author: Sognier, Judge.

text:
    75425.
    WGNX, INC. v. GORHAM.
    (364 SE2d 621)
   Sognier, Judge.

WGNX, Inc., doing business as WGNX-TV, Channel 46 in Atlanta, brought suit on account against Leo H. Gorham, d/b/a South-side Flea Market, to recover payment for television advertising services. The trial court granted Gorham’s motion for a directed verdict, and WGNX appeals.

The record reveals the trial court granted appellee’s motion for a directed verdict based on its finding that appellant had failed to prove the amount of the open account.

1. Appellant contends the trial court erred by refusing to allow appellant’s credit and collections manager, Lillie Moore, to testify as to the amount owed by appellee. On direct examination during appellant’s case-in-chief, Moore testified to her efforts at collecting the amounts owed by appellee. Moore was asked by appellant’s counsel: “How much was the amount you were trying to collect?” Moore’s response to this question was prevented by the trial court, which stated that “[t]he highest and best evidence would be the statement of account.” We agree with appellant that this ruling was erroneous, and requires reversal. “The mere fact that a written record has been made does not make the writing the best evidence of the matter recorded.” Green, Ga. Law of Evidence (2nd ed.), § 101. “In discussing the admissibility of oral testimony regarding written books of account, this court has held: ‘As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is as to those facts primary evidence, and is admissible, whether or not the books themselves are put in evidence.’ [Cits.]” Klem v. Southeast Ceramics, 142 Ga. App. 610, 611 (236 SE2d 694) (1977). Moore testified that she was in charge of collecting all monies owed to the station and thus would have been testifying from her own knowledge had she been allowed to answer the question. Her testimony was, therefore, primary evidence. The fact that she prepared written statements based on that same knowledge would not confer on the statements the status of “best” evidence. “Had [Moore’s testimony] been [allowed] in the instant case, it would have established a prima facie case for appellant by proving the fact of the account and the amount owing and it then would have been incumbent on the [appellee] to come forward with any defense [he] wished to assert. [Cit.] ‘Where the trial court excludes admissible and material evidence offered on behalf of plaintiff, it is error to direct a verdict against [it]. [Cits.]’ [Cit.]” Wickes Lumber v. Energy Efficient Homes, 157 Ga. App. 303-304 (277 SE2d 298) (1981). The trial court erred by excluding Moore’s testimony as to the amount of the account and by directing a verdict against appellant. Therefore, we reverse the verdict directed against appellant by the trial court.

2. Appellant also alleges the trial court erred by refusing to admit two documents into evidence under the business records exception to the hearsay rule. See OCGA § 24-3-14. Before such a writing or record is admissible, a foundation must be laid which “ ‘should include identification of the writing or record by a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of business and that it was the regular course of the business to make such memorandum or record at the time of the event of within a reasonable time thereafter.’ [Cits.]” Growth Properties of Fla. v. Wallace, 168 Ga. App. 893, 898 (310 SE2d 715) (1983).

(a) This foundation was properly laid with respect to plaintiff’s exhibit no. 3, a computer printout of a list of the dates on which the commercials prepared by appellant were to be aired and the cost of each airing. Computer printouts are clearly admissible under OCGA § 24-3-14. Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 363-365 (3) (223 SE2d 757) (1976). Robert Tobey, an account executive with appellant, testified that the document was prepared in the regular course of appellant’s business. Tobey further testified that when orders were written the data was entered into the computer and the computer printed out documents such as plaintiffs exhibit no. 3 on a daily basis. We find that this testimony satisfies the requirements of the statute for a proper foundation and the trial court erred by refusing to allow this document in evidence. See generally Wickes Lumber, supra at 303-304 (1).

Decided January 5, 1988.

Lawrence S. Burnat, Mark W. Forsling, for appellant.

Joseph R. Baker, for appellee.

(b) Similarly, Moore testified that plaintiffs exhibit no. 4, the statement of account, was prepared by keying information into the computer as checks came in, and it was in the regular course of appellant’s business to prepare such statements of account on a monthly basis. We do not agree with the trial court that this was insufficient as a foundation for the admission of the document as a business record, OCGA § 24-3-14; see generally Minnich v. First Nat. Bank, 152 Ga. App. 833 (264 SE2d 287) (1979), and it was thus error to exclude it.

3. Appellant’s remaining enumeration of error is rendered moot by our determination that the trial court’s grant of appellee’s motion for a directed verdict must be reversed.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    72605.
    GORDON v. THE STATE.
    (365 SE2d 287)
   Beasley, Judge.

On certiorari our decision affirming the trial court in Gordon v. State, 181 Ga. App. 391 (352 SE2d 582) (1986) was affirmed in part and reversed in part in Gordon v. State, 257 Ga. 335 (359 SE2d 634) (1987). Accordingly, our decision in Division 1 is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, and Benham, JJ., concur.

Decided January 6, 1988.

Robert J. Reed, Albert M. Pearson III, for appellant.

Robert E. Wilson, District Attorney, Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, George P. Shingler, Assistant Attorney General, for appellee.


text:
    73231.
    HENDERSON v. THE STATE.
    (365 SE2d 288)
    Decided January 6, 1988.

      Billy L. Spruell, for appellant.

      Robert E. Wilson, District Attorney, Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, George P. Shingler, Assistant Attorney General, for appellee.
   Beasley, Judge.

On certiorari our decision affirming the trial court in Henderson v. State, 182 Ga. App. 513 (356 SE2d 241) (1987) was affirmed in part and reversed in part in Henderson v. State, 257 Ga. 618 (362 SE2d 346) (1987). Accordingly, our decision in Divisions 4 and 6 is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part, reversed in part, and case remanded.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur.


author: Carley, Judge.

text:
    75219.
    ROBINSON et al. v. KEMP MOTOR SALES, INC.
    (364 SE2d 623)
   Carley, Judge.

On April 30, 1986, appellee-plaintiff initiated proceedings for the judicial confirmation of the sale of realty. See OCGA § 44-14-161. On July 22, 1986, after conducting a hearing, the trial court entered an order which confirmed the sale. Appellant-defendants filed no timely notice of appeal from this order. On August 25, 1986, the trial court entered another “judgment” in the confirmation proceedings, awarding appellee a deficiency judgment against appellants in a specified amount, attorney fees, and interest. The entry of this deficiency “judgment” in the confirmation proceedings was clearly erroneous. See generally Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490 (231 SE2d 491) (1976); Scroggins v. Harper, 138 Ga. App. 783 (1) (227 SE2d 513) (1976). However within thirty days after the entry of this erroneous judgment, appellants did not file a notice of appeal. Then, on December 16,1986, the trial court entered yet another order in the confirmation proceedings, this time purporting to make additional findings of facts as to the existence of its personal jurisdiction over appellants for the entry of a deficiency judgment against them. It is from this December 16, 1986 order that appellants bring this appeal.

The December 1986 order from which appellants appeal purports to amend the final deficiency “judgment” that had been entered in August of 1986 during a previous term of court. “ ‘After the expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits. A decree, during the term at which it was rendered, is said to be in the breast of the judge; after it is over, it is upon the roll.’ [Cit.]” City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971). “It follows that the trial court had no jurisdiction of this case at the subsequent term of court after its final judgment had been entered. Its order on that date was void.” Redmond v. Walters, 228 Ga. 417 (2) (186 SE2d 93) (1971). Accordingly, the void order of December 16, 1986 must be reversed.

However, appellants’ filing of a timely notice of appeal from the trial court’s void order of December 1986 is not sufficient to confer jurisdiction upon this court so as to reverse the trial court’s erroneous order of August 25, 1986. The subsequent entry by the trial court of an amendment to one of its previously entered and otherwise final judgments is not included among those rulings which will serve to recommence the statutorily mandated 30-day period within which a notice of appeal from the final judgment must be filed. See OCGA § 5-6-38. Appellants did not file a notice of appeal within 30 days after the entry of the erroneous August 1986 “judgment” as required by OCGA § 5-6-38 (a). “The fact that [appellants claim] to have had no notice of the entry of judgment until after 30 days [in which to file a notice of appeal] had run [did] not extend the time for filing a notice of appeal.” Atlantic-Canadian Corp. v. Hammer, Siler, George Assoc., Inc., 167 Ga. App. 257 (306 SE2d 22) (1983). If appellants received no notice of the August 1986 “judgment,” they should file a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d). “fWjhere no notice is sent by the trial court or by the clerk to the losing party, ... an action may be brought under [OCGA § 9-11-60 (d)] to set aside the earlier judgment; and upon a finding that notice was not provided as required by [OCGA § 15-6-21 (c)], the motion to set aside may be granted, the judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry.” Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).

Decided January 6, 1988.

Frank G. Smith, for appellants.

T. Peter O’Callaghan, Jr., for appellee.

Since appellants’ only notice of appeal was filed within 30 days after entry of the order of December 1986, this court has jurisdiction in this appeal only to reverse that order.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Birdsong, Chief Judge.

text:
    75318.
    CREWS v. THE STATE.
    (364 SE2d 625)
   Birdsong, Chief Judge.

Appellant Russell Crews was convicted of burglary. He has enumerated three errors in his appeal. Held:

1. Appellant first asserts that the trial court erred in overruling his motion for mistrial based upon the State’s alluding to a prior burglary conviction of the appellant. His second enumerated error is that the trial court erred in admitting, over objection, evidence of his prior burglary conviction, which allowed this evidence to be considered by the jury. Neither of these two enumerated errors has merit.

When a defendant testifies in his own behalf at trial, “no evidence of general bad character or prior convictions shall be admissible -unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20 (b). However, “where a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20 (b).” Phillips v. State, 254 Ga. 370, 372 (329 SE2d 475); Long v. State, 181 Ga. App. 830 (354 SE2d 190). At trial, appellant attempted to defend himself against the burglary charge by admitting only to the knowing receipt of stolen property. See OCGA § 16-8-7. This selective disclosure of criminal activity is the very type of trial conduct to which Phillips was intended to apply. Thus, we find that no error occurred in the admission of the evidence, and that the trial court did not abuse its discretion in denying the motion for mistrial.

2. Appellant’s third enumerated error is that the trial court erred in permitting the State, over objection, to cross-examine appellant regarding a burglary (hereinafter referred to as the Sterner burglary) for which he had been indicted, but not tried and convicted. In response, the appellee, citing Green v. State, 172 Ga. 635 (158 SE 285) and Frank v. State, 141 Ga. 243 (80 SE 1016), asserts that this evidence of other acts of misconduct not charged in the case at bar was admissible “for the purpose of showing motive, scheme or plan, intent, malice, absence of mistake or accident.”

Decided January 6, 1988.

Lawrence L. Aiken, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, Eric D. Hearn, Assistant District Attorneys, for appellee.

It is well recognized that “[t]o render evidence of extrinsic offenses admissible for any of [the above] purposes, the State must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter.” (Emphasis supplied.) Williams v. State, 251 Ga. 749, 755 (312 SE2d 40); State v. Johnson, 246 Ga. 654 (272 SE2d 321). After examining the transcript in its entirety, we are satisfied that a sufficient foundation, as required by Williams and Johnson, was laid for the admission of the evidence regarding the Sterner burglary. The trial court could conclude from appellant’s admissions to being present at the Sterner burglary scene, the sequence of events at that residence, and the testimony elicited by appellant’s counsel that a prosecution witness and another individual had purchased stolen merchandise from the appellant on several occasions, that there was evidence establishing appellant as the perpetrator of the Sterner burglary. Further, as it was shown that appellant became the suspect in this case based on information obtained by the police during their investigation of the Sterner burglary, a sufficient logical connection between the two offenses has been established. Accordingly we find this enumerated error to be without merit.

Assuming, however, that error had occurred in the admission of this evidence, we conclude that it was harmless because, based on the strong posture of the circumstantial evidence establishing appellant’s guilt (including the properly admitted evidence óf his bad character as evidenced by his prior conviction for burglary), it is “highly probable” that the testimony regarding the Sterner burglary did not contribute to the jury’s verdict. See generally Coleman v. State, 257 Ga. 313 (357 SE2d 566), citing Johnson v. State, 238 Ga. 59 (230 SE2d 869).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75319.
    ODOM v. THE STATE.
    (364 SE2d 626)
   Carley, Judge.

Appellant was tried before a jury on an accusation charging him with driving under the influence of alcohol in violation of OCGA § 40-6-391. The jury returned a verdict of guilty. Appellant appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.

1. Several of appellant’s enumerations relate to the trial court’s admission into evidence of the results of a State-administered test to determine appellant’s blood alcohol level. The facts, insofar as they are relevant to this issue, are as follows: Appellant was stopped when police officers observed him driving in an erratic manner. The arresting officers testified that, at the time of the stop, appellant smelled of alcohol, exhibited slurred speech, and had difficulty standing. When the results of a field sobriety test proved positive for alcohol, appellant was placed under arrest. It is uncontested that, at the time of his arrest, appellant was informed of his rights under our “Implied Consent Statute” and that the officer requested that appellant submit to a State-administered chemical analysis of his breath. Appellant did not refuse to submit to the State-administered test, but did state that he wanted to exercise his right to an independent blood test. The officer then requested that appellant submit to a State-administered test of his blood. Again, appellant did not refuse. Appellant was then taken to the police station where an unsuccessful attempt was made to administer an intoximetric examination of his breath. The failure of this test to yield any result was a direct consequence of appellant’s inability or refusal to provide a breath sample. Appellant was then taken to a local hospital where a nurse drew separate blood samples for the State and appellant. The State’s sample was tested at the State Crime Laboratory and was determined to contain .23 percent alcohol by weight.

Appellant contends that the results of the State-administered blood test were inadmissible because there was a failure of proof with regard to his consent to that test. However, the State did not have to show appellant’s consent. The State had only to show that, after being advised of his rights pursuant to OCGA § 40-6-392, appellant did not refuse to submit to the State-administered test. “In Georgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.j Our ‘Implied Consent Statute’ (OCGA § 40-5-55) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test.” Allen v. State, 254 Ga. 433, 434 (1a) (330 SE2d 588) (1985). It is undisputed that, after being informed of his rights, appellant did not revoke his implied consent to submission to a State-administered test because he did not refuse the arresting officer’s request for such and, in fact, the evidence clearly shows that appellant also elected to exercise his right to undergo independent testing. The evidence shows that, after being advised of his rights under our Implied Consent Statute, appellant did not refuse to submit to the “test or tests [which were] administered at the request, of a law enforcement officer having reasonable grounds to believe that [appellant had] been driving or was in actual physical control of a motor vehicle ... in violation of Code Section 40-6-391. . . .” OCGA § 40-5-55 (a). Evidence of the result of the State-administered test was correctly allowed into evidence.

Decided January 6, 1988.

John H. Calhoun, Jr., for appellant.

David B. Pittman, Solicitor, for appellee.

2. Appellant enumerates the general grounds. Having reviewed the entire record, we find that any rational trior of fact could reasonably have found from the evidence that was produced by the State proof of appellant’s guilt, beyond a reasonable doubt, of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant’s remaining enumerations have been considered but found to be without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75356.
    GRANT v. THE STATE.
    (364 SE2d 628)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with burglary and rape. The jury returned verdicts of guilty as to both counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the guilty verdicts.

1. Urging the improper interjection of his character into issue, appellant objected to a portion of the State’s closing argument and moved for a mistrial. Outside of the presence of the jury, the trial court heard the arguments of counsel and concluded that it was “very doubtful” that the jury would give the argument of the State the prejudicial interpretation that the counsel for appellant suggested. The trial court denied the motion for mistrial but, upon the return of the jury to the courtroom, it did give curative instructions. Thereafter, appellant renewed his motion for mistrial and, on appeal, he enumerates as error the trial court’s failure to grant that motion.

“The decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial judge. [OCGA § 17-8-75]. His decision will not be overturned on appeal absent a manifest abuse of discretion. [Cit.]” Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982). See also Johnson v. State, 142 Ga. App. 526 (1) (236 SE2d 493) (1977). “ ‘(T)his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. [Cits.]’ [Cit.]” Walker v. State, 132 Ga. App. 274, 275 (3) (208 SE2d 5) (1974). The comment of the attorney for the State in his closing argument in the present case “was not so prejudicial that a mistrial was required . . . [and] the trial court did not abuse its discretion in not ordering a mistrial.” Ward v. State, 252 Ga. 85, 89 (2) (311 SE2d 449) (1984). See also Brown v. State, 57 Ga. App. 864 (197 SE 82) (1938).

2. The trial court conducted a hearing, outside the presence of the jury, as to the pretrial process which had resulted in the victim’s identification of appellant. The trial court’s failure to allow appellant to make an offer of proof during the course of the hearing is enumerated as error. The record shows that the trial court, indicating the need to hear other evidence as to a preliminary matter, did not permit appellant to make an offer of proof at the precise moment that he requested the opportunity to do so. However, during the subsequent course of the hearing, appellant called witnesses, cross-examined the State’s witnesses and presented legal arguments. At the conclusion of the hearing and before rendering its ruling on the admissibility of the identification evidence, the trial court asked whether there was “anything else from either side?” Appellant responded: “No, sir.” Under these circumstances, appellant has shown neither error nor harm. All that has been shown is that the trial court correctly refused to allow appellant to control the sequence of inquiry at an evidentiary hearing outside the presence of the jury. This enumeration is without merit.

3. The trial court’s admission of evidence relevant to the victim’s pre-trial identification of appellant is enumerated as error. As indicated in Division 2, the trial court conducted a hearing before admitting the challenged evidence. After the hearing the trial court concluded that “the identification procedure used was not defective in any of the grounds alleged in the defense motion or for any other grounds.” Our review of the record clearly shows that the trial court correctly held that the victim’s pre-trial identification of appellant was not unreliable under the totality of the circumstances. See generally Wright v. State, 255 Ga. 109, 111 (3) (335 SE2d 857) (1985); Hamilton v. State, 255 Ga. 468, 469 (1) (339 SE2d 707) (1986).

4. Appellant enumerates the general grounds. After a careful review of the record as a whole, we find that a rational trior of fact could reasonably have found, from the evidence produced at trial, proof of appellant’s guilt of burglary and rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 6, 1988.

C. Michael Walker, for appellant.

John M. Ott, District Attorney, for appellee.

5. Following the charge to the jury, the trial court asked if either side had any objection. Counsel for the appellant responded, “None from the defense.” “Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge. [Cit.]” Rivers v. State, 250 Ga. 288, 309 (7) (298 SE2d 10) (1982). Accordingly, appellant’s enumeration which asserts error in the trial court’s charge will not be considered.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75480.
    CHRISTOPHER et al. v. GRIFFIN.
    (364 SE2d 892)
   Carley, Judge.

Appellee-plaintiff contracted with appellant-defendants to perform certain repair and paint work. According to appellee, he performed all such contract work as it was possible for him to accomplish until further action was taken by appellants. When appellants refused appellee’s demand to be paid under the contract, appellee filed suit alleging breach of contract. During the course of the jury trial, appellee proved the contract and offered evidence as to his performance thereunder. Appellants denied neither the existence nor the terms of the contract, but offered evidence that appellee had failed to perform the contract in a satisfactory manner. Appellants also offered evidence of the additional expenses that they had incurred in connection with the satisfactory completion of such work as appellee had otherwise contracted to perform. At the close of all of the evidence, the trial court granted appellee’s motion for a directed verdict in the amount of the contract price less the amount of the payments previously made to appellee under the contract and less the amount that appellants showed they had incurred as the cost of having the job completed to their satisfaction. Appellants appeal from the judgment entered on the directed verdict.

Appellants’ sole enumeration is that the trial court erred in granting appellee’s motion for directed verdict, in that there existed “a material conflict in the evidence presented to the court.” “[W]here, as here, the defense to a suit on contract is a plea of failure of consideration and where the evidence authorizes the conclusion that the failure is not total but partial only, the burden devolves upon the defendant to prove the dollar amount of his damages or suffer judgment against him. [Cit.]” Camelot Club Condominium Assn. v. Metro Lawns, 161 Ga. App. 574, 575-576 (3) (288 SE2d 325) (1982). Appellants’ evidence showed, at most, a partial failure of consideration. Based upon all of the evidence presented, the damages that were awarded to appellee on the directed verdict represented the minimum recovery that the jury would have been authorized to return for him. This is so because that award represents the trial court’s deduction from the agreed upon contract price of the maximum dollar amount that the jury would have been authorized to find that appellee’s partial failure of consideration had damaged appellants. Accordingly, if the trial court erred in granting appellee’s motion for directed verdict, it was error which was beneficial to appellants. Under the evidence, the jury would have been authorized to return a greater award in favor of appellee if it disbelieved appellants’ partial failure of consideration defense, but the jury would not have been authorized to return a lesser award in his favor if it accepted appellants’ partial failure of consideration defense in its entirety. Since the error, if any, was beneficial to appellants, the judgment must be affirmed.

Decided January 6, 1988.

F. Carter Tate, for appellants.

James C. Warnés II, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    75584.
    THOMAS v. THE STATE.
    (364 SE2d 630)
   Benham, Judge.

After being stopped by a Department of Natural Resources ranger, appellant was cited by the ranger for three hunting law violations. He was also cited for driving under the influence of alcohol, that citation being issued by a deputy sheriff called to the scene by the ranger. All the citations were made returnable to probate court, with a hearing scheduled for December 12, 1986, on the hunting violations, and a hearing scheduled on December 19, 1986, on the DUI charge. On December 12, appellant entered a plea of not guilty to the hunting violation charges, and a trial commenced before the probate court. During that trial, the probate judge became aware of the DUI charge and continued the trial over appellant’s objection for the purpose of consolidating the charges. When the hearing recommenced, the probate court announced that it had concluded, after conducting research on this case, that the entry of pleas of not guilty to the hunting violation charges had stripped it of jurisdiction. The cases were bound over to superior court, where appellant filed a plea of former jeopardy to the DUI charge. The denial of that plea is the subject of this appeal.

Decided January 6, 1988.

Barry G. Irwin, for appellant.

John M. Ott, District Attorney, Eugene M. Benton, Assistant District Attorney, for appellee.

The jurisdiction of the probate court is enlarged by OCGA §27-1-35 to authorize that court to receive guilty pleas in cases involving violations of Title 27, Game and Fish. Nothing in that section or any other section of which we are aware enlarges that jurisdiction to permit trials in the probate court in cases in which defendants plead not guilty to violations of Title 27. We conclude, then, as did the probate court and the superior court in this case, that the probate court lost jurisdiction of the hunting violation cases at the moment appellant entered his pleas of not guilty.

“Under OCGA § 16-1-8 (d), ‘a prosecution is not barred within the meaning of this Code section if: (1) The former prosecution was before a court which lacked jurisdiction over the accused or the crime.’ ” Parker v. State, 170 Ga. App. 333 (1) (317 SE2d 209) (1984). Since, as we have ruled, the probate court lost jurisdiction to try the hunting violations when appellant entered pleas of not guilty, the later prosecution is not barred, and the trial court did not err in denying appellant’s plea of former jeopardy.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75691.
    MILSAP v. THE STATE.
    (364 SE2d 631)
   Benham, Judge.

Convicted of selling cocaine, appellant raises on appeal the sufficiency of the evidence presented at trial and the admissibility of polygraph evidence. We affirm.

1. An agent of the Georgia Bureau of Investigation testified that he went to an apartment complex with a confidential informant for the purpose of buying cocaine. The person they sought was not home, but appellant approached and asked them whether they were looking for anything. Informed that they wanted cocaine, appellant accompanied the agent and the informant to a car and told the man sitting in the car that the agent wanted to buy cocaine. The agent negotiated the purchase directly with the man in the car, but the cocaine passed from that man to appellant and then to the agent. The agent then paid the man in the car directly and got his change from that man. The agent and the informant walked away, leaving appellant standing by the car. A witness from the State Crime Lab testified that the substance delivered to her by the agent was cocaine. A polygraph examiner testified that appellant was deceptive in his responses to questions concerning the transaction. We hold that the evidence at trial was sufficient to authorize a rational trier of fact reasonably to find appellant guilty beyond a reasonable doubt of the offense of sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hubert v. State, 181 Ga. App. 684 (353 SE2d 612) (1987); Mullinnix v. State, 179 Ga. App. 104 (1) (345 SE2d 650) (1986).

Decided January 6, 1988.

Charles E. Day, for appellant.

John M. Ott, District Attorney, Eugene M. Benton, Assistant District Attorney, for appellee.

2. Appellant’s remaining contentions of error concern the admission into evidence of the polygraph examiner’s testimony. However, the grounds of objection raised on appeal were not raised in the trial court and were, therefore, waived. McBurse v. State, 182 Ga. App. 759 (3) (357 SE2d 144) (1987).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75717.
    FRANKLIN v. THE STATE.
    (364 SE2d 632)
   Benham, Judge.

In a three-count indictment, appellant was charged with incest and child molestation of his 9-year-old stepdaughter, and contributing to the delinquency of a 14-year-old girl by engaging in sexual intercourse with her which resulted in her pregnancy. The jury acquitted appellant of incest and contributing to the delinquency of a minor, but found him guilty of child molestation. In his sole enumerated error, appellant contends the trial court should have granted him a new trial due to its failure to grant his motion to sever the delinquency count from the incest and child molestation counts.

“Under the ABA Standards [on Joinder of Offenses], adopted by the Supreme Court in Dingler [v. State, 233 Ga. 462 (211 SE2d 752) (1975)] at 463, ‘two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses are of the same or similar character, even if not part of a single scheme or plan. However, whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.’ ” Reeves v. State, 177 Ga. App. 867 (341 SE2d 711) (1986). Where offenses are similar in nature and show a common plan or scheme, whether to grant a defendant’s motion for severance is an exercise of the trial court’s discretion since the crimes are not joined simply because they are similar. Bradford v. State, 166 Ga. App. 584 (2) (305 SE2d 32) (1983).

Decided January 6, 1988

Michael R. Jones, Sr., for appellant.

John M. Ott, District Attorney, for appellee.

All of the charges leveled against appellant involved sexual activity with young girls, reaching the level of a pattern. Therefore, the trial court did not abuse its discretion in refusing to sever the offenses for trial. Cooper v. State, 253 Ga. 736 (3) (325 SE2d 137) (1985); Jones v. State, 168 Ga. App. 652 (1) (310 SE2d 17) (1983).

Judgment affirmed.

Banke, P. J., and Corley, J., concur.


text:
    73805.
    GENTILE v. MILLER, STEVENSON & STEINICHEN, INC.
    (365 SE2d 288)
    Decided January 11, 1988.

      James B. Gordon, for appellant.
   Sognier, Judge.

In Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583 (361 SE2d 383) (1987), the Supreme Court reversed the judgment of this court in Gentile v. Miller, Stevenson & Steinichen, Inc., 182 Ga. App. 690 (356 SE2d 666) (1987). Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court and the judgment of the trial court is reversed.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

Donald E. Loveless, John W. Winborne III, for appellee.


author: McMurray, Presiding Judge.

text:
    75206.
    75207.
    CARR v. THE STATE. GLAZE v. THE STATE.
    (364 SE2d 633)
   McMurray, Presiding Judge.

Defendants were convicted of two counts of violating the Georgia Controlled Substances Act. In their identical sole enumeration of error, each defendant contends the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant. Held:

The search warrant was issued solely on the strength of an affidavit executed by Officer B. D. Woods. No oral testimony was presented to the issuing magistrate. In pertinent part, Officer Woods’ affidavit reads as follows: “During the first week of November 1986, this officer was contacted by a confidential and reliable informant known to this officer whose information has led to the seizure of contraband and has led to at least one arrest in the past was in the above location within the past seventy-two (72) hours and observed the packaging and sales of contraband namely marijuana. This officer observed the informant enter the above location.”

Defendants contend the affidavit was insufficient to support the issuance of the search warrant. We disagree. “In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court discarded the strict two-pronged, Aguilar-Spinelli requirement of (a) demonstrating an informant’s reliability and (b) providing the source of the informant’s tip in an affidavit to support issuance of a search warrant, and adopted the ‘totality of the circumstances’ test. ‘The task of the issuing magistrate is simply to make a practical, commonsense decision, whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud(ing)” that probable cause existed.’ Id. at 238-239. See also State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).” State v. Farmer, 177 Ga. App. 18, 19 (338 SE2d 489).

Our review of the affidavit leads us to conclude that, using a “practical, common-sense” approach, the issuing magistrate had substantial reason to conclude that probable cause was present. The affidavit demonstrated the veracity of the informant and the basis of his knowledge. Moreover, the information was corroborated somewhat by the affiant’s statement that she saw the informant enter the premises. It cannot be said, therefore, that the affidavit was insufficient. See generally Mincey v. State, 180 Ga. App. 898 (1) (350 SE2d 852). The mere fact that the affiant made other affidavits for warrants using language similar to the affidavit in this case is of no consequence. The trial court did not err in denying defendants’ motion to suppress evidence.

Decided January 11, 1988.

Steven T. Maples, for appellant (case no. 75206).

David R. Rogers, for appellant (case no. 75207).

Robert E. Wilson, District Attorney, John H. Petrey, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75348.
    JOHNSON v. THE STATE.
    (364 SE2d 893)
   Sognier, Judge.

Appellant was convicted of attempted burglary and he appeals.

1. Appellant contends the trial court erred by charging the jury on flight. He argues that all evidence connecting him with the scene of the crime was circumstantial and there was no evidence of flight by appellant.

The evidence disclosed that Ken Boling, general shop manager of Parts Manufacturing Associates, left work sometime after 11:00 p.m. and noticed an unfamiliar truck parked at the rear of the company’s building. Boling drove to a nearby bar and restaurant and called the police, requesting they come and check on the truck. On arrival the police checked the area for the operator of the truck and discovered that a fence separating Parts Manufacturing Associates and a firm called Ditch Witch had been cut. The police checked the Ditch Witch building and found that two door handles had been pulled or cut off; they also found some footprints in the mud behind the Ditch Witch building. The police ran a check on the truck’s VIN and determined that it belonged to appellant. The police then called appellant’s wife, who stated that she was to pick up appellant at a Texaco station at the intersection of 1-285 and the Riverdale Road exit. An officer was dispatched to the Texaco station, where he picked up appellant as he was walking toward the Texaco station on the exit ramp from 1-285 to Riverdale Road. Appellant was returned to the scene of the attempted break-in at Ditch Witch, where he told the police he had been working on a house just off highway 138 east of Jonesboro, Georgia, when he discovered his truck was missing. Appellant also told the police that he then walked on Highway 138 to State Highway 85; north on 85 to 1-285; and thence to Riverdale Road where the Texaco station was located. Appellant was unable to show the police the house where appellant was allegedly working when his truck was stolen, and when police retraced the route appellant said he had taken, it was a distance of fourteen miles. Appellant had the keys to his truck in his pocket, and the design on the sole of the tennis shoes appellant was wearing matched the footprints found behind the Ditch Witch building. Further, a pair of bolt cutters was found behind the seat of appellant’s pickup truck, and an expert in tool mark identification testified that tool marks left on one of the door handles that had been removed matched marks made by the bolt cutters found in appellant’s truck. Testimony was also presented that the Texaco station was only two-and-a-half or three miles from Ditch Witch.

Decided January 11, 1988.

Ansell T. Maund III, for appellant.

Robert E. Keller, District Attorney, for appellee.

To justify a charge on a given subject it is not necessary that there be direct evidence going to that point; it is enough if there is something from which a legitimate process of reasoning can be carried on in respect of it. Butler v. State, 170 Ga. App. 257, 259 (2) (316 SE2d 841) (1984). In our opinion, the evidence set forth above supports an inference that appellant was at the scene and fled the scene after his unsuccessful attempt to break into the Ditch Witch building. Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. Id. Hence, the trial court did not err by charging the jury on flight.

2. Appellant contends the evidence, being all circumstantial, is insufficient to support the verdict because it does not exclude every reasonable hypothesis save that of appellant’s guilt. Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is primarily a question for the jury, Jones v. State, 165 Ga. App. 36, 38 (1) (299 SE2d 576) (1983), especially where, as here, the jury has been charged on this issue. We find the evidence set forth in Division 1, even though circumstantial as to appellant’s presence at the scene, is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See generally Jones v. State, 156 Ga. App. 823, 824-825 (275 SE2d 712) (1980).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    75391.
    ATLANTA EYE CARE, INC. v. AETNA CASUALTY & SURETY COMPANY.
    (364 SE2d 634)
   Sognier, Judge.

Atlanta Eye Care, Inc. brought suit against Aetna Casualty & Surety Company to recover payment for fire damage under a business owner’s policy issued to it by Aetna. The trial court granted Aetna’s motion for summary judgment and denied Atlanta Eye Care’s motion for summary judgment. This appeal ensued.

Appellant, as tenant, negotiated a lease agreement for unfurnished retail space in 1982. The lease provided that “[l]andlord agrees to contribute $8,000.00 to tenant improvements to be reimbursed to [appellant] upon lien waiver releases.” Appellant spent $19,015.55 of its own funds to improve the leased premises and, upon completion of the work, was reimbursed $8,000 by the landlord pursuant to the lease agreement. The $8,000 was used to help defray the costs of the improvements. Appellant thereafter entered into an insurance policy with appellee that provided coverage for business personal property as follows: “(5) Tenants improvements and betterments; This means your use interest in fixtures, alterations, installations, or additions you pay for (exclusive of your rent) that are a part of the building you rent and that cannot legally be removed.” When appellant’s leased premises were substantially damaged by fire in January 1985, appellee paid all but $8,000 of appellant’s claim for damage to its improvements and betterments.

We affirm the trial court’s grant of summary judgment to appellee and the denial of appellant’s motion for summary judgment. The issue here is not, as appellant argues, whether it had an insurable interest in the $8,000 worth of improvements and betterments or whether it was obligated under its lease to expend the $8,000 solely on the improvements. Rather the issue is whether the coverage appellant did purchase extends to the property in question. The evidence is uncontroverted that appellant’s lease agreement entitled it to an $8,000 reimbursement for improvements and that the $8,000 it received from its landlord was expended for that purpose. Appellant’s arguments about the $8,000 reimbursement serving as an incentive to enter into the lease agreement do not rebut the uncontroverted fact that appellant did not pay for $8,000 of the improvements. Since appellant did not purchase replacement coverage from appellee but instead purchased coverage only for those improvements and betterments for which it had paid, appellee was not obligated under the plain language of the policy to recompense appellant for damage to improvements and betterments paid for by appellant’s landlord. See generally Sun Valley v. Southland Bonded Warehouse, 171 Ga. App. 233, 234 (1) (319 SE2d 91) (1984). The cases cited in defense of its position by appellant are factually distinguishable from the case at bar and therefore do not support appellant’s contentions.

Decided January 11, 1988.

Daryl G. LeCroy, for appellant.

Marvin A. Devlin, Arnold Wright, Jr., Lance D. Lourie, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    75397.
    HUDSON v. THE STATE.
    (364 SE2d 635)
   Birdsong, Chief Judge.

Appellant, Stephen George Hudson, appeals his conviction for trafficking in cocaine. Held:

1. Appellant’s first enumerated error is that the trial court erred in failing to grant the motion for a “new jury” based on the fact that there were no blacks on the panels for which the jurors were selected. At trial appellant’s counsel objected to the makeup of the county’s jury list and made an oral motion for a continuance to obtain a new jury, as the jury panel had no blacks on it and the appellant was black. This form of challenge of the jury array has been found sufficient to preserve the issue for appeal. See Mincey v. State, 180 Ga. App. 263 (349 SE2d 1). Appellant did not challenge the “method” used to select the jury, but did reserve with consent of the trial judge the right to subsequently insert into the trial record statistical information concerning the racial demographics of the county. Although both the appellant and the appellee have referred to statistical data concerning county racial demographics in their briefs, no such information has been inserted into the record in any acceptable form. We have consistently warned counsel that this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. See Coweta Bonding Co. v. Carter, 230 Ga. 585 (1) (198 SE2d 281); Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438). We see no reason to depart from this sound rule.

Accordingly, this court is left with the question of whether the mere fact that a jury panel contains no black members when the accused is black will, standing alone, support a challenge to the array and warrant the granting of a motion for a new jury. The answer is no. A defendant is entitled to a panel of qualified jurors, not a panel of preferred jurors. See Smith v. State, 245 Ga. 205, 208 (5) (264 SE2d 15). It is presumed that public officials perform their duties lawfully, and in good faith. (York v. Miller, 168 Ga. App. 849 (310 SE2d 577)); accordingly, it is initially presumed that a jury is selected in accordance with constitutional and statutory requirements. Once, however, the defendant establishes a prima facie case of racial discrimination in jury selection the burden of going forward shifts to the prosecution to explain the State’s conduct and to demonstrate that racially neutral criteria, in fact, prompted the challenged conduct. See generally Gamble v. State, 257 Ga. 325 (357 SE2d 792). The requirements for establishing a prima facie case of jury discrimination are found in numerous reported cases. See generally Bowen v. State, 244 Ga. 495, 500 (260 SE2d 855); Barrow v. State, 239 Ga. 162 (2) (236 SE2d 257). Appellant has failed to meet this criteria and has not established a prima facie case of racial discrimination in the makeup of the jury. Compare Barrow, supra, with Pass v. Caldwell, 231 Ga. 192 (200 SE2d 720).

Decided January 11, 1988.

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

2. Appellant’s second enumerated error is that the trial court erred in failing to grant appellant’s motion for a directed verdict. The appellant’s contention is without merit. A motion for a directed verdict in a criminal trial should only be granted where there is no conflict in the evidence at trial and the evidence demands a verdict of acquittal as a matter of law. Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). The state of the evidence in this case was in conflict, and did not demand a verdict of acquittal notwithstanding the circumstantial nature of the prosecution’s case. Further, our review of the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    75423.
    AMASON, INC. v. METROMONT MATERIALS CORPORATION.
    (364 SE2d 637)
   Banke, Presiding Judge.

Amason, Inc., appeals the trial court’s grant of summary judgment to Metromont Materials Corporation in an action by Metromont to recover an alleged account indebtedness. Held:

1. Amason contends that the trial court erred in not allowing it to withdraw certain statutory admissions of fact which had resulted from its failure to file a timely response to requests for admission propounded by the appellee. See generally OCGA § 9-11-36 (a). The trial court denied Amason’s motion to withdraw these admissions based on its failure to present any evidence in support of the motion.

Decided January 11, 1988.

Arnold S. Kaye, for appellant.

Michael D. Anderson, James D. Meadows, for appellee.

Generally, “[t]he propriety of the trial court’s grant or denial of a motion to withdraw admissions must be evaluated in light of the standards set forth in the concurring opinion of Justice Hill in Cielock v. Munn, 244 Ga. 810 (262 SE2d 114) (1979), and adopted by the Supreme Court in Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198) (1982).” Battle v. Strother, 171 Ga. App. 418, 420 (319 SE2d 887) (1984). These standards place a burden on the movant to show that the presentation of the merits of the case would be sub-served by allowing the admissions to be withdrawn. Because Amason failed to present any such evidence, the trial court properly denied its motion to withdraw the admissions. Accord Worth v. Alma Exchange Bank & Trust, 171 Ga. App. 748, 752-753 (320 SE2d 816) (1984).

2. Amason contends that material issues of fact exist with respect to its defenses of lack of jurisdiction and improper venue. Amason is a non-resident of the county where the suit was brought but is alleged to be subject to suit there on the ground that it is a joint obligor with other defendants who are residents of that county. See Smith v. United Ins. Co. of America, 169 Ga. App. 751, 753 (315 SE2d 265) (1984). While the admissions made by Amason establish as a matter of law, for purposes of the present litigation, that it has no defense on the merits to the plaintiff’s claim, it does not follow that the plaintiff is automatically entitled to a final judgment against Amason upon which immediate execution and levy would be authorized. “Where a court acquires jurisdiction over a defendant solely because the court has jurisdiction over a joint-defendant . . . the exercise of such jurisdiction so as to enter a final judgment against such a defendant requires a determination of liability against the defendant over which it is exercising primary jurisdiction.” Byrd v. Moore Ford Co., 116 Ga. App. 292, 294 (157 SE2d 41) (1967). Thus, Amason is correct in its assertion that the entry of final judgment against it will have to await and will be contingent upon an adjudication of the liability of the other defendants.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75515.
    ATLANTIC MECHANICAL CONTRACTORS, INC. v. HURSTON.
    (364 SE2d 638)
   Sognier, Judge.

Harold Brent Hurston brought suit against his employer, Atlantic Mechanical Contractors, Inc. (Atlantic), to recover damages incurred as a result of Atlantic’s failure to pay medical insurance premiums. Atlantic filed no answer, and the action went into default. After a hearing at which evidence of damages was presented, the trial court entered judgment for Hurston for both actual and punitive damages, and Atlantic brings this appeal.

Appellant contends the trial court erred by awarding appellee punitive damages since appellee’s cause of action arose solely in contract and thus, under the provisions of OCGA § 13-6-10, no punitive damages were awardable. We do not agree. Although the relationship between the parties (employer and employee) arose contractually, “[appellee is] not barred from bringing a tort action for the violation of a duty flowing from relations between the parties which were created by contract. [Cit.]” City of Douglas v. Johnson, 157 Ga. App. 618, 619 (278 SE2d 160) (1981).

Viewing the allegations of the complaint as if supported by proper evidence, which we are bound to do because appellant has defaulted, OCGA § 9-11-55 (a), the record discloses that appellant withheld a portion of appellee’s paychecks for payment of premiums on group health insurance. In doing so, appellant assumed a duty to use the funds withheld for that purpose alone. Appellant failed to pay those premiums and did not notify appellee that it had failed to do so, but instead continued to make payroll deductions and appropriated the sums withheld from appellee’s pay, in violation of its duty (imposed by law and not by the contract) not to convert appellee’s funds to its own use and benefit. “In order to present a cause of action for conversion an act of dominion over the personal property of another inconsistent with his rights or by an unauthorized appropriation must be shown. [Cit.]” Kornegay v. Thompson, 157 Ga. App. 558, 559-560 (2) (278 SE2d 140) (1981). Those elements of conversion were shown, and the action thus sounds in tort. Accordingly, the trial court did not err by awarding punitive damages.

We are similarly unpersuaded by appellant’s argument, based on Stroud v. Elias, 247 Ga. 191 (275 SE2d 46) (1981), that insufficient facts were pleaded in the complaint to set forth a claim for the recovery of punitive damages. As discussed above, the complaint sets forth sufficient facts to authorize a recovery for the tort of conversion and thus, unlike the situation in Stroud, supra, where no case was made out in tort by the pleadings, the award of punitive damages was not erroneous.

Decided January 11, 1988.

Jimmy J. Boatright, for appellant.

Lee R. Hasty, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    75102.
    FARMER v. THE STATE.
    (364 SE2d 639)
   Carley, Judge.

Appellant was tried before a jury on a four-count indictment: Count One alleged that appellant had operated a motor vehicle after he had been declared to be an habitual violator; Count Two alleged that appellant had been driving while under the influence of alcohol; Count Three alleged that appellant had knowingly operated a motor vehicle “without effective insurance thereon or without an approved plan of self-insurance” in violation of former OCGA § 33-34-12; and, Count Four alleged that appellant had been driving too fast for road conditions. The jury returned a guilty verdict as to all four counts. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdict.

1. Appellant’s main contention is that the evidence did not authorize a finding that he had been the driver of the vehicle in question and that a verdict of his guilt as to any driving offense would therefore be unauthorized. The evidence that was adduced at appellant’s trial is virtually identical to that which was produced in Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987). The only major distinction is that, unlike Phillips, in this case the purported actual driver of the vehicle was called by appellant as a defense witness. This witness corroborated appellant’s exculpatory testimony and testified that it was he and not appellant who had driven the car. However, the jury was also authorized to find that this defense witness had been impeached by proof of his prior convictions for crimes of moral turpitude. “Although no one saw [appellant] driving the truck, the circumstantial evidence demonstrated he had been in physical control of a moving vehicle shortly before the police arrived. ‘ “The jury was authorized not to accept an alternate hypothesis offered by (appellant).” [Cit.]’ [Cit.]” Phillips v. State, supra at 55 (1). Thus, the evidence would support a finding that appellant had driven the vehicle.

2. However, the additional evidence that was adduced with regard to appellant’s violation of former OCGA § 33-34-12, as alleged in Count Three, is almost identical to that which was produced in Wil liams v. State, 181 Ga. App. 49 (351 SE2d 207) (1986). That appellant “did not have an insurance card (or, for that matter, insurance coverage) cannot be said to prove ipso facto that he knowingly operated a vehicle (which was owned by another) without effective insurance. . . . There being no conflict in the evidence, the trial court erred by failing to grant [appellant’s] motion for a directed verdict of acquittal upon Count [Three] of the indictment.” Williams v. State, supra at 50-51 (2). Accordingly, appellant’s conviction as to that count must be reversed on the general grounds.

Decided January 12, 1988.

Fred L. Cavalli, for appellant.

Robert E. Keller, District Attorney, Tracey Ramey, Assistant District Attorney, for appellee.

3. Appellant enumerates as error the failure to give his requested charges on circumstantial evidence. The record shows that the trial court did charge on circumstantial evidence. However, that charge “is claimed to have been inadequate because it was not the instruction requested by [appellant]. The charge [given by the trial court] was in accordance with [OCGA § 24-4-6], which establishes the standard for conviction on circumstantial evidence. It is not necessary to give the exact language of a request to charge when the same principles are fairly given in the general charge. [Cit.] The trial court did not err.” Howard v. State, 153 Ga. App. 171 (3) (264 SE2d 704) (1980).

4. For the reasons discussed in Division 2, the conviction for violating former OCGA § 33-34-12 is reversed. The remaining three convictions are affirmed.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Benham, J., concur.


text:
    75193.
    75194.
    CLARK v. THE STATE. CUMMINGS v. THE STATE.
    (364 SE2d 641)
   Carley, Judge.

Appellants were co-indicted for possession of cocaine with intent to distribute. They were jointly tried before a jury and both were found guilty. Each appellant filed a separate appeal from the respective judgment of conviction and sentence that was entered on the guilty verdict against him. Appellants’ separate appeals are hereby consolidated for disposition by this single opinion.

1. Both appellants enumerate the general grounds. Based on a thorough review of the evidence that was produced at trial as against each appellant, we find that a rational trior of fact could reasonably have found both to be guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 12, 1988.

S. Andrews Seery, for appellant (case no. 75193).

Gwendolyn A. Atkinson, for appellant (case no. 75194).

H. Lamar Cole, District Attorney, James E. Hardy, J. David Miller, Assistant District Attorneys, for appellee.

2. Each appellant also enumerates as error the trial court’s failure to include in its charge to the jury, without request, a definition of the statutory language “possess with intent to distribute.” “ ‘In the absence of request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal. [Cits.]’ [Cit.]” Black v. State, 167 Ga. App. 204, 207 (6) (305 SE2d 837) (1983). “The meaning of the phrase [‘with intent to distribute,’] although necessarily somewhat inexact, is not so obscure as to require definition absent a request, and the trial court did not err in failing to define that phrase.’’ Dix v. State, 238 Ga. 209, 215 (5) (232 SE2d 47) (1977). This enumeration is without merit.

3. Appellant Cummings enumerates as error the trial court’s admission into evidence, over his hearsay objection, of certain documents found in the dwelling he shared with others. The trial court ruled that the documents were admissible for the limited non-hearsay purpose of showing that the particular bedroom where they were found was occupied by appellant Cummings and not for the purpose of showing the truth of any matter stated therein. The trial court’s ruling was correct. See DeKalb County v. Townsend Assoc., 243 Ga. 80, 82 (4b) (252 SE2d 498) (1979); Agnor's Ga. Evid. (2nd ed.), § 11-1 (1986). This enumeration is without merit.

Judgments affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75264.
    EDWARDS v. WILSON et al.
    (364 SE2d 642)
   Carley, Judge.

Appellant-defendant in this negligence action appeals from the judgment that was entered in favor of appellee-plaintiffs Mr. and Mrs. Michael Wilson after a bench trial. The evidence, although not without dispute, would have authorized the trial court, sitting as the trior of fact, to make the following findings: Appellees purchased “pit passes” for appellant’s automobile race track. While making their way to the track entrance, appellees encountered one of appellant’s employees who was engaged in directing both vehicular and pedestrian traffic. Appellant’s employee directed appellees to stop and they did. Appellant’s employee then motioned to the driver of a trailer which was located behind appellees and several feet to their right to move forward. The driver of the trailer complied with the motion of appellant’s employee and, as the consequence, the trailer struck appellees from the rear. Based upon these and additional findings, the trial court entered the judgment for appellees from which appellant brings this appeal.

1. Several of appellant’s enumerations relate to the findings of fact which were made by the trial court. “When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. [Cits.] On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. [Cit.] Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is ‘any evidence’ to uphold the lower court’s determination. [Cit.]” Cessna Fin. Corp. v. Design Engineering, 176 Ga. App. 206, 208 (335 SE2d 625) (1985).

There was sufficient evidence to authorize the trial court’s finding that appellant’s employee, having first undertaken to direct appellees to stop, then directed the trailer to move forward without determining whether that movement of the trailer could be made in reasonable safety. Accordingly, the trial court did not err in failing to find that appellees were barred from recovering based upon their alleged “equal or superior knowledge” of the danger presented by the trailer. “ ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm ... or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ [Cit.] ‘An act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.’ [Cit.] Hence, if a person signals another that the way is safe for the other’s vehicle to pass, or to come in front of him, he should realize that his voluntary action may cause reliance upon his signal which causes the other person to forego reliance upon his own lookout, which is necessary for the aid or protection of the person signaled.” (Emphasis in original.) Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 835 (331 SE2d 899) (1985). The trial court was authorized to find that, by his direction to appellees to stop, appellant’s employee had thereby induced appellees to rely upon his safe direction of traffic rather than upon their own lookout. It follows that the trial court was authorized to find appellant liable for his employee’s negligence under a respondeat superior theory.

We need not address the further contention that the trial court erred in finding that appellees were also authorized to recover against appellant under a direct negligence theory. Any possible error in the determination that appellant was directly liable would be rendered harmless by the evidentiary support for the finding that appellant was vicariously liable for appellees’ injuries.

2. The evidence authorized a finding that all of the special damages which were sought by appellee Mr. Wilson and awarded by the trial court were attributable to the physical injury here at issue rather than to the misconduct or poor judgment of appellee Mr. Wilson himself. Accordingly, the trial court did not err in failing to find that appellee Mr. Wilson had not mitigated his damage.

3. Appellant enumerates as error the failure of the trial court to find that appellees had contractually waived their right to sue. It is undisputed that the tickets purchased by appellees indicated that “[b]y acquiring and using this Pit Pass, [they] waive[d] all claims for personal injury and property damage against [appellant], and [would] hold [appellant] harmless in the event of any personal injury to [themselves] on any damage or injury to [their] property occasioned while in attendance at the race meet.” (Emphasis supplied.) However, it is undisputed that appellees never used their “pit pass” or suffered personal injury “occasioned while in attendance at the race meet” because they were struck by the trailer before they entered the pit where they were to attend the race meet. It is clear from the language of the “pit pass” that appellant was attempting to secure his release from liability for the injuries that an attendee at an automobile race track would normally have assumed, not his release from liability for injuries resulting from his employee’s negligence in directing pedestrian and vehicular traffic prior to the commencement of the race. Moreover, it is undisputed that, due to appellees’ inability to use the passes as the result of their injuries, they received a refund of the purchase price of those passes. This enumeration is without merit.

4. The trial court’s failure to reduce its awards to appellees pursuant to the doctrine of comparative negligence is enumerated as error. The evidence may have authorized a finding of appellees’ negligence, but it clearly did not demand such a finding. Accordingly, the trial court’s finding that appellees were not negligent and its consequent failure to apply the comparative negligence doctrine was not clearly erroneous and must be affirmed. See generally Cessna Fin. Corp. v. Design Engineering, supra.

5. The trial court’s application of the collateral source rule forms the basis for one of appellant’s enumerations of error. We note at the outset that the trial of this case was conducted prior to July 1, 1987, the effective date of Ga. L. 1987, pp. 915, 917, whereby OCGA § 51-12-1 was amended. Accordingly, any impact that the 1987 enactment may have on the application of the collateral source rule is not relevant to our consideration of this case.

Our review of the record shows that the trial court correctly applied the collateral source rule pursuant to controlling pre-July 1, 1987 authority. “The ‘collateral source rule’ obtains in this jurisdiction. [Cit.] Under this rule ‘[a] tortfeasor can not diminish the amount of his liability by pleading payments made to the plaintiff under the terms of a contract between the plaintiff and a third party who was not a joint tortfeasor.’ [Cits.]” Insurance Co. of N. America v. Fowler, 148 Ga. App. 509, 511 (2) (251 SE2d 594) (1978). This enumeration of error is without merit.

6. The trial court reduced appellee Mr. Wilson’s award by the $5,000 in PIP benefits which had been paid to him under the policy of the owner of the trailer which had struck him. Appellant enumerates as error the failure of the trial court to reduce the award by an additional $5,000, which amount allegedly represents additional PIP benefits available to Mr. Wilson under his own policy.

Under OCGA § 33-34-9 (b), a “plaintiff could only recover those amounts in excess of that provided by basic ‘no fault’ coverage . . . [$5,000 under current law].” (Emphasis supplied.) Hall v. White, 150 Ga. App. 545, 546 (258 SE2d 256) (1979). If appellee Mr. Wilson has received his full $5,000 in basic PIP benefits under the insurance policy of another, any such additional PIP benefits as he may have received under his own policy would represent optional PIP coverage. See generally Voyager Cas. Ins. Co. v. King, 172 Ga. App. 269 (323 SE2d 4) (1984). Under OCGA § 33-34-9 (b), a “plaintiff is not precluded from recovery as to amounts received from optional coverage provided by the purchase of additional personal injury protection (PIP). [Cit.] The statute does not prevent one from receiving the benefits of additional PIP and suing the alleged tortfeasor for those same sums.” Hall v. White, supra at 546. See also McGlohon v. Ogden, 251 Ga. 625, 626 (1) (308 SE2d 541) (1983). Accordingly, the trial court did not err in failing to reduce appellee Mr. Wilson’s award by more than the $5,000 in basic PIP benefits he had received.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided January 12, 1988.

Richard L. Collier, for appellant.

Richard W. Hendrix, for appellees.


text:
    75337.
    REEVES v. CRAWFORD et al.
    (364 SE2d 895)
   Carley, Judge.

Appellant-plaintiff filed suit, seeking to recover for the property damage to his automobile allegedly caused by appellee-defendants’ negligence. Appellees answered, denying the material allegations of the complaint. The case came on for a jury trial. At the close of appellant’s evidence, appellees moved for a directed verdict, asserting that, as to the issue of damages, appellant had failed to present sufficient evidence so as to authorize submission of the case to the jury. The trial court granted appellees’ motion for a directed verdict and appellant appeals from that order.

Since appellant did not undertake to have repairs made to his automobile after the collision, the proper measure of damages would be the difference in the before and after value of the automobile. See General GMC Trucks v. Crockett, 145 Ga. App. 503 (2) (244 SE2d 78) (1978). On direct examination, appellant did testify to the value of his automobile before and after the collision. On cross-examination, however, appellant admitted he had no real idea what the actual value of his car had been before or after the collision and that the opinion he had given as to those values was “mostly” guesswork. Appellees’ motion to strike appellant’s testimony concerning the value of his automobile was correctly granted by the trial court. Opinion evidence offered by a non-expert witness “as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. [Cits.] Absent this foundation, the opinion as to value [of the property] is inadmissible as it is nothing more than an ‘unsupported conclusion or guess of the witness.’ [Cit.]” Sisk v. Carney, 121 Ga. App. 560, 563 (4) (174 SE2d 456) (1970). See Harris v. State, 191 Ga. 243, 259 (9) (12 SE2d 64) (1940). See also Green, Ga. Law of Evidence (2nd ed.), § 110. “The question of damages cannot be left to speculation, conjecture and guesswork. [Cits.]” Development Corp. of Ga. v. Berndt, 131 Ga. App. 277, 278 (205 SE2d 868) (1974). Other than his own stricken testimony, appellant introduced no evidence as to the value of his car. “As the [appellant’s] evidence [failed] to provide sufficient data to permit a reasonable determination of allowable damages the trial court did not err in directing a verdict on this issue.” General Warranty Corp &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 437 (4) (356 SE2d 83) (1987).

Decided January 12, 1988.

Paulina C. Hoover, D. Dwight Bowen, for appellant.

Donald M. Shivers, James T. Budd, for appellees.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75359.
    75360, 75361.
    HARDMAN v. HARDMAN. HARDMAN v. THE STATE (two cases).
    (364 SE2d 645)
   Benham, Judge.

Appellant was indicted for three counts of child molestation and one count of contributing to the deprivation of a minor. Two of the molestation counts alleged that appellant had fondled the vaginal areas of two females under the age of 14 years. The other molestation count and the count accusing appellant of contributing to the deprivation of a minor alleged that he had committed acts of molestation in the presence of another female under the age of 14 years. Pursuant to a plea bargain, appellant entered guilty pleas to three counts of simple battery. During the pendency of a post-sentencing investigation, the Houston County Department of Family & Children Services filed a petition for custody of appellant’s granddaughter, the child in whose presence the indictment alleged appellant had committed acts of molestation. In Case No. 75359, pursuant to this court’s grant of his application for discretionary review, appellant appeals from orders of the trial court in the custody case denying a motion to dismiss and a motion to recuse, and transferring the case to juvenile court. The other two appeals both concern the criminal prosecution. In them, appellant seeks review of the trial court’s denial of a motion to recuse, the trial court’s failure to sentence him as a first offender, and the imposition of certain conditions of probation.

1. After a full review of the record in Case No. 75359, and especially in view of the continuing pendency of that case in the juvenile court below, we find that case not to meet the criteria for discretionary review. That appeal is, therefore, dismissed as improvidently granted.

2. The notice of appeal in Case No. 75360 states that the appeal is from an order denying appellant’s motion to recuse the trial judge in the criminal case. It is apparent from the record that the criminal case was still pending at the time the notice of appeal was filed. That being so, and appellant having failed to comply with interlocutory appeal procedures as required by OCGA § 5-6-34, the appeal was premature and must be dismissed. Porter v. Calhoun County Commissioners, 167 Ga. App. 53 (306 SE2d 58) (1983). We note that no harm comes to appellant from this action because the enumeration of error filed in the remaining appeal (Case No. 75361) includes the denial of the motion to recuse, permitting this court to reach the merits of all the issues in the criminal case.

3. In the criminal case, appellant asserted in support of his motion to recuse that the trial judge was unable to separate the criminal case from the civil case, resulting in bias and prejudice against appellant in the criminal prosecution. The trial court found the affidavits filed in support of the motion to be legally insufficient and denied the motion.

“On motion for disqualification it is the duty of the judge to pass only on the legal sufficiency of the facts alleged to ascertain whether they support a charge of bias or prejudice. [Cits.] Neither the truth of the allegations nor the good faith of the pleader may be questioned, regardless of the judge’s personal knowledge to the contrary. [Cits.] The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists. [Cits.]” (Emphasis and punctuation omitted.) State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980). (Emphasis supplied.) Applying that test to the present case, we find no error in the trial court’s decision because appellant’s affidavits in support of his motion to recuse do not contain facts demonstrating bias or prejudice. Both affidavits are from appellant’s attorneys and both rely on feelings and interpretations. The facts alleged in the affidavits, as opposed to the feelings and interpretations, show no more than the trial judge exercising discretion and dealing with counsel on two cases. It is not obvious from the record, as appellant contends, that the trial judge adopted the State’s position and did its job. The only evidence to support that contention is that the judge has ruled against appellant on key issues. That alone does not show the bias which will require a trial judge to recuse himself.

4. Appellant requested that he be sentenced as a first offender, and the trial court took that request under advisement. The subsequent refusal to use that sentencing scheme for appellant’s benefit is enumerated as error.

A trial court is not required to grant first offender treatment, but may impose, in its discretion, any sentence prescribed by law. Todd v. State, 172 Ga. App. 231 (2) (323 SE2d 6) (1984). Appellant’s assertion that the trial court abused its discretion in that it withheld first offender treatment specifically for the purpose of making evidence of the conviction admissible against appellant in the civil suit is without merit: it would be admissible in that suit even if first offender treatment had been granted. Hightower v. Gen. Motors, 175 Ga. App. 112 (1) (332 SE2d 336) (1985). Under the record here, including an allegation by appellant’s daughter, later recanted by her, that appellant had molested her when she was a child, we find no abuse of discretion in the trial court’s refusal to sentence appellant as a first offender.

Decided January 12, 1988.

Ronanne M. Wood, Raymond M. Kelley, Jr., for appellant.

Deborah A. Edwards, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee (case no. 75359).

G. Theron Finlayson, District Attorney, Edward D. Lukemire, Assistant District Attorney, for appellee (case nos. 75360, 75361).

5. The final issue in this case is the reasonableness of the conditions of probation imposed by the trial court. The conditions at issue are that appellant continue to take any medication prescribed for him; that he submit periodical reports from the psychologist to whom appellant had been referred by his attorney and from whom appellant had gotten a report for use by the court; that he have no unsupervised contact with females under the age of 14; and that appellant’s visitation with his granddaughter be approved by the Department of Family & Children Services.

The imposition of terms of probation is within the trial court’s discretion. Giddens v. State, 156 Ga. App. 258 (4) (274 SE2d 595) (1980). Considering that the record indicates that appellant had been hospitalized because of his emotional condition during the pendency of the prosecution; that lithium had been prescribed for him; that the batteries to which he entered guilty pleas and the crimes for which he was originally indicted involved young girls; and that his granddaughter was involved in these matters, we find no abuse of discretion in the conditions imposed by the trial court.

Appeals dismissed in Case Nos. 75359 and 75360. Judgment affirmed in Case No. 75361.

Banke, P. J., and Carley, J., concur.


text:
    75408.
    LOVELL v. THE STATE.
    (365 SE2d 133)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with two counts of child molestation, one count of aggravated child molestation, and one count of aggravated sodomy. While the jury was deliberating, the State dismissed the charge of aggravated sodomy. See OCGA § 17-8-3. When the jury requested that it be given further instructions as to the aggravated child molestation and aggravated sodomy charges, the trial court informed the jury of the State’s dismissal of the latter charge. Thereafter, the jury returned a not guilty verdict on one of the counts of child molestation and guilty verdicts as to the other charge of child molestation and the charge of aggravated child molestation. The trial court entered judgments of conviction and sentences on the guilty verdicts and appellant appeals therefrom.

1. Appellant enumerates the general grounds.

“ 'After the jury has returned a verdict of guilty, where the defendant seeks a reversal of his conviction on appeal by . . . asserting the insufficiency of the evidence, the only question presenting itself to the appellate court is whether there is sufficient evidence to satisfy a rational trier of fact of the essential elements of the crime charged beyond reasonable doubt. [Cit.]’ [Cit.] The alleged victim testified in detail as to what occurred. The act[s] she attributed to appellant did in fact constitute molestation [and aggravated molestation, respectively].” Castillo v. State, 178 Ga. App. 312 (2) (342 SE2d 782) (1986). Much of the minor victim’s testimony was corroborated, although a conviction of appellant for commission of the crimes at issue would not require such corroborative evidence. See Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984). Based on a review of the entire record, we find that a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of child molestation and aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Several of appellant’s enumerations of error relate to the trial court’s admission into evidence of a tape recording which had been made of an interview between the victim and a social worker. Appellant’s only objection to the admission of the tape recording at trial was that it constituted “hearsay, adding particular emphasis to possible witness’ testimony. . . .” However, under OCGA § 24-3-16, the tape recording was not susceptible to a hearsay objection. See Sanders v. State, 182 Ga. App. 581, 584 (3) (356 SE2d 537) (1987). See also Newberry v. State, 184 Ga. App. 356 (361 SE2d 499) (1987). Remaining contentions that are now made on appeal as to the inadmissibility of the tape recording were not raised below and will not be considered. “[T]here is a significant variance between the objection raised by appellant during trial and the error [s] enumerated on appeal. [Cit.]. ... ‘A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cit.]” Sprayberry v. State, 174 Ga. App. 574, 575 (1) (330 SE2d 731) (1985).

Decided January 12, 1988.

Claude S. Beck, for appellant.

Michael H. Crawford, District Attorney, E. J. McCollum, Assis tant District Attorney, for appellee.

3. Appellant enumerates as error the trial court’s ruling that the minor victim was a competent witness. “Once a child’s competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. [Cits.] Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent. . . . [Cits.]” Pope v. State, 167 Ga. App. 328, 329 (1) (306 SE2d 326) (1983). Our review of the record does not clearly show that the child was not competent to testify as a witness. Accordingly, this enumeration is without merit.

4. Appellant enumerates as error the trial court’s act of informing the jury that the aggravated sodomy charge had been dismissed by the State.

Appellant has cited no authority for the proposition that the trial court’s action was either erroneous or harmful. As indicated previously, the information was imparted to the jury after it had requested further instructions from the trial court. “When the jury is confused and in doubt and requests further instructions on a particular point, it is the duty of the court to further instruct them. [Cits.]” Freeman v. State, 142 Ga. App. 293, 294-295 (4) (235 SE2d 560) (1977). The jury had expressed confusion with regard to the difference between aggravated child molestation and aggravated sodomy. The trial court acted in the apparent belief that the removal of such confusion could possibly be accomplished by simply informing the jury that one of those counts need not be considered. In order to assure itself that this method had successfully alleviated the jury’s confusion, the trial court asked if there was need for any further instructions. See generally Murray v. State, 180 Ga. App. 493, 494 (1) (349 SE2d 490) (1986). The trial court was clearly authorized to inform the jury of the disposition of one of the charges and, there being no request for any further instructions as to the aggravated child molestation charge which remained, it correctly ordered the jury to return to its deliberations. This enumeration of error is without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75415.
    DIMAURO v. THE STATE.
    (364 SE2d 900)
   Birdsong, Chief Judge.

Appellant, Angelo A. Dimauro, was indicted for the offenses of aggravated assault (four counts), arson in the first degree (two counts), criminal damage to property in the second degree (reduced to criminal trespass), cruelty to animals, and possession of a firearm during the commission of a felony. Appellant entered a plea of not guilty by reason of insanity, but was found guilty but mentally ill on all counts. Held:

1. Appellant’s first enumerated error is that the trial court erred in overruling the motion for a new trial. We disagree. Construing the evidence in a light most favorable to the verdict, we find that a rational trier of fact could have found appellant guilty but mentally ill beyond a reasonable doubt; and, we also find that a rational trier of fact could have found that appellant failed to prove by a preponderance of the evidence that he was insane at the time the charged crimes were committed. Milam v. State, 255 Ga. 560 (3) (341 SE2d 216), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) and Brown v. State, 250 Ga. 66, 71-72 (295 SE2d 727).

2. Appellant’s second enumerated error is that the trial court erred in denying his motion for mistrial when appellant’s character was improperly placed in issue by the prosecution. A police detective testified that a photographic line-up was conducted using a photograph of appellant that was on file “from a previous arrest in DeKalb County.” Appellant moved for a mistrial; however, the trial judge denied the motion and gave the jury a curative instruction to completely strike the statement from their minds, to “totally disregard it,” and “not to use that statement at all in [their] deliberations.” The decision whether to grant a mistrial or give a curative instruction ordinarily rests in the trial judge’s sound discretion. Crawford v. State, 256 Ga. 585 (2) (351 SE2d 199). However, appellant argues that because the defense of insanity was being asserted and the jury was given a charge “which specifically defined insanity as not repeated unlawful or antisocial conduct” (emphasis in appellant’s brief), that a curative instruction was inadequate to remedy this alleged error. We note that the trial judge also informed the jury that “[t]he term mentally ill does not include a mental state manifested only by repeated unlawful or antisocial conduct,” but this instruction obviously did not exacerbate or rejuvenate the original error, as the jury found appellant guilty but mentally ill on all counts. We are satisfied that the jury followed the curative instruction and that the appellant was not prejudiced in any manner by the detective’s reference to appellant’s apparent prior arrest. We will not disturb the trial court’s ruling absent an abuse of discretion; abuse of discretion does not exist in this case because the curative instruction served to prevent the alleged harmful testimony from having any prejudicial impact on appellant. Crawford, supra at 587; see Dunn v. State, 251 Ga. 731 (4) (309 SE2d 370) (reference to an arrest, made in presence of jury, without other detail, is harmless error when proper curative instruction given).

3. Appellant’s third enumerated error is that “[t]he trial court erred in charging the jury that it might find appellant mentally ill, thus guilty but mentally ill ‘by a preponderance of the evidence.’ ” The appellant has enumerated no other specific errors concerning the instructions.

The trial court instructed the jury that: “If you believe beyond a reasonable doubt . . . that the defendant is guilty and you also believe by a preponderance of the evidence . . . that the defendant was mentally ill at the time of the commission of the offense then you would be authorized to find the defendant guilty but mentally ill.” OCGA § 17-7-131 (c) (2) pertinently provides that: “The defendant may be found ‘guilty but mentally ill . . .’ if the jury . . . finds beyond a reasonable doubt that the defendant is guilty of the crime charged and was mentally ill or mentally retarded at the time of the commission of the crime.”

Assuming that the proper statutory standard for establishing the element of mental illness for purposes of OCGA § 17-7-131 (c) (2) is that of “beyond a reasonable doubt” (Spivey v. State, 253 Ga. 187 (2) (319 SE2d 420)), our review of the record fails to disclose how appellant could have been prejudiced by the instruction given. Appellant argues, that because the jury twice requested additional instructions “[i]t is quite likely the jury did not find the appellant mentally ill beyond a reasonable doubt” and implies that he was somehow convicted because of this instruction when he otherwise would have been found insane and/or acquitted.

At the onset we find that the jury was not erroneously instructed as to the law regarding the presumption of innocence, the State’s burden of proof to convict, the presumption of sanity, the appellant’s initial burden to establish his insanity, when the State has the burden to rebut evidence of insanity, reasonable doubt, and as to the possible verdicts of not guilty and not guilty by reason of insanity. Yet the jury found the accused neither not guilty nor not guilty by reason of insanity.

We will not speculate as to the jury’s actual verdict; it speaks for itself. The appellant was found “guilty of all counts beyond a reasonable doubt, but mentally ill.” To reach this finding under the trial court’s instruction, which rightfully or wrongfully became the law for the jury to follow, the jury had to find by proof beyond a reasonable doubt that the defendant was guilty of all charged offenses. The ultimate burden of proof needed to warrant appellant’s conviction properly and unequivocally was placed on the State. The jury could not have reached its verdict if it harbored any reasonable doubt of the defendant’s guilt.

Mental illness was not an element of the underlying offenses of which appellant was charged. Thus, the-guilty but mentally ill verdict, in this instance, merely allowed for an accommodation to the mental health needs of the appellant who was found guilty, but was laboring under a mental illness which fell short of the legal defenses of insanity and delusional compulsion promulgated in OCGA §§ 16-3-2 and 16-3-3. Compare Spivey v. State, supra at 189 with Kirkland v. State, 166 Ga. App. 478, 482 (304 SE2d 561).

Considering the trial court’s instructions to the jury in their totality, we are satisfied that the jury did not find the accused either guilty of the charged crimes or free from delusional compulsion and insanity based on the erroneous charge which is the subject of this particular assignment of error. C.f., Felts v. State, 244 Ga. 503 (3) (260 SE2d 887) (finding any possible error harmless after viewing the jury instructions as a whole). Further, considering this particular error “in the context of the entire case,” we conclude that it is “highly probable” that the error did not contribute to the jury’s verdict of guilty but mentally ill. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (adopting the “highly probable test” as a test for determining whether a nonconstitutional error was harmful in a criminal case). Thus, this assignment of error is without merit.

4. Appellant’s final enumerated error is that the guilty but mentally ill verdict is in itself a denial of due process; thus the trial court erred in entering judgment and sentencing on such a verdict. Specifically, appellant asserts that this verdict subverts and disregards the mens rea requirement. Appellant’s argument is not persuasive. As previously indicated, the guilty but mentally ill verdict merely “allows for accommodation to the mental health needs of those defendants who are guilty, but have a mental disorder which falls short of insanity” and delusional compulsion. (Emphasis supplied.) Spivey v. State, supra at 189. Accordingly, the statute authorizing this verdict neither was intended to nor does subvert or disregard the mens rea requirement of criminal law. Further, the definition of “mentally ill” is not unconstitutionally vague and thus lacking in due process. Wilson v. State, 257 Ga. 444 (12) (359 SE2d 891); Worthy v. State, 253 Ga. 661 (6) (324 SE2d 431); Cooper v. State, 253 Ga. 736 (5) (325 SE2d 137). Accordingly, “[t]he creation of the category of guilty but mentally ill is not unconstitutional for any reason of which this defendant may complain.” Keener v. State, 254 Ga. 699, 702 (334 SE2d 175).

Decided January 12, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Elisabeth MacNamara, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75437.
    CUNNINGHAM v. THE STATE.
    (364 SE2d 898)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with rape and aggravated sodomy. The jury returned a verdict of guilty on each count. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the guilty verdicts.

1. The trial court’s giving of an “Allen charge” after the jury had been deliberating for almost six hours is enumerated as error. “The decision of whether to give a jury in disagreement the Allen charge is generally left to the discretion of the trial judge, [cit.], and since the jury here specifically requested guidance as to what procedure to follow, the trial court did not abuse its discretion.” Curry v. State, 175 Ga. App. 758, 759 (3) (334 SE2d 356) (1985). The charge that was given by the trial court was substantially that which was sanctioned by our Supreme Court in Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974). “The charge given below instructed the jurors that their verdict ‘must be the verdict of each juror and not a mere acquiescence of the jurors in order to reach agreement.’ The language of the charge itself was not coercive and . . . did not place undue pressure on the members to abandon their convictions.” Black v. State, 255 Ga. 668, 671 (2) (341 SE2d 436) (1986). Accordingly, this enumeration is without merit.

2. When the jury had still failed to reach a verdict after deliberating for more than seven hours, appellant moved for a mistrial. The denial of that motion is enumerated as error.

“The decisive factor [in the determination to grant or to deny a mistrial] is not the length of deliberation but the inability of the jury to agree on a verdict. [Cits.]” Phillips v. State, 238 Ga. 632, 634 (235 SE2d 12) (1977). Here, the jury never indicated that it was “helplessly” deadlocked or that any of its non-unanimous votes was “final.” To the contrary, on each occasion that the jury in the present case indicated that a unanimous decision had not yet been reached, it requested either additional instruction or additional time for deliberations. Under these circumstances, the trial court did not err in failing to declare a mistrial. See generally Albert v. State, 180 Ga. App. 779, 786 (8) (350 SE2d 490) (1986).

Decided January 12, 1988.

Alvin C. McDougald, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Sharon T. Ratley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.