. A hearing was held on February 3, 1989, and an order was filed on March 21, 1989, denying the motion.

At the hearing, appellant testified under oath that he did not file a timely appeal, because he “thought [his] lawyer was supposed to file it.” However, he also made a judicial admission that he did not ask his attorney to file an appeal, because “I didn’t have time to ask him.” Appellant attributed this failure to the fact that he was in jail and did not “see” his attorney anymore. Appellant’s former defense counsel was present at the hearing and stated in his place that while the jury was deliberating he “went over for the third time the process of appeal” should appellant be convicted. (Emphasis supplied.) The attorney also stated that he discussed the same procedure with appellant’s family at appellant’s request.

Six days after the trial, the attorney sent to appellant, at the Butts County Jail, a letter as follows: “You may recall that the Court told you that you had thirty days to file any notice of appeal if you wished to appeal your conviction and sentence. At this time it is obvious that the family or yourself will not be engaging me to continue on to represent you. ... I suggest that you tell the Sheriff or the Deputy there to notify the Court that you may need appointment of an attorney to handle your Appeal. On the other hand, if you have already secured private counsel to handle your Appeal, then that won’t be necessary. ... I am sending the Judge a letter to alert him that you may need appointment of counsel, and most particularly to alert him that I will not be pursuing the Appeal for you.” (Emphasis supplied.) Appellant’s trial attorney also sent a letter to the trial judge informing him inter alia that appellant would not be engaging the attorney’s services to pursue an appeal, and that he may need appointment of counsel.

Appellant’s trial attorney also stated that appellant had given him “permission and direction” to speak with his son, Emanuel, about all facets of his case. The attorney held a conference with the son, and was directed “not to proceed unless [he] heard further.” This conference occurred before the expiration of the appeal period, and the son informed the attorney that appellant “would make the arrangements he wished to.” Appellant did seek a sentence review. Appellant’s trial attorney further stated that he had no indication at all that appellant desired to appeal. The trial judge stated at the hearing that it was his “standard practice” to advise all defendants who have a bench or jury trial of their “right to appeal and the necessity of filing notice of appeal in writing with the Clerk of the Court.” The trial court concluded that whether the court had advised appellant of his right to appeal that the attorney had done so. Appellant denied that he had received the attorney’s letter while in prison; however, he did not expressly deny being orally advised by his attorney during the jury’s deliberations. Held:

Decided September 18, 1989.

Eugene Hightower, pro se.

As a general rule, this court will attempt to render a decision on the merits of every criminal appeal. See Conyers v. State, 183 Ga. App. 591 (359 SE2d 454). But, this rule is not without legitimate exceptions. For example, “[i]f a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court.” State v. Denson, 236 Ga. 239, 240 (223 SE2d 640); see Willis v. State, 189 Ga. App. 404 (377 SE2d 552).

The direct and circumstantial evidence of record is overwhelming, and we conclude, that appellant was thoroughly advised of and was aware of his right to make a timely appeal; that appellant never requested his trial attorney to file an appeal in his behalf; that appellant directed his attorney to consult with and accept direction from appellant’s son, regarding further representation of appellant on appeal; that the attorney was directed by the son not to proceed with the appeal unless further notified; that the trial attorney thereafter was not directed to proceed; that appellant was aware that his trial attorney would not be representing him in submitting an appeal; that the trial attorney took reasonable measures to notify appellant that the attorney would not be submitting an appeal in his behalf; and that the trial attorney took reasonable measures to inform appellant of the steps that needed to be taken if the accused subsequently desired to appeal timely, and also notified the trial judge of appellant’s potential need for future appointment of counsel should appellant thereafter elect to exercise his appellate rights.

We further find, based on the evidence contained in the hearing transcript, that appellant knowingly, voluntarily, and intentionally failed to submit timely a notice of appeal, thereby waiving his righti thereto. We also find that the conduct of appellant in failing to appeal timely is not due to any inadequacy of counsel within the meaning of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821).

Based on the posture of the evidence, we are satisfied that thel trial court did not breach its discretion in denying appellant’s motionl for out-of-time appeal. Compare Campbell v. State, 192 Ga. App. 3161 (385 SE2d 14). I

Judgment affirmed.

Deen, P. J., and Benham, J., concur. I

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.


text:
    A89A1819.
    SUTTON et al. v. GOLDOME REALTY CREDIT CORPORATION.
    (386 SE2d 718)
    Decided September 18, 1989.
    Michael S. Sutton, pro se.

      Shapiro & Swertfeger, L. Jack Swertfeger, Jr., for appellee.
   Deen, Presiding Judge.

This appeal was docketed with this court on June 26, 1989. No brief or enumeration of errors having been timely filed, on July 26, 1989, this court ordered the appellant to file such no later than July 31,1989. That order specifically stated that failure to comply with the order shall result in dismissal of the appeal. The appellant failed to make the requisite filing of a brief and enumeration of errors as ordered, and this appeal is hereby dismissed. Rules 14 (a) and 23 of the Rules of the Court of Appeals.

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A1876.
    THE STATE v. TEAGUE et al.
    (386 SE2d 718)
   Deen, Presiding Judge.

On November 3, 1988, police officers executed a search warrant for the premises of Kelly and Donna Teague. Crack cocaine was found on the person of Kelly Teague. Curtis Thornhill was a visitor on the premises at the time of the search, and, although no contraband was found on Thornhill, the officers searched his car parked near the house and discovered more controlled substance. The Teagues and Thornhill were charged with various offenses, and moved to suppress the evidence seized during the search, on the basis that the search was illegal. The trial court granted that motion, and the State appeals. Held:

In applying for the search warrant, the affiant officer stated that within the past 7 days a confidential informant had seen a sale of crack (methamphetamine) on the Teague premises. The informant had never furnished information to law enforcement officers previously, but the affiant officer expressed his belief that the informant was truthful because of the details of the information, the truthful demeanor of the informant, and the lack of any apparent motive for lying. The “details” included a description of the location of the premises and the vehicles parked in the yard. “

Decided September 18, 1989.

Timothy G. Madison, District Attorney, for appellant.

Andrew Price, for appellees.

An affidavit submitted in support of a search warrant must “ ‘set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.’ ” State v. McKendree, 188 Ga. App. 290, 291 (372 SE2d 673) (1988). In the instant case, there was insufficient corroboration of the information to establish any reliability of either that information or the informant. The independent investigation by the affiant officer revealed only that the Teagues resided at the premises, and that the premises appeared as described by the informant; this minor corroboration did not infuse with reliability the information regarding controlled substances on the premises. If the informant lacked any apparent motive to dissemble, it could equally be said that he lacked any apparent motive to tell the truth. In short, the affidavit relates the conclusions of the affiant officer regarding the reliability of the information and informant, but fails to set forth the necessary facts for a magistrate’s independent determination. Cf. State v. McKendree, supra. Accordingly, the trial court properly granted the motion to suppress.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0873.
    GEORGE v. THE STATE.
    (386 SE2d 669)
   Beasley, Judge.

Defendant appeals his convictions of kidnapping with bodily ini jury of Ralph Riner (OCGA § 16-5-40 (b)), kidnapping of Nelda Rine| (OCGA § 16-5-40 (a)), and aggravated assault on Ralph Riner (OCGi § 16-5-21) (a) (2)). He was acquitted of the charge of aggravated as sault on Mrs. Riner and the court directed a verdict on the charge possession of less than an ounce of marijuana (OCGA § 16-13-30 (D).

Mr. Riner manufactured and sold stadium cushions, and he an| Mrs. Riner were delivering a load when their automobile develope trouble on 1-20 near Douglasville. Mr. Riner was familiar with tl road, having traveled it repeatedly. It was near midnight and they began walking toward the next exit, Lee Road. When George pulled over and asked if he could help them, Mr. Riner told him they needed a ride to the next exit where a Starvin’ Marvin truck stop was located. George exited there but proceeded to drive on by the Starvin’ Marvin, despite Mr. Riner’s statement then that “This is where we wanted to go.” George continued to drive on without telling them anything specific about his intent or destination and passed a second convenience store that was closed. He continued to go further away from 1-20 toward a rock quarry, driving erratically. He hit Mr. Riner in the face with a Pepsi bottle from which he had been drinking. Mr. Riner, startled by the blow, saw George raise the bottle in his direction again and struggled with him. The struggle caused the car to spin and stop. Mr. Riner had George pinned and yelled for his wife to get out of the back seat. George asked Mr. Riner to get out of his car, which Mr. Riner was doing. George sped away, followed by another motorist who got the license number. Mr. Riner suffered a gash on the bridge of his nose and cuts inside his nose and mouth, all of which bled copiously.

George admitted most of these facts, acknowledging that he bashed Mr. Riner in the face with the bottle. The only reason he gave was that he was drunk and crazy, having consumed 12 to 14 beers and smoked four or five marijuana joints with acquaintances that evening. He said he was a lifelong resident of the area and had intended to take the Riners to an unnamed garage on Lee Road, but merely took a wrong turn. He said the Riners did not request any specific destination. He did not stop at the Starvin’ Marvin because all they could have gotten there was gas and they needed a tow truck, although he did not explain this to them at the time.

1. Defendant contends the evidence was insufficient to support the kidnapping convictions and the trial court erred in not directing a verdict of acquittal or new trial as to these charges.

I Kidnapping, OCGA § 16-5-40, is the abduction or stealing away of a person without lawful authority or warrant and the holding of such person against his will. Defendant argues that kidnapping was Inot proven here because the Riners got in defendant’s car of their [own volition and they never specifically asked or directed him to let [them out of the car.

The victims’ getting into the car voluntarily will not protect a who at that moment or later decides not to allow them to Awtrey v. State, 175 Ga. App. 148, 150 (2) (332 SE2d 896) Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) Rubiano v. State, 147 Ga. App. 142, 143 (1) (248 SE2d 207)

Defendant’s argument that he cannot be convicted of kidnapping nless the victim verbalizes a specific request to be let go is legally indefensible. The inquiry is whether, from the evidence presented, the jury can determine beyond a reasonable doubt that the victims were being held against their will. While a firm demand by the victim to be let out of the vehicle may assist the jury in this inquiry, Awtrey, supra; Helton, supra, that does not negate the fact that the jury may also find a detention against the will of the victim based solely on circumstantial evidence. OCGA §§ 24-1-1 (4); 24-4-5; 24-4-6; see Rubiano, supra.

Defendant argues that the Riners never demanded to leave the car. Viewing the evidence in favor of the verdict, Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985), the Riners specifically told defendant where they wanted to be taken and pointed it out when they passed the Starvin’ Marvin. Assuming without deciding that verbal notice of the withdrawal of the consent to travel with defendant was required, there was sufficient evidence of it provided here. Further, it is abundantly clear that the Riners were being held against their will when George smashed Mr. Riner in the face with his Pepsi bottle. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see McGinnis v. State, 183 Ga. App. 17, 18 (1) (358 SE2d 269) (1987).

2. Defendant complains of the joinder for trial of the accusation concerning marijuana possession and the remaining charges. Two facts mitigate against this position. First, defendant in testimony freely admitted his use of marijuana. Second, the court directed a verdict for defendant on the possession count and directed the jury not to consider it. No harm has been shown and there is thus no basis for reversal. Stewart v. State, 180 Ga. App. 266, 267 (2) (349 SE2d 18) (1986).

3. Defendant argues that the convictions of aggravated assault, Count 3, and kidnapping with bodily injury, Count 1, both relating to Mr. Riner, legally merged and the aggravated assault conviction must] be reversed, which the State concedes. The conviction of Count 3 isl reversed. Brown v. State, 247 Ga. 298, 302 (9) (275 SE2d 52) (1981) (rev’d on other grounds, Wilson v. Zant, 249 Ga. 373, 380 (2) (29(1 SE2d 442) (1982)). I

4. Defendant claims error in the denial of his motion for mistrial based on his being brought into a hallway adjacent to the jury rooni the second morning of trial, in shackles. The only mention of this ixl the record is the statement of defendant’s counsel that he observeJ defendant coming into the holding cell area wearing leg irons an<| handcuffs, that this occurred in the hallway immediately adjacent tl the jury room, and the door was open so jurors “could and did see thl Defendant.” Aside from whether such a statement not made undel oath is evidence of anything, see OCGA § 24-9-25, it was answered bl the prosecutor’s like statement that a bailiff closed the door to thl jury room and that the prosecutor saw defendant removed to a far end of the hall to start removing the shackles.

Decided September 5, 1989

Rehearing denied September 19, 1989

Lane & Sanders, Thomas C. Sanders, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

Also, the burden was on the defendant to show that the jurors did see him bound in order to properly present the question of a mistrial, not merely that his attorney was of the opinion that they did. See Parker v. State, 255 Ga. 167, 169 (2) (336 SE2d 242) (1985). Defendant did not seek to have any of the jurors called as witnesses and pursued the matter no further.

Even if it had been shown that jurors did see defendant, that would not automatically have entitled him to a mistrial; that is a matter left to the court’s discretion. Curtis v. State, 182 Ga. App. 899, 900 (3) (357 SE2d 602) (1987). We find no abuse of that discretion here. Middlebrooks v. State, 184 Ga. App. 791, 792 (3) (363 SE2d 39) (1987).

Judgment affirmed in part and reversed in part.

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


author: Sognier, Judge.

text:
    A89A1502.
    CENTRAL & SOUTHERN BANK OF GEORGIA v. WILLIFORD.
    (386 SE2d 668)
   Sognier, Judge.

The Central & Southern Bank of Georgia (The Bank) brought suit against Roger D. Williford to recover a deficiency balance remaining after the Bank repossessed and sold a customized van purchased by Williford from Ted Wallace Chevrolet-Olds, Inc. (Wallace) and financed by the Bank. The action was tried before a jury, and after the close of the Bank’s evidence the trial court granted Wil-liford’s motion for a directed verdict on the ground that appellant had failed to comply in timely fashion with the notice provisions of OCGA § 10-1-36. The Bank appeals.

The record reveals that on October 12, 1987, appellee purchased the van from Wallace and executed a conditional sales contract, which was assigned to appellant. The contract provided that appellee was to make monthly payments of $482 to the Bank beginning November 15, 1987. Shortly thereafter appellee began having problems 1th water leaking into the van, and several attempts were made by Wallace to correct the problem, apparently not to appellee’s satisfaction. On December 23, 1987, appellee, through his attorney, notified Wallace in writing that he had returned the van to Wallace’s lot and that he was revoking his acceptance of the van pursuant to OCGA § 11-2-608 on the ground that it did not conform to the contract because of substantial defects. A copy of the letter was mailed to the Bank. At that time, appellee had made both the November and December payments. Wallace thereafter made further efforts to correct the defect and notified appellee by letter dated January 22, 1988 that the van had been repaired and he could pick it up. No reply was made by appellee, and on January 26, 1988, after appellee had failed to make the January payment pursuant to the contract, appellant repossessed the van from Wallace’s lot, notifying appellee on the same day by certified letter of its intent to seek a deficiency.

Appellant contends the trial court erred by granting appellee’s motion for a directed verdict because notice was timely given pursuant to OCGA § 10-1-36. We agree and reverse.

Appellant’s right to self-help repossession derived from OCGA § 11-9-503, which provides that “[u]nless otherwise agreed a secured party has on default the right to take possession of the collateral.” (Emphasis supplied.) OCGA § 10-1-36 provides, in pertinent part, that “[w]hen any motor vehicle has been repossessed after default in accordance with [OCGA § 11-9-501 et seq.], the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he forwards by registered or certified! mail to . . . the buyer ... a notice of the seller’s or holder’s intention] to pursue a deficiency claim against the buyer.” (Emphasis supplied.)! Appellee was not in default on the contract on December 23, 1987.1 when he left the van at Wallace’s lot. Thus, appellant had no right! under the provisions of OCGA § 11-9-503, to repossess the van at thal time. On January 16, 1988, when appellee failed to make his Januarj payment on time, appellant acquired its right to repossess the vehiclJ pursuant to OCGA § 11-9-503. It exercised this right on January 26l 1988, and the notice required by OCGA § 10-1-36 was sent in timelj fashion on that date. Nothing in Barnett v. Trussell Ford, 129 Gal App. 176 (198 SE2d 903) (1973), relied on by appellee, requires a difl ferent result. The Barnett court held only that when the debtor is in default and the right to repossess exists, no distinction should bl made between repossession and voluntary surrender with regard tl triggering the running of the ten-day period within which the rJ quired notice must be sent. I

Accordingly, as the notice required by OCGA § 10-1-36 wsH timely sent, we hold the trial court erred by granting appellee’s m<B tion for a directed verdict. I

Judgment reversed.

Banke, P. J., and Pope, J., concur.

Decided September 6, 1989

Rehearing denied September 19, 1989

J. David McRee, for appellant.

James W. Smith, for appellee.


text:
    A89A1292.
    DIXON v. THE STATE.
    (386 SE2d 719)
   McMurray, Presiding Judge.

Defendant Dixon appeals his conviction of the offense of unauthorized possession of a weapon by an inmate (OCGA § 42-5-63). The sole enumeration of error raises the sufficiency of the evidence. Held:

The State’s evidence is that on September 22, 1988, defendant was an inmate at the Lee County Correctional Institution. On that date defendant informed a rehabilitation counselor that he had a weapon on his person. The rehabilitation counselor summoned a correctional officer who searched defendant and found on his person a “shank” or improvised weapon, in this instance a large (construction) nail with an ace bandage wrapped around it and tied, with what appeared to be fishing line, so as to form a handle. This incident occurred at approximately 1:00 p.m. Defendant testified that he had found the nail that morning at approximately 10:30 a.m. while doing certain assigned maintenance work involving cleaning a pump house. According to defendant, he had put the nail in his pocket where it was later found, while other debris accumulated in the cleanup of the pump house had been placed in a wheelbarrow and emptied into the trash by other inmates.

Defendant contends that he was authorized to possess the nail by his instructions to pick up and dispose of debris in the pump house, and that separation of the nail from the innocuous or harmless debris was appropriate to prevent it being diverted for use for an illegal purpose. While defendant argues that upon completion of the cleanup he went to the rehabilitation counselor to relinquish the nail, the interval of time between defendant’s acquisition and relinquishment of the nail is sufficiently lengthy to authorize a jury to conclude that defendant retained possession of the nail beyond the period of any inferred authority arising from defendant’s assignment to the cleanup task. In other words, the jury was authorized to find that for some brief period of time defendant retained possession of the “shank” without authorization of the proper authorities. The evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the oifense of unauthorized possession of a weapon by an inmate. Jackson v. Virginia, 443 U. S. 307, (99 SC 2781, 61 LE2d 560); Methvin v. State, 189 Ga. App. 906 (1), 908 (377 SE2d 735).

Decided September 19, 1989.

Mark G. Pitts, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

The defendant argues that “the evidence was close enough as to [his] innocence . . . that the Trial Court should have exercised its discretion given to it by O.C.G.A. Section 5-5-21 and granted [him] a new trial.” “ ‘This, however, must be addressed to the trial judge . . . The law gives to [the trial judge] alone the authority to grant a new trial for such a reason. This court has no such power.’ Josey v. State, 197 Ga. 82, 93 (28 SE2d 290) (1943).” Wright v. State, 173 Ga. App. 408 (326 SE2d 584).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1508.
    NEWSOME v. THE STATE.
    (386 SE2d 887)
   Birdsong, Judge.

Appellant Johnny J. Newsome appeals his conviction of three counts of theft by taking and one count of burglary. Appellant contends the trial court erred in failing to dismiss this case on the grounds that appellant was arrested without color of a warrant, and by admitting evidence unlawfully obtained. Held:

1. Appellant’s assertion that evidence was erroneously admitted, because it was obtained as a result of an illegal search and seizure! conducted without warrant, is without merit. Special Agent Dudley of | the GBI testified at trial that appellant was informed he was suspected of theft of John Maloy’s 35 h.p. boat motor, advised of hisl Miranda rights, and then was asked for permission to search hisl house, and that appellant replied that “we were welcome to search hisl house.” Dudley had identified himself, showed appellant his creden-j tials, and ascertained appellant’s identity before requesting permission to search. The police had arrived at appellant’s home about 5:0( p.m., but appellant who is age 37, his co-accomplice Andy Mitchellj and their two wives did not arrive until about 7:30 or 8:00 p.m. whe: it was dark. Special Agent Dudley denied threatening appellant’s wifi in any manner, but stated that he did inform her that if she made an; false statements she would be charged with making “a false statemen] to [the] police.” He never threatened to put her in jail.

Sheriff Walker also testified at trial and corroborated that Dud| ley had asked appellant’s permission to search, and that appellant r< plied “[s]ure, go ahead and search my house, I don’t have anything to hide,” or words to that effect. Walker also testified that appellant was “read his rights in his home while he was allowing us to search his home.” Walker did not hear Dudley intimidate appellant’s wife, and believes that Dudley acted in a professional manner.

“ ‘ “Consent searches are valid (cit.) but where the (S)tate relies upon consent, the burden is upon (it) to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. (Cit.) Voluntariness must be determined from all of the circumstances.” ’ ” Lombardo v. State, 187 Ga. App. 440 (1) (370 SE2d 503). In considering the legality of a search, this appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784). Moreover, a valid consent to search eliminates the need for either probable cause or a search warrant. Hunter v. State, 190 Ga. App. 52 (1) (378 SE2d 338); Lombardo, supra at 441 (3).

We conclude in view of the totality of the circumstances that appellant freely and voluntarily consented to the search. Moreover, we find that appellant’s motion to dismiss was, as to those portions pertaining to an alleged illegal search and seizure, in effect a motion to suppress. As such, this motion failed to comply with the requirements of OCGA § 17-5-30 that motions to suppress shall be in writing and state facts showing that the search and seizure were unlawful. See generally Boatright v. State, 192 Ga. App. 112 (8) (385 SE2d 298).

2. Appellant’s assertion that he was illegally arrested, thereby necessitating dismissal of this case, also is without merit.

An arrest without warrant, under both the United States Constitution, Articles IV and XIV, and the Constitution of Georgia of 1983, Art. I, Sec. I, Par. XIII, “ ‘is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.’ ” Wright v. State, 189 Ga. App. 441, 443 (375 SE2d 895); accord Burroughs v. State, 190 Ga. App. 467 (2) (a) (379 SE2d 175).

The trial transcript establishes that the police had a description of a vehicle believed to have been involved in various thefts within the county. According to information in their possession, the police were looking for a late model Chevrolet truck, with a cargo bed, and the back of the cab painted white. This truck was believed to be equipped with worn regular street front tires and worn chunky mudgrip or sand rear tires. Three somewhat similar older trucks were known to be operating in the county, but they did not accurately fit this description. An all-points bulletin was sent to surrounding counties, and one county sheriff’s department responded with a lead that appellant had such a vehicle.

Decided September 19, 1989.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

The police were waiting at appellant’s house when he, his co-accomplice, and their wives drove up in the suspected vehicle. Sheriff Walker, who was familiar with the tire prints found at the scene of the three thefts, personally checked the tires on appellant’s vehicle and determined that the tires thereon matched the tracks he had seen at the three theft locations. Appellant gave a valid consent to search to the police. A search of appellant’s premises was conducted, and a quantity of meat was found. One package of the meat, containing ribs, had been marked with a magic marker with the words “for barbecue.” The police ascertained that similar meat had been stolen from a Mr. Maloy on the day his boat motor was stolen; they then placed appellant under arrest.

At the time of appellant’s arrest, the police had evidence that appellant was driving a truck matching the description of the vehicle involved in the thefts, the vehicle was determined to have the same tires treads as those treadmarks found at the crime scenes, and meat was found in appellant’s house which was ascertained to have been similar to that stolen from a Mr. Maloy. This evidence, none of which was obtained as a result of an illegal search and seizure, provided the police with reasonably trustworthy information sufficient to warrant a prudent man to believe that appellant had committed a crime of theft, and thus provided the police with probable cause for the arrest of appellant. Compare Tomlinson v. State, 188 Ga. App. 213 (373 SE2d 25).

3. Reviewing the evidence of record in a light most favorable to the verdict, we find it is sufficient to enable any rational trier of fact to find that appellant was guilty of the offenses of which he had been convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1624.
    THE STATE v. WRIGHT.
    (386 SE2d 720)
   Banke, Presiding Judge.

Defendant Wright was convicted of trafficking in cocaine based on an indictment charging that she had knowingly brought into this state more than 400 grams of cocaine. She was sentenced by the trial court to 30 years’ imprisonment and to payment of a $500,000 fine, but that sentence was later reduced by the Superior Court Sentence Review Panel to 25 years, the last five of which were probated. Before us now is a direct appeal by the state from that order. Held:

Decided September 19, 1989.

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

Pamela Wright, pro se.

Upon application by a criminal defendant, the Superior Court Sentence Review Panel has the authority under OCGA § 17-10-6 (c) to issue an order reducing a sentence imposed by the trial court. The Code section provides that “[t]he reduction of a sentence or the refusal to reduce a sentence by the panel shall not be reviewablé.” OCGA § 17-10-6 (d). However, based on our prior holdings that the appellate courts of this state may entertain an appeal by the state from a criminal sentence which is absolutely void due to some legal prohibition, see State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978); State v. Shuman, 161 Ga. App. 304, 306 (287 SE2d 757) (1982), the state contends that the present appeal is nevertheless authorized because OCGA § 16-13-31 (a) (1) (C) mandates that a person convicted of trafficking in 400 grams or more of cocaine “shall be sentenced to a mandatory minimum term of imprisonment of 25 years . . .,” and because OCGA § 16-13-31 (e) (1) specifies that the sentence imposed under OCGA § 16-13-31 “shall not be suspended, probated, deferred, or withheld prior to serving the mandatory minimum term of imprisonment prescribed by this Code section.” See Moran v. State, 170 Ga. App. 837 (3) (318 SE2d 716) (1984).

While we agree that the sentence imposed by the panel is less than the minimum required by law under the circumstances, we must conclude that the state’s appeal presents nothing for review, inasmuch as the notice of appeal seeks to challenge no ruling or action on the part of the superior court, which is the tribunal in which the notice of appeal was filed. We suggest to the state that the proper method of challenging the panel’s action would be by application for a writ of mandamus to compel the panel to impose a sentence in accordance with the statutory mandate. See generally Art. VI, Sec. I, Par. IV of the Georgia Constitution of 1983; OCGA § 9-6-20.

Appeal dismissed.

Sognier and Pope, JJ., concur.


text:
    A89A1706.
    ROSS v. THE STATE.
    (386 SE2d 721)
   Banke, Presiding Judge.

Ross appeals his conviction of driving while under the influence of alcohol. See generally OCGA §§ 40-6-391 (a) (1) and (4).

The arresting officer testified that he stopped the appellant’s vehicle because it passed his marked patrol car doing 70 miles per hour in a 55-mile-per-hour zone and because it was drifting outside its lane of traffic. Upon approaching the vehicle and asking the appellant to produce his driver’s license, the officer detected a strong smell of alcohol emanating from inside the vehicle and observed that the appellant’s eyes had a glazed appearance. The officer thereafter asked the appellant to perform certain field sobriety test exercises. Based on the manner in which the appellant performed these exercises, on the slightly slurred nature of his speech, and on his volunteered admission that he had consumed a “few drinks,” the officer thereupon arrested the appellant for driving under the influence of alcohol. A subsequently administered intoximeter test revealed the appellant’s blood-alcohol level to be .13 grams percent. Held:

1. Citing Frye v. United States, 293 F 1013 (D.C. Cir. 1923), the appellant contends that the trial court erred in admitting the officer’s testimony concerning the appellant’s performance on one of the field sobriety tests — specifically, the horizontal gaze nystagmus evaluation (HGN) — because that test was not shown to be an accepted scientific procedure. Initially, we observe that the Frye rule of “counting heads” in the scientific community to determine the validity of a scientific procedure was rejected in Harper v. State, 249 Ga. 519 (1) (292 SE2d 389) (1982), wherein the Georgia Supreme Court held that the appropriate approach is for the trial court to decide whether the procedure in question has reached a stage of verifiable certainty. In any event, it is evident that the HGN evaluation was only one of a series of observations which caused the officer to form the belief that the appellant was under the influence of alcohol. In the context of the overwhelming evidence of guilt in this case, the admission of the testimony in question must be considered harmless.

2. The appellant contends that the trial court erred in admitting the results of his intoximeter test for the reason that the state failed to produce certain computer data upon which the test was based in compliance with his notice to produce filed pursuant to OCGA § 24-10-26. This Code section applies only to material which is “ ‘in the possession, custody or control of another party. . . .’’’It has been previously held that materials of the type at issue here are “not the types of items reasonably expected to be found in the ‘custody’ of the solicitor preparing the case against appellant. . . .” Fletcher v. State 157 Ga. App. 707, (3) (278 SE2d 444) (1981). Accord Calloway v. State, 191 Ga. App. 383 (381 SE2d 598) (1989). As there was no showing that the requested material was in fact in the possession of the state’s attorney, it follows that this enumeration of error is without merit. See also Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974).

Decided September 19, 1989.

Turner & Lennard, Donald C. Turner, for appellant.

Ralph T. Bowden, Jr., Solicitor, Neal R. Bevans, Ann M. El-more, Assistant Solicitors, for appellee.

3. The appellant contends that the trial court erred in failing to give his requested jury charge on impeachment. Although the trial court did not charge in the language requested by the appellant, the charge given covered substantially the same principles. Consequently, this enumeration of error is also without merit. See Kelly v. State, 241 Ga. 190, 191-192 (243 SE2d 857) (1978).

4. The appellant contends that the trial court erred in refusing to instruct the jury that if breath test results are subject to a margin of error, then the defendant must be given the benefit of that margin of error. The court correctly and adequately charged the jury on the burden of proof, the presumption of innocence, and the presumptions created by OCGA § 40-6-392 (b). Assuming arguendo that the failure to give the requested charge was error, “we find that it is highly probable that any error in the charge did not contribute to the judgment in this case, and thus any such error was harmless. [Cit.]” Barton v. State, 188 Ga. App. 237, 238 (372 SE2d 647) (1988).

Judgment affirmed.

Sognier and Pope, JJ., concur.