text:
    A90A0337.
    SMITH v. THE STATE.
    (393 SE2d 743)
   Sognier, Judge.

Joseph Smith was convicted by a jury on four counts of burglary, three counts of aggravated assault, two counts of rape, and two counts of aggravated sodomy. He filed this appeal from the judgment entered on the verdict.

1. Appellant’s first enumeration of error concerns the trial court’s denial of his motion to suppress custodial statements he gave shortly after his arrest. He contends the statements were inadmissible because they were taken after he invoked his right to counsel.

The record reveals that appellant was arrested in Americus on the night of December 1, 1988 after being identified by one of the assault and burglary victims. Captain James Hicks took appellant to an interview room at the Americus police station, where Detective J. J. Millege read appellant his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Hicks testified that when appellant responded, “I might need an attorney,” Hicks turned the case over to Millege and left the room. According to the testimony of Millege and Detective Ernest Mansfield, who remained in the room, appellant then stated that he had mentioned obtaining counsel only because he was uncomfortable with Hicks. Millege stated he then explained the charges that had been filed against appellant, and appellant then asked him, “What would happen if I just said I wanted a lawyer?” After Millege responded that he would be booked on the charges because the police already had sufficient evidence, appellant decided “I may as well talk.” Millege again advised appellant of his Miranda rights, obtained appellant’s signature on a rights waiver form, and then took a tape recorded statement from him. Mansfield testified that he had left the interview room during the second time Millege advised appellant of his rights, and that when he returned and discovered that appellant had begun to give a statement, he interrupted and asked appellant whether he had changed his mind about procuring counsel, and appellant responded, “I don’t need a lawyer. It is all down hill anyway now.” (This exchange with Mansfield was on the portion of the tape recording that was played for the jury.) Both detectives testified that appellant was questioned twice the next day, that each time he was informed of his rights and signed waiver forms, and that he did not mention obtaining counsel. Appellant testified that he told Hicks he wanted a lawyer, but that the detectives continued to talk to him about the charges, and that he did not understand he could refuse to talk to them without counsel present.

“An accused in custody, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless he validly waives his earlier request for the assistance of counsel. . . . First, courts must determine whether the accused actually invoked his right to counsel. Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” (Citations and punctuation omitted.) Hall v. State, 255 Ga. 267, 269-270 (336 SE2d 812) (1985). If an equivocal or ambiguous request for counsel is made, further questioning must be limited to clarifying that request, and interrogation may not be resumed unless it has been clarified that the accused has made an effective waiver of his right to counsel. Id. at 272-273.

After a careful review of the transcript, we are convinced that any ambiguity or equivocation in appellant’s statements regarding counsel was clarified (1) when Millege stopped interrogating appellant and spoke only to explain the upcoming procedures in response to appellant’s questions and then again advised appellant of his rights and obtained a written waiver; and (2) when Mansfield inquired whether appellant had changed his mind about obtaining counsel. See id. at 274-275 (3). There is no evidence the officers engaged in subterfuge or coercive tactics. See id. at 275 (3). Although appellant testified he did not fully understand his rights, the waiver forms he signed explained those rights in clear and concise language, and there is no evidence appellant is unable to read or was impaired by drugs or alcohol. Accordingly, we hold the trial court did not err by denying the motion to suppress and admitting the statements into evidence. See id.

2. Appellant maintains the evidence was insufficient to support the guilty verdicts on counts 1-9 (all but the burglary and aggravated assault of M. R., the victim who positively identified appellant to the police and at trial) because his confessions were not corroborated by other evidence as required by OCGA § 24-3-53.

The evidence adduced at trial established that appellant, his head covered with a stocking, entered the home of M. R. and hid in a closet until she returned home. He then threatened her with a knife and removed her pants and underwear, but she was able to convince him to give her the knife. She agreed to meet him at a local store the next night. She then alerted the police, who equipped her with a body microphone and arrested appellant when she saw him at the designated meeting spot and identified him as her attacker. After the detectives began questioning appellant regarding other similar crimes in the area, he revealed his role in three prior incidents: entering a mobile home at Briar Cliff Trailer Park and raping the woman who lived there; entering a home on Harris Street, waking the woman he found sleeping on the floor next to a small child, and then running out when the woman screamed; and breaking into a house on Ridge-way Drive, brandishing a toy gun before the female occupant, and then raping her.

At trial, N. D. testified that on the night of April 1, 1988, she was asleep in the mobile home she shared with her mother at Briar Cliff Trailer Park when a man entered her bedroom, forced her onto the bed, and raped and orally sodomized her. G. T. stated that on the night of October 8, 1988, she and her young son had fallen asleep on the den floor of their Harris Street home when a man with a stocking over his head entered the house. The intruder pressed against her side what appeared to be a gun. She struggled with him, and he ran out the back door when she screamed for her older son. G. L. testified that she was in bed in her Ridgeway Drive house on the night of October 23, 1988 when she awoke to find a man with a stocking on his head standing over her with a gun. After threatening to kill her if she screamed, the perpetrator raped and orally sodomized her.

“[A] conviction may be had on a confession although corroborated only by proof of the corpus delicti. [Cit.] The amount of evidence necessary to corroborate a confession is for the jury to decide, as it may consider the confession along with other facts and circumstances independent and separate from it in determining whether or not the corpus delicti has been established to their satisfaction. [Cit.]” Nation v. State, 180 Ga. App. 460, 461 (1) (349 SE2d 479) (1986). Here, the testimony of the victims established the corpus delicti of each crime, thereby providing the requisite corroboration. See id. We have reviewed the evidence in its entirety and find it sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 1, 1990.

Walter S. Chew, Jr., for appellant.

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

3. Appellant next contends the trial court erred by allowing Millege to play a portion of appellant’s tape recorded statement and read the accompanying transcript to the jury without providing the transcript to the jury. The record, however, shows that the recording and transcript were introduced at the request of appellant’s counsel, who then made no further request and interposed no objection. Consequently, we find no error.

4. Appellant’s final claim of error is that the court’s charge on voluntariness of custodial statements was inadequate because the jury was not told to consider the totality of the circumstances. The record reveals that the trial judge gave an extensive explanation of the Miranda rights of an accused, the steps to be taken if the accused requests counsel, and the elements to be considered in determining the voluntariness of any subsequent statement. While the charge did not include the words “totality of the circumstances,” we find the court’s description thoroughly covered the factors to be considered in weighing the totality of the circumstances and clearly informed the jurors that they should address each factor. Contrary to appellant’s argument, we do not find that the specific factors set forth in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976) were required to be given to the jury because those apply to juveniles who give statements outside the presence of their parents. Given that the record does not indicate that appellant requested a voluntariness charge, nor did he either interpose or reserve an objection to the court’s charge, and we find no error clearly harmful as a matter of law, this enumeration is without merit. Byrd v. State, 156 Ga. App. 522-523 (2) (275 SE2d 108) (1980).

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0514.
    CARTER v. THE STATE.
    (393 SE2d 746)
   Sognier, Judge.

Shelby Carter was convicted on two counts of child molestation, two counts of aggravated child molestation, and one count of cruelty to children for incidents involving his eight-year-old son and eleven-year-old stepdaughter. He appeals.

Decided May 1, 1990.

Tyron C. Elliott, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

1. Appellant enumerates as error the trial court’s decision to allow a twenty-minute recess during the State’s examination of his son, during which the prosecutor conferred with the witness privately. The transcript reveals that at trial appellant interposed no objection to either the recess or the conference, thereby waiving his right to object on appeal. Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989). Further, given that the State is permitted to confer privately with a witness before the witness begins testifying, Ross v. State, 254 Ga. 22, 28 (a) (326 SE2d 194) (1985), we find no abuse of discretion in the trial court’s decision to allow the conference at issue, especially given the tender age of the victim, the nature of the charges, and the child’s admitted fear of appellant. To the extent that the witness altered his testimony after the recess, the credibility of his testimony was for the jury to determine. OCGA § 24-9-80. We find no error.

2. In two enumerations appellant contends the trial court erred by finding three juvenile witnesses competent to testify. Specifically, he maintains that the court improperly applied OCGA § 24-9-5 (b) (authorizing admission of testimony by child who is victim of or witness to any crime) as the standard for admission of the witnesses’ testimony, and that the witnesses were allowed to testify without a clear demonstration that they understood the need to tell the truth.

The transcript reveals that the trial court examined each witness at the beginning of his or her testimony to ascertain that the child knew the difference between telling the truth and telling a lie and understood why telling the truth was better than telling a falsehood, and obtained from each witness a promise to tell the truth in response to questions from counsel. This examination by the trial court “was sufficient to determine that [the witnesses] understood the nature of an oath, and it was not an abuse of discretion to allow [them] to testify. [Cits.]” Pendergrass v. State, 168 Ga. App. 190 (1) (308 SE2d 585) (1983). Appellant’s contention that the trial court erroneously relied on OCGA § 24-9-5 (b) is without merit, as that provision became effective on April 19, 1989 (Ga. L. 1989, p. 1639, §§ 1, 3), and appellant was tried in May 1989.

Judgment affirmed.

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


text:
    A90A0550.
    MARTINEZ-RODRIGUEZ v. THE STATE.
    (393 SE2d 748)
   Sognier, Judge.

Gregorio Martinez-Rodriguez was convicted of trafficking in cocaine, and he appeals.

The record reveals that on October 20, 1988, Agent Robert Sousa of the Drug Enforcement Agency was working at the Atlanta Airport and observed a person later identified as appellant disembark from a flight from Miami, a known drug source city. Sousa testified that his attention was drawn by appellant’s disheveled appearance, his loose shirttails, and the fact that he was walking “slightly faster than normal” and looking over his shoulder repeatedly as though suspecting he was being followed. Sousa averred that he followed appellant and approached him as appellant walked to a car parked outside the terminal; that he displayed his credentials, and asked to see appellant’s ticket, and that after replying “my ticket?” appellant handed Sousa his airplane ticket. Sousa testified he then asked appellant his name and for identification, to which appellant responded appropriately, and then told appellant he was a narcotics agent looking for drugs, and asked permission to search appellant’s person and the bag he was carrying.

At that point, according to Sousa’s testimony, appellant became extremely nervous and stated that he did not understand. Speaking English, Sousa then asked appellant to call over his friend in the parked car to translate for them, and appellant did so. Although Sousa did not speak Spanish, he presumed that from that point, everything he said was being translated and repeated in Spanish. Sousa testified that he again asked appellant if he could search the bag, and that appellant, after looking at Sousa and saying “the bag?” said “I don’t care.” After inquiring if appellant would prefer to be searched there on the sidewalk or someplace more private, and hearing appellant respond “[i]t doesn’t matter,” the agent testified they walked to a more private area, and upon inquiring again if it was all right to search the bag and seeing appellant nod affirmatively, he searched the bag and, under some clothing, found two tin boxes containing white powder later identified as 1,042 grams of 52 percent cocaine.

Sousa testified that appellant was then placed under arrest and taken to the DEA office at the airport, where he was advised of his rights and indicated that he understood them, and a conversation in English ensued between appellant and Sousa in the presence of several other DEA agents, in which appellant was appropriately responsive to all questions, indicating that he knew why he had been arrested (for “the cocaine”), and giving information about his occupation, how long he had been in this country, and how much money he had on his person.

Appellant filed a motion to suppress the evidence obtained in the search of his bag on the basis that he did not speak or understand English sufficiently to enable him to provide knowing and voluntary consent to the search. After hearing evidence, the trial court denied the motion. A bench trial was held thereafter at which the evidence presented by the State at the hearing on the motion to suppress was stipulated, and appellant was convicted.

1. Appellant contends the trial court erred by excluding testimony of his expert witness at trial, Dr. June Laval, an associate professor of modern languages at Mercer University Atlanta with special training in linguistics and Spanish, and by limiting her testimony in support of his renewed motion to suppress.

We do not agree with appellant that any testimony from Dr. Laval was excluded. Although the trial court expressed some skepticism about Dr. Laval’s ability to ascertain whether someone truly could not understand English or was merely feigning a lack of understanding, the record reveals that he did allow her to testify concerning the details of her examination of appellant and the conclusions she drew. Accordingly, we find no error.

2. Although appellant argues that the motion to suppress should have been granted because the State failed to meet its burden of showing that his consent was freely and voluntarily given, see Bumper v. North Carolina, 391 U. S. 543, 548 (88 SC 1788, 20 LE2d 797) (1968), the denial of the motion to suppress was not enumerated as error, and an enumeration of error may not be enlarged by brief on appeal to cover issues not enumerated. Nobles v. State, 191 Ga. App. 594, 599 (6) (382 SE2d 637) (1989).

3. We find appellant’s second enumeration, in which he asserts the trial court erred by holding that he should have produced evidence that he did not consent to the search, similarly unsupported by the record. The trial court remarked only that the State’s evidence regarding consent was unrebutted, and stated that there was evidence before him that appellant did consent, and no direct evidence that he did not consent. The State proffered the testimony of Agent Sousa to show that appellant did consent to the search, and that evidence was unrebutted by appellant. Although there was some evidence that appellant did not understand English well, there was also evidence that he did. The question of whether consent was given is a fact question, and because there was competent evidence to support the trial court’s ruling on this question, we will not disturb it. Voight v. State, 169 Ga. App. 653, 654-655 (314 SE2d 487) (1984).

Decided May 1, 1990.

M. Randall Peek, for appellant.

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

4. Appellant contends the trial court erred by refusing to consider appellant’s renewed motion to suppress at the beginning of the bench trial. This enumeration is without merit. Although, as appellant indicates, it is perfectly proper to renew such a motion and to submit additional evidence for the court’s consideration on the issue, see Chastain v. State, 158 Ga. App. 654 (281 SE2d 627) (1981), the decision whether to set aside its previous order denying the motion to suppress remains entirely in the discretion of the trial court. Id. at 655. The trial court permitted appellant to present the testimony of Dr. Laval, which had not been presented at the motion hearing (see Division 1, supra), and thus we find no support in the record for appellant’s contention that the trial court refused to consider the renewed motion. Since there was evidence to support it, we find no abuse of the trial court’s discretion in its denial of the renewed motion. “ ‘(U)nless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. (Cits.)’ [Cit.]” Durden v. State, 187 Ga. App. 433, 434 (2) (370 SE2d 528) (1988).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A0724.
    ROWE v. ROWE.
    (393 SE2d 750)
   Birdsong, Judge.

Appellant Amelia Rowe’s application for discretionary appeal was granted, and she subsequently filed this appeal of the superior court’s order granting permanent custody of her son to his natural father, appellee Homer Cecil Rowe, Jr. Held:

1. Facts asserted in briefs but not supported by evidence of record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223). Further, “ ‘a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.’ ” Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33) (1990). Accordingly, we will not consider any matters attached to the briefs of the parties that are not contained within the official record and transcripts.

2. Appellant asserts that the trial court erred in permitting statements purportedly made by appellant’s psychiatrist to be admitted. The statements alluded to were presented as part of appellee’s opening statement at a hearing before the judge alone. The record reflects that the evidence referred to in the opening statement subsequently was neither offered nor admitted into evidence.

Pretermitting the question of whether the statements were admissible or in violation of the psychiatrist-patient privilege is the fact that the statements were not admitted at all. The issue thus actually presented is whether it constituted reversible error to allow appellee to make reference to the statements in his opening argument in a trial without jury. We hold that it was not.

“In an opening statement counsel may state to the jury what he expects to prove.” Seaboard Coast Line R. Co. v. Zeigler, 120 Ga. App. 276 (1) (a) (170 SE2d 60). However, “[h]e should be confined to matters of proof admissible under the rules of evidence.” Id. The reason for this rule is to preclude the possibility of tainting the jury by exposing them to inadmissible evidence. While counsel should comply with this general rule when making an opening statement in a trial without jury, it is readily apparent that the potential for prejudice created by referring to inadmissible evidence in an opening statement in a trial without jury is not nearly as great as when done before a jury. The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff. See Whiteley v. State, 188 Ga. App. 129, 131 (372 SE2d 296). The record contains nothing to rebut this presumption. We will not presume the trial court committed error where that fact does not affirmatively appear in the record. Smith v. Manley, 96 Ga. App. 158, 161 (99 SE2d 534).

Moreover, we are satisfied that even if inadmissible evidence was erroneously presented in the opening statement, such error, if any, would be harmless under the attendant circumstances. OCGA § 9-11-61.

3. Appellant asserts that the trial court erred in not forbidding that the Lanier County Department of Family & Children’s Services have access to the deposition given by the appellant’s psychiatrist.

First, we find nothing in the record indicating that this specific issue was ever timely raised before the trial court. Thus, this issue is not preserved for appellate review, and presents no question requiring appellate adjudication. Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783-784 (321 SE2d 110).

Secondly, appellant has abandoned any argument that the information contained in the home study report created a fair risk of harm by improperly influencing the holding of the trial judge. By neither arguing that assertion or citing authority in support thereof in her brief, appellant has abandoned the issue pursuant to Court of Appeals Rule 15 (c). Moreover, such argument would be beyond the scope of the enumeration of error, and on appeal “existing enumerations of error ‘cannot be enlarged to include issues not made therein.’ ” Thomason v. Times-Journal, 190 Ga. App. 601 (3) (379 SE2d 551).

Finally, assuming without deciding that the trial court had access to the information contained in the home study before reaching its decision, nevertheless for the reasons stated in Division 2, above, we find that the error, if any, was harmless.

4. In view of the disposition directed in this case, appellant’s enumeration of error number 3 is rendered moot. Before ordering further disposition in this child custody case, the trial court should consider all admissible matters contained in the home studies, after first providing the right of notice, confrontation and cross-examination provided to the parties by OCGA § 19-9-4 (a).

5. Appellant asserts that the trial court erred in awarding permanent custody of the child, under OCGA § 19-9-1 (a), because the divorce action was still pending and a final judgment and decree of divorce had not been entered.

Construing Code § 30-127, the predecessor statute to OCGA § 19-9-1, the Supreme Court has held: “ ‘[T]he court can make a final disposition of the minor children of the parties only when a divorce is granted. [Cit.] This power is incident to the divorce proceeding, and is exercisable only when a valid divorce is granted between the parties. . . . [S]ince no valid divorce was granted . . . the court was without power to fix custody and control.’ ” Griffis v. Griffis, 229 Ga. 587 (2) (193 SE2d 620); Harmon v. Harmon, 209 Ga. 474 (4) (74 SE2d 75); compare Keppel v. Keppel, 92 Ga. 506 (17 SE 976); see Brightwell v. Brightwell, 161 Ga. 89 (129 SE 658). However, the trial court can make temporary dispositions of the child during the period when the divorce proceeding is pending. Compare Brinson v. Jenkins, 207 Ga. 218 (60 SE2d 440) with Black v. Black, 165 Ga. 243 (4), 245 (140 SE 364) and Cason v. Cason, 158 Ga. 395 (3) (123 SE 713). Subsequent to the above cases, the legislature has had occasion to amend OCGA § 19-9-1 (a), but it did not act to overturn this precedent. For example, in 1983 the legislature amended OCGA § 19-9-1 (a) but only “so as to provide for temporary child custody orders under certain conditions” and for certain other unrelated purposes. (Emphasis supplied.) Ga. L. 1983, p. 632. In particular, the legislative history of the Act reflects that by amending the second sentence in OCGA § 19-9-1 (a), the legislature intended only to provide authority for the issuance of temporary and not permanent custody orders in those circumstances where “an application for divorce is pending.” See generally Ga. L. 1983, p. 632.

Accordingly, we find that the trial court erred in entering a “Permanent Order Of Custody” before divorce was granted. This order must be set aside, and we will remand the case back to the trial court to determine whether, pending resolution of the divorce application, a temporary order pertaining to the disposition of the child is necessary.

Decided May 1, 1990.

Griner & Alderman, Elsie H. Griner, for appellant.

George M. Saliba II, for appellee.

In the ultimate resolution of this matter, the trial court may look into all the circumstances, including the state of health of the parents, and exercise its discretion to “determine solely what is for the best interest of the child” and what will best promote his welfare and happiness, and make its determinations accordingly. (Emphasis supplied.) OCGA § 19-9-3 (a); see generally OCGA § 19-9-1 (a).

In attempting to reach a determination regarding the best interest of the child, the superior court has the power, in any proceeding where the issue of child custody is contested, to compel either or both parents to submit to examination and evaluation by a court-appointed clinical psychologist or psychiatrist. See generally OCGA §§ 15-6-8 (6); 15-6-9 (8); compare In the Interest of E. P. N., 193 Ga. App. 742 (388 SE2d 903); see also OCGA § 19-9-3 (a). The mental health of the parents is an inherent and vital part of their overall “state of health,” within the meaning of OCGA § 19-9-4 (a), and can be a critical factor in determining the best interest of the child.

Our state constitution provides that “[protection to person and property is the paramount duty of government.” Ga. Const. of 1983, Art. I, Sec. I, Par. II. “This constitutional right of protection extends equally to children as well as to adults” (In the Interest of E. P. N., supra at 749 (2) (c)), and provides further basis for the discretionary power of the trial court to compel either or both parents, where the issue of custody is contested, to submit to psychological or psychiatric examination and evaluation when deemed necessary to a determination concerning the best interest of the child.

Judgment reversed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A90A0017, A90A0209.
    MILAM v. ATTAWAY et al.; and vice versa.
    (393 SE2d 753)
   Cooper, Judge.

This appeal (Case No. A90A0017) and cross-appeal (Case No. A90A0209) arise out of a trespass action brought by The 344 Gwinnett County Joint Venture (the “Joint Venture”), appellee/cross-appellant herein, against appellant, Douglas Milam. Susan Milam, appellant’s wife and record owner of the property, was added as a party-defendant and is cross-appellee herein.

Appellee, contending that appellant trespassed by constructing a roadway across its property to the adjacent property owned by crossappellee; that no road had previously existed thereon; and that appellant further trespassed by improving and widening a drainage ditch across the property, brought this action seeking damages and an injunction. Appellant answered by asserting that a private right-of-way had existed on the property and that appellant had gained private and prescriptive rights to the right-of-way. Subsequently, both parties’ pleadings were amended to assert counter “Yost v. Torok” claims for attorney fees and expenses of litigation. See Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The court issued an interlocutory order allowing appellant’s continued use of the disputed roadway for access, allowing appellant to place gravel along the disputed roadway upon posting a cash bond with the court, and restraining all further use and improvement of appellee’s property. A consolidated pre-trial order was agreed to by the parties and, after a trial, a jury verdict was rendered for appellee against both defendants in the amount of $3,984.75 in damages and $21,015.25 in expenses of litigation, and no award was made for punitive damages. The trial court rendered judgment on the verdict and further ordered that “there is no road, right-of-way or easement, public or private” across appellee’s property. Appellant’s motion for a new trial was denied, and the motion for judgment notwithstanding the verdict was granted as to cross-appellee but denied as to appellant. In the main appeal, appellant asserts several enumerations of error regarding the denial of j.n.o.v. by the trial court as to appellant, the award of attorney fees, charges made to the jury, refusal to admit certain evidence and language of the final order of the trial court. In its cross-appeal, appellee/cross-appellant asserts an enumeration of error regarding the grant of j.n.o.v. by the trial court as to cross-appellee.

I.

Case No. A90A0017

1. Appellant first enumerates error in the trial court’s denial of the motion for j.n.o.v. as to appellant. “ ‘In reviewing the overruling of motions for . . . judgment n.o.v., the appropriate standard to be utilized is the any evidence test. [Cits.]’ ‘Further, as regards the review of an order from a motion for new trial, “(o)ur responsibility on appeal is not to weigh the evidence and give a de novo opinion on where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to authorize the trial court’s judgment.” [Cit.]’ ” Orkin Exterminating Co. v. Flowers, 187 Ga. App. 270 (1) (370 SE2d 29) (1988). We have carefully reviewed the trial transcript, depositions and evidence submitted on the damages awarded to appellee. The appellee introduced several witnesses who testified that no roadway existed prior to appellant’s work on the property. Exhibits and documentary evidence were introduced to support appellee’s case. Appellee’s witness testified to the jury that no notice was given to appellant that the roadway was to be closed because appellee did not consider a roadway to exist. Contrary to appellant’s assertions, the effect of the interlocutory order was explained to the jury by the court. Issues of credibility are for the jury to determine. Ailion v. Wade, 190 Ga. App. 151 (4) (378 SE2d 507) (1989). Therefore, as to the damages awarded to appellee, we find ample evidence to support the jury’s verdict and the trial court did not err in denying the motions for new trial and j.n.o.v. as to such damage award.

2. In his second enumeration, appellant argues that the trial court erred in failing to grant a j.n.o.v. as to the award of attorney fees and expenses. We agree and reverse. The consolidated pre-trial order entered into by the parties, which controls the issues to be argued at trial (Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481 (2) (249 SE2d 286) (1978)), states that the jury is to determine “the amount of damages to be awarded as a result of the stubborn litigiousness of the defendants, pursuant to the Plaintiffs’ “Yost v. Torok” claim (emphasis supplied).” The order also stated that the appellees sought $50,000 in damages in their counter “Yost v. Torok” claim. It is clear in the pre-trial order that the damages for stubborn litigiousness were sought to compensate appellee for defending against the appellant’s “Yost” claim, and that appellees’ prayer for fees and expenses comprised their own “Yost” claim. The trial transcript reveals that the appellee waived its own “Yost” claim in open court and that no further hearings on either “Yost” claim were conducted. Notwithstanding this waiver, the jury was charged as to attorney fees without objection from appellant. However, since the only basis for the stubborn litigiousness asserted by appellee was appellant’s “Yost” claim, which was never litigated, and since appellee’s counter “Yost” claim was waived, there is no evidence to support the award of attorney fees. “ ‘When . . . the only asserted basis for a recovery of attorney fees is . . . stubborn litigiousness . . . , there is not “any evidence” to support an award pursuant to [OCGA § 13-6-11] if a bona fide controversy clearly exists between the parties.’ ” Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (1) (365 SE2d 540) (1988). From our review of the record, genuine disputes on trespass, prescription and existence of a roadway clearly existed between the parties. “In our opinion, the evidence does not authorize a finding by the jury that the defense of the action brought [constituted stubborn litigiousness]. That is, the evidence shows a reasonable defense, a bona fide controversy, as a matter of law. [Cits.]” Id. Therefore, the portion of the judgment awarding attorney fees and expenses of litigation is reversed.

3. Error is asserted with regard to several jury charges in the third enumeration. There was no objection made to the court’s failure to charge appellant’s request regarding OCGA § 44-9-56 (notice required if a private roadway is closed); consequently, the issue was not preserved for appeal. Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (4) (346 SE2d 842) (1986). Further, the failure to give such instruction did not work a gross injustice so as to deprive appellant of a fair trial, pursuant to OCGA § 5-5-24 (c), especially since the existence of the roadway was continually disputed at trial. Second, appellant’s assertion of error on the court’s prescription charge is without merit. The court’s charge on prescription and tacking was a clear, complete and accurate statement of the law. “A requested charge is properly refused when ‘the principle involved (is) substantially covered in the court’s general charge. . . .’” Shaw v. McDonald’s Restaurants of Ga., 191 Ga. App. 583 (2) (382 SE2d 632) (1989). The issue on attorney fees is addressed in Division 2. Appellant’s requested charge based on C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457 (249 SE2d 281) (1978), was not adjusted to the evidence and properly refused by the court. Fowler v. Gorrell, 148 Ga. App. 573 (2) (a) (251 SE2d 819) (1978). Further, any error was waived since no objection was made.

4. Appellant asserts that error occurred when the trial court refused to admit as evidence a map of the property, even though the pre-trial order stipulated that “maps of the subject property” were to be admitted without proof of authenticity. A colloquy at trial between the trial court and counsel revealed that the court determined the language of the pre-trial order to be too broad and decided that exhibits could not be admitted if opposing counsel could genuinely claim surprise, notwithstanding the language of the order. The interpretation of the pre-trial order was within the discretion of the trial court and the record does not indicate that the discretion was abused. See Ambler v. Archer, 230 Ga. 281, 287-288 (196 SE2d 858) (1973).

5. Appellant’s final enumeration asserts that the trial court erred in formulating the judgment to state that in addition to the monetary awards, no easements or rights-of-way existed on appellee’s property. The trial transcript reveals that appellant’s trial counsel specifically consented to such a judgment in open court. Consequently, this enumeration was not preserved for appeal. See Ennis v. Ennis, 207 Ga. 665 (2) (63 SE2d 887) (1951).

Decided May 2, 1990.

Raiford, Dixon & Thackston, Tyler C. Dixon, for appellant.

Jerry L. Stepp, Weeks & Chandler, Leslie W. Wade, for appellees.

II.

Case No. A90A0209

6. Based upon the holding in Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989), the cross-appellee’s motion to dismiss the cross-appeal is hereby denied.

Cross-appellant’s sole enumeration of error in the cross-appeal that the trial court erred in granting j.n.o.v. as to S. Y. Milam is without merit. Upon review of the record, we find no evidence to support the jury’s verdict that S. Y. Milam trespassed upon cross-appellant’s property as alleged and caused damage thereto. Orkin Exterminating Co., supra at Division 1. Cross-appellant presented no evidence at trial to support the direct liability of S. Y. Milam for the actions alleged, either as a participant in the alleged trespass or under a theory of agency. As a result of our decision herein, it is unnecessary to address the cross-appellee’s argument that venue as to S. Y. Milam was improper.

Judgment affirmed in part, reversed in part in Case No.

A90A0017. Judgment affirmed in Case No. A90A0209.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0029.
    CROY v. THE STATE.
    (393 SE2d 756)
   Cooper, Judge.

Appellant was found guilty by a jury of driving under the influence of alcohol, driving while his license was suspended, attempting to elude a police officer and speeding. He appeals from the denial of his motion for new trial on the ground of newly discovered evidence.

Appellant testified at the motion hearing that he searched diligently prior to trial to locate two other persons who were in the car with him at the time of his arrest to testify that he was not the driver but apparently got into the driver’s seat after the car was wrecked following a police chase. Upon his conviction and release from jail on supersedeas bond he was able to locate these witnesses, one of whom appeared personally at the hearing and the other who provided an affidavit. The trial court found that this was not evidence of which appellant had become aware after trial; that he could have elected to testify in his own behalf at trial and offer the same information; and that such evidence was placed before the jury by means of cross-examination of the arresting officer and extensive closing argument on the subject. The trial court further noted that at his arraignment, appellant’s attorney filed a demand for speedy trial, and thereafter both appellant and his attorney appeared at a pretrial status conference at which time his attorney indicated that the case was ready to proceed to trial. The trial court concluded that appellant had failed to establish two of the six elements necessary to secure a new trial in that the evidence was not newly discovered evidence since he had full knowledge of it at the time of trial, and his efforts to locate the witnesses prior to trial showed a want of due diligence.

Decided May 2, 1990.

Donald T. Wells, Jr., for appellant.

“It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. [Cits.] All six requirements must be complied with to secure a new trial. [Cits.]” (Citations and punctuation omitted.) Westbrook v. State, 186 Ga. App. 493 (4) (368 SE2d 131) (1988). “Furthermore, motions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless his discretion is abused. [Cits.]” Jefferson v. State, 157 Ga. App. 324 (1) (277 SE2d 317) (1981).

Appellant knew the names of both witnesses prior to trial but did not issue subpoenas to compel their appearance nor did he request a continuance for additional time to locate the witnesses. To the contrary, appellant demanded a speedy trial and answered ready when the case was called to trial. Then, within three days of his release on bond, appellant was able to locate the witness who provided the live testimony at the hearing on the motion. Under such circumstances, the trial court did not abuse its discretion in denying the motion for new trial. Curtiss v. State, 165 Ga. App. 464 (302 SE2d 1) (1983). Appellant’s reliance on Bell v. State, 227 Ga. 800 (183 SE2d 357) (1971) is misplaced.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Ken Stula, Solicitor, for appellee.


text:
    A90A0174.
    HOLLINGSWORTH v. THE STATE.
    (394 SE2d 131)
    Decided May 2, 1990.

      David E. Morgan III, for appellant.

      John C. Pridgen, District Attorney, James E. Turk, Assistant

      District Attorney, for appellee.
   Cooper, Judge.

Appellant was convicted of trafficking in cocaine, possession of marijuana and possession of a firearm during the commission of a felony. The trial court denied his motion for new trial and this appeal followed.

The record reveals that appellant was stopped and issued a speeding citation by a Crisp County sheriffs deputy for driving 80 mph in a 65 mph zone on Interstate 75. The deputy testified that appellant appeared nervous so he requested permission to search the car, explaining that appellant could withdraw his consent and stop the search at any time. Appellant consented and the deputy found a loaded 9 mm pistol and a pair of handcuffs inside the car. The deputy handed appellant the car keys and asked that appellant open the trunk for further search. Appellant did not object. The trunk contained another pistol, two loaded clips, boxes of ammunition and two plastic bags of cocaine. Appellant was placed under arrest and patted down by a second officer who found marijuana in appellant’s coat pocket. The State also introduced evidence of two prior South Carolina convictions of appellant for trafficking in cocaine and distribution of cocaine.

1. Appellant enumerates the general grounds. The evidence construed most strongly in favor of the guilty verdict was sufficient to authorize a rational trier of fact to find proof of appellant’s guilt of violating OCGA §§ 16-13-31 (a); 16-13-30 and 16-11-106, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hunter v. State, 190 Ga. App. 52 (378 SE2d 338) (1989).

2. Appellant’s remaining enumerations of error are deemed abandoned because they are not supported by argument or citation of authority pursuant to Court of Appeals Rule 15 (c) (2). Pupo v. State, 187 Ga. App. 765 (7) (371 SE2d 219) (1988).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A90A0340.
    EZE v. THE STATE.
    (393 SE2d 758)
   Carley, Chief Judge.

Appellant and a co-defendant were tried before a jury and found guilty of trafficking in cocaine. He appeals from the judgment of conviction and sentence that were entered by the trial court on the jury’s guilty verdict.

1. The cocaine was found in an automobile that the co-defendant was driving and appellant was occupying as the sole passenger. Appellant enumerates the general grounds, urging that the State failed to rebut the presumption that all that is contained within an automobile is presumed to be in the possession of the driver. However, when construed most favorably for the State, the evidence also showed the following: The automobile had been rented by appellant’s wife; appellant gave contradictory statements concerning how the package containing the cocaine came to be in the automobile; and, appellant’s jacket was covering the cocaine.

“Since there was some evidence offered in an attempt to rebut the presumption . . . , there was a question of fact for the jury to resolve.” Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988). The evidence was sufficient for a rational trior of fact to find, beyond a reasonable doubt, that appellant was in knowing possession of the cocaine, either individually or jointly, and thus that he was guilty of the crime charged. Owens v. State, 193 Ga. App. 661 (2) (388 SE2d 712) (1989). See also Allen v. State, 193 Ga. App. 16 (2) (387 SE2d 11) (1989).

2. At the call of the case for trial, appellant moved for a continuance based upon the absence of two defense witnesses. The motion was denied and this ruling is enumerated as error.

“ ‘ “Each of (the) requirements (set forth in OCGA § 17-8-25) must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness.” (Cit.)’ [Cit.]” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986). Appellant concedes that these requirements were not met, but urges that the denial of his motion was nevertheless erroneous because the State had been previously granted five continuances. However, each motion for a continuance must stand or fall on its own merits, and the mere fact that the State had met its burden on five previous occasions does not require a ruling that appellant was relieved of his burden on this occasion. Thus, “there is no basis for holding the denial of the motion was an abuse of the trial court’s discretion. [Cits.]” Curry v. State, supra at 609 (1).

Decided May 2, 1990.

John W. Sherrer, Jr., for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A0565.
    BLANE v. THE STATE.
    (393 SE2d 759)
   Sognier, Judge.

Robert Blane was convicted of DUI, and he appeals from the judgment entered on the conviction.

1. In three enumerations of error appellant contends the trial court erred by allowing the State to present evidence of a prior DUI conviction entered against him five years earlier. Evidence was adduced that at the time of the prior crime, appellant was stopped by a police officer late at night after he pulled into the road in front of the officer’s car. The officer arrested appellant after he smelled alcohol on appellant’s breath and administered field sobriety tests. In the incident at bar, appellant was stopped late at night after a police officer observed him speeding and weaving across the centerline. The officer testified that appellant smelled of alcohol and failed several field sobriety tests.

As a general rule, in a criminal trial “evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. [Cits.]” State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). However, provided the State proves the defendant was the perpetrator of the prior act and there is “ ‘sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter, [cit.] . . . testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. (Cits.)’ [Cit.]” (Footnote omitted.) Id. at 655.

In the case at bar, we find sufficient similarity between the charged crime and the prior offense, as on both occasions appellant was observed driving in an unsafe manner late at night and was shown to be driving under the influence of alcohol. Accordingly, we find the evidence of the prior DUI was admissible to show course of conduct. Kilgore v. State, 176 Ga. App. 121 (1) (335 SE2d 465) (1985). Although the lapse in time between the prior offense and the instant charge is an important factor to be weighed in determining the admissibility of the challenged evidence, it is not determinative, Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975), but “is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” Oller v. State, 187 Ga. App. 818, 820 (371 SE2d 455) (1988). We find no abuse of discretion in the trial court’s decision to admit evidence of a similar crime occurring five years earlier. See Campbell, supra.

Decided May 2, 1990.

Richard A. Coleman, for appellant.

James L. Webb, Solicitor, Elizabeth W. Morn, Helen A. Roan, R. Lee O’Brien, Jr., Assistant Solicitors, for appellee.

2. Appellant also maintains, without citation of authority, that evidence of the prior DUI conviction should not have been considered during either the trial or the sentencing hearing because the earlier judgment was entered in Marietta Municipal Court, which had no jurisdiction over a state offense, and thus the judgment was void on its face. Since no evidence was adduced at trial indicating which court entered the previous judgment against appellant, and there is no transcript of the sentencing hearing in the record, there is nothing for this court to review. See Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988). “ ‘We will not presume error from a silent record. The defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. [Cit.]’ [Cit.]” Id.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0248.
    TERRY v. THE STATE.
    (394 SE2d 132)
   McMurray, Presiding Judge.

Defendant was convicted of two counts of aggravated assault (assault with a deadly weapon) and criminal damage to property in the second degree. Following the denial of his motion for a new trial, defendant appeals. Held:

1. Several persons testified that defendant fired shots at the victims (defendant’s brother-in-law and the brother-in-law’s fiancee) and the victims’ automobiles and residence. The victims testified that they feared for their lives. One of the victims testified that he expended $758 to repair one of the automobiles involved in the shooting. Pictures of the automobiles and the victims’ residence were admitted in evidence. This evidence adequately supports the aggravated assault and criminal damage to property in the second degree convictions under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Roberson v. State, 186 Ga. App. 808, 809 (1) (368 SE2d 568); Holbrook v. State, 168 Ga. App. 380 (308 SE2d 869).

2. The trial court did not err in permitting testimony concerning threats which defendant made to his estranged wife and mother-in-law during the early morning hours on the day in question. The threats were logically connected to the aggravated assaults upon defendant’s brother-in-law and the brother-in-law’s fiancee “in that they were part of a crime spree, showing a course of conduct which led to the crime for which the [defendant] was indicted and convicted. [Cits.]” Lobdell v. State, 256 Ga. 769, 772 (2) (353 SE2d 799).

3. Over defendant’s “hearsay” objection, the trial court permitted one of the victims to testify that he obtained two estimates to repair his automobile and that the estimates exceeded $500. (The trial court did not permit the written estimates to be introduced in evidence.) Assuming, arguendo, the trial court erred in permitting the victim to testify about the estimates, we find no harm requiring reversal in view of the victim’s testimony (see Division 1) that he ultimately expended more than $500 to repair his automobile. See McConnell v. State, 235 Ga. 366, 367 (220 SE2d 5). See also Harden v. Drost, 156 Ga. App. 363, 364 (1) (274 SE2d 748).

4. Defendant contends the trial court erred in refusing to permit him to introduce an out-of-court statement for impeachment purposes. This contention is without merit. Although the statement was ruled inadmissible for purposes of impeachment, it was ruled admissible to explain defendant’s conduct. Defendant cannot complain that the evidence was admitted under a rationale different from the one he proposed.

5. We will not entertain defendant’s contention that the trial court erred in charging the jury regarding the law of aggravated assault. Asked if he had any objections to the recharge, defendant’s counsel stated he had none. Accordingly, any objection to the charge was waived. Brown v. State, 167 Ga. App. 61, 62 (3), 63 (305 SE2d 870).

6. The trial court did not err in charging the jury that if it believed from the evidence that defendant was guilty beyond a reasonable doubt, it would be its “duty to convict” him. Noggle v. State, 256 Ga. 383, 385 (2) (349 SE2d 175).

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I concur fully in the judgment and in all divisions except Division 4. With regard to Division 4, if the out-of-court statement had been ruled inadmissible for purposes of impeachment as posited by the majority, the majority’s holding in Division 4 would not be correct. However, my review of the record indicates that the trial court did not rule the statement inadmissible for purposes of impeachment. Therefore, there was no error.

Decided May 3, 1990.

R. H. Alexander III, Leigh B. Finlayson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Patsy Y. Porter, Richard E. Hicks, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge. Sognier, Judge,

text:
    A90A0283.
    DOVER v. THE STATE.
    (393 SE2d 760)
   McMurray, Presiding Judge.

Defendant was convicted of violating the “Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act” and for the offense of making a false insurance claim. He was given a 20-year probated sentence for violating the RICO Act and a one-year probated sentence for making a false insurance claim. The sentences were to run concurrently and, as a condition of probation, the trial judge ordered defendant to pay a $7,500 fine and to pay a probation fee of $20 per month. ($6,000 of the $7,500 fine was to be paid as restitution to the Georgia Mutual Insurance Company.) Defendant appealed and his conviction for making a false insurance claim was affirmed, but his conviction for violating Georgia’s RICO Act was reversed. See Dover v. State, 192 Ga. App. 429, 432 (2) (385 SE2d 417). Upon remittitur, the trial court adopted the judgment of this Court and ordered defendant to appear for resentencing. At the resentencing hearing, the trial court explained that resentencing for the offense of making a false insurance claim was necessary because “when [defendant] was originally sentenced, the entire sentence was taken into consideration.” Defendant was then sentenced to serve 12 months on probation, to pay a $750 fine and to pay a $20 per month probation fee. This appeal followed. Held:

“[A] defendant should be sentenced separately for each count of a multi-count indictment or accusation.” Dilas v. State, 159 Ga. App. 39, 40 (1) (282 SE2d 690). In the case sub judice, the trial court failed to segregate the conditions which applied to the probationary period of defendant’s original sentences. As a consequence, ambiguity arose as to what conditions of probation attached to the remaining sentence for making a false insurance claim after reversal of defendant’s conviction for violating Georgia’s RICO Act. It is from this perspective that defendant contends the sentence imposed upon resentencing is void, arguing that the trial court was without authority to modify the original sentence after the term of court and beyond 60 days from the date the sentence was imposed. Defendant reasons that the original sentence should be read to include only a one-year probationary period for the remaining conviction, not a 12-month probationary period, a $750 fine and a $20 per month probation fee.

Generally, a sentence may not be suspended, probated, modified or changed after the term of court or 60 days from the date on which the sentence was imposed, whichever time, is greater. OCGA § 17-10-1 (a); State v. Hinson, 164 Ga. App. 66 (296 SE2d 386). Any sentence which is modified after this time period is void unless it is for a misdemeanor under OCGA § 17-10-3 (a) (1) (see OCGA § 17-10-3 (b)), or unless a motion to modify the sentence was made during the term of court in which the sentence was filed (Burns v. State, 153 Ga. App. 529, 530 (265 SE2d 859)). “In Hopper v. Williams, 238 Ga. 612 (234 SE2d 525) (1977), the Supreme Court held that a superior court in the exercise of its inherent power to correct its records to reflect the truth, may correct a written sentence which does not conform to the sentence pronounced orally, and that such action does not constitute a modification of the sentence.” Taylor v. State, 157 Ga. App. 212 (1) (276 SE2d 691). In the case sub judice, there is no question that defendant’s sentence was modified beyond the time period prescribed by OCGA § 17-10-1 (a). Further, we find no exception whereby the trial court was vested with authority to modify the original sentence. Consequently, the modified sentence is void and the original sentence for the offense of making a false insurance claim must be construed as entered.

“ ‘The rule has been laid down by the Supreme Court, and applied by this court, that sentences for criminal offenses “should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.” (Cits.)’ Favors v. State, 95 Ga. App. 318 (1) (97 SE2d 613) (1957).” Dilas v. State, 159 Ga. App. 39, 40 (1), supra. From this perspective, we find that the original sentence for the offense of making a false insurance claim must be construed to exclude the payment of a fine, the payment of restitution and the payment of a monthly probation fee. The only portion of the original sentence which remains unambiguous is the one-year probationary period. Accordingly, this case must be remanded with direction that the trial court vacate the second sentence and reinstate the first.

Case remanded with direction.

Carley, C. J., and Sognier, J., concur specially.

Sognier, Judge,

concurring specially.

I concur with the result reached by the majority, but cannot agree with the rationale advanced therein, as I find this case raises questions concerning the trial court’s authority to resentence a convicted defendant, not its power to modify a sentence.

As the majority recognizes, absent certain circumstances not present here, the trial court cannot modify a criminal sentence once the court term at which the sentence was rendered ends or the defendant begins serving the sentence. However, the trial court is authorized to resentence a defendant at any time if, inter alia, the original sentence was void or illegal (Sherman v. State, 142 Ga. App. 691, 692 (237 SE2d 5) (1977); Mullins v. State, 134 Ga. App. 243 (1) (214 SE2d 1) (1975)), the defendant is convicted on two indictments but the charges are indistinguishable (Roberts v. State, 174 Ga. App. 471 (330 SE2d 597) (1985)), or the conviction on one charge of a multi-count indictment is reversed and the sentences were rendered in the aggregate (Taylor v. State, 144 Ga. App. 534, 536 (241 SE2d 590) (1978); Crews v. State, 142 Ga. App. 319, 321-322 (8) (235 SE2d 756) (1977), overruled in part on other grounds, DeFrancis v. Manning, 246 Ga. 307 (271 SE2d 209) (1980)).

In the case at bar, after this court reversed appellant’s conviction on the RICO count but left the fraudulent insurance claim conviction intact, the trial court ordered appellant to appear for “resentencing” because his original sentence had taken into account his convictions for both crimes. This procedure was the proper approach under those circumstances. See Foster v. State, 142 Ga. App. 805-806 (2) (237 SE2d 455) (1977); see generally Taylor, supra at 536; Crews, supra at 322. However, the trial court was not authorized to increase the sentence originally given appellant for the fraudulent insurance claim conviction. See Schamber v. State, 152 Ga. App. 196, 198 (262 SE2d 533) (1979). While the original written sentence does not clearly indicate to which count the restitution, fine, and probation fee were attributable, the transcript of the first sentencing hearing clearly reveals that the restitution sum, fine, and probation fee were included in the sentence for the RICO conviction, and that the sentence for the fraudulent insurance claim was composed solely of a one-year probated sentence. Accordingly, upon resentencing after remittitur the trial court could levy no greater penalty than the one-year probationary period.

I am authorized to state that Chief Judge Carley joins in this special concurrence.

Decided May 3, 1990.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

Stephen H. Lanier, District Attorney, Harold Chambers, Jr., Assistant District Attorney, for appellee.

       On the previous appearance of this case in Dover v. State, 192 Ga. App. 429, 432 (2) (385 SE2d 417) this Court affirmed the conviction for making a false insurance claim, and gave no direction indicating a resentencing for that offense was necessary.


text:
    A90A0406.
    HENDRIX v. FIRST BANK OF SAVANNAH.
    (394 SE2d 134)
   Sognier, Judge.

Thomas L. Hendrix brought suit against the First Bank of Savannah, alleging that the bank had converted his funds when it accepted for deposit to his attorney’s escrow account a check payable to Hendrix bearing an allegedly forged endorsement. The trial court granted the bank’s motion for summary judgment and Hendrix appeals.

The record reveals that after his wife died, appellant retained the services of attorney William Braziel, an old family friend, to assist in collecting funds due him as a result of his wife’s death, including paychecks, insurance proceeds, and other benefits. No specific written or oral authorization to endorse the checks was given Braziel by appellant at that time, but it is uncontroverted that Braziel had represented appellant several times previously, and on those occasions was given such authority and, in fact, did endorse and deposit checks without complaint from appellant. The check in question was issued in October 1987 by Mutual Benefit Insurance. Company for payment of the proceeds of a life insurance policy issued to appellant’s deceased wife as a fringe benefit of her employment at a local hospital and on which appellant was the designated beneficiary.

OCGA § 11-3-419 (1) (c) provides that an instrument is converted when it is paid on a forged endorsement. The trial court granted appellee’s motion for summary judgment on two primary grounds: that appellee had acted in good faith and in accordance with commercially reasonable standards pursuant to OCGA § 11-3-419 (3) in accepting the check for deposit into Braziel’s escrow account; and that even if the endorsement was unauthorized, pursuant to OCGA §§ 11-3-404 and -406 appellant had both by his subsequent actions and his inaction ratified the alleged forgery.

Appellant asserts several alternate bases for his contention that the trial court erred by granting appellee’s motion for summary judgment, and we address the last of these first, because even if jury issues remain regarding whether appellee acted in accordance with commercially reasonable standards, it is apparent that there was nothing irregular or suspicious about the endorsement on its face which would estop appellee from asserting the defense of ratification, which was uncontroverted. Compare Trust Co. Bank of Augusta v. Henderson, 258 Ga. 703, 704 (1) (373 SE2d 738) (1988) (bank accepted for deposit into an employee’s personal account checks payable to a hotel and endorsed in blank rather than with the hotel’s usual stamped restrictive endorsement); National Bank of Ga. v. Refrigerated &c. Co., 147 Ga. App. 240 (II) (248 SE2d 496) (1978) (checks were made payable to a corporation and deposited to the account of another corporation). Thus, if appellant, by his own conduct, ratified Braziel’s unauthorized signature on the check, he is precluded from recovering on a claim for conversion against appellee, see OCGA §§ 11-3-404; -406, and summary judgment for appellee was proper.

1. Ratification, the confirmation by one of an act performed by another without authority, is an affirmative defense, and the burden of proving it is on the party asserting it. Griggs v. Dodson, 223 Ga. 164, 169, 171 (2) (154 SE2d 252) (1967). The ratification must be made by the principal with knowledge of the material facts, id. at 170, and “may be express or implied from the acts or silence of the principal.” OCGA § 10-6-52. “[I]f the principal, with full knowledge of all the material facts, accepts and retains the benefits of the unauthorized act, he thereby ratifies the act.” (Citations and punctuation omitted.) Hyer v. C & S Nat. Bank, 188 Ga. App. 452, 453 (373 SE2d 391) (1988).

In this case, appellant admitted that he discovered the alleged forgery in February 1987. The record reveals, however, that he failed to notify appellee of this alleged forgery until the filing of this action in October 1987, nor did he take any action against Braziel at the time of his discovery of the alleged forgery. Rather, appellant continued to retain Braziel as his attorney to collect similar benefit checks until July 1987. Further, although the deposition testimony of Braziel and appellant conflicts as to when the decision was made to treat Braziel’s deposit of the check in question as a loan and as to whether a note was ever executed for the amount of that check, it is undisputed that either before the check was deposited or when appellant discovered the alleged forgery in February 1987, an agreement was reached to treat the deposited check as a loan, and that Braziel made payments to appellant of both principal and interest.

Moreover, subsequent to appellant’s discovery of the alleged forgery, he made further loans to Braziel, and on April 13, 1987 Braziel executed a security deed covering the total amount lent to him by appellant, $293,584.48, this amount exactly equalling the sum of the subject check plus three other undisputed loans, and pledged as collateral four parcels of property owned by Braziel. By appellant’s own admission, in July 1987 he lent Braziel another $10,000 without a note. In September 1987 appellant, through his new attorney, notified Braziel that the notes were in default, but no accusations of forgery or conversion were made. In October 1987 Braziel instituted bankruptcy proceedings, and the schedules filed reflected $228,584 owed to appellant, which included all loans made including the approximately $83,000 from the insurance proceeds check in question here, less $75,000 paid toward the principal by Braziel.

“[T]he acts of a principal are to be liberally construed in favor of an adoption of the acts of the agent, and when the unauthorized act of the agent is done in the execution of power conferred, but in excess or misuse thereof, a presumption of ratification readily arises from slight acts of confirmation, or from mere silence or acquiescence, or where the principal receives and holds the fruits of the agent’s act. [Cit.]” Kelley v. Carolina Life Ins. Co., 48 Ga. App. 106, 107 (3) (171 SE 847) (1933). In the case sub judice, not only does appellant admit that he failed to notify appellee or take action against the alleged forger for eight months after discovery, a silence from which ratification ordinarily may be presumed, the evidence establishes that he also chose to treat the alleged forgery as though it were a loan, thereby reaping benefit in the form of security, as well as interest and principal payments, and thereby indicating ratification as well.

Although it is true, as argued by appellant, that whether an unreasonable period of time passed before appellant’s notification to appellee so as to result in a ratification is usually an issue for the jury, see Klingbeil v. Renbaum, 146 Ga. App. 591, 593 (3) (246 SE2d 698) (1978), the “ ‘peculiar circumstances’ ” of the facts presented here, see Griggs, supra at 170, particularly appellant’s affirmative acts strongly indicating ratification, distinguish this case from Klingbeil, supra, and other cases where only silence or mere inaction of the principal is offered to show ratification. Moreover, no evidence was presented by appellant in support of his position that his actions did not constitute ratification, in opposition to the motion for summary judgment. “A party opposing a motion for summary judgment must come forward with affidavits or other evidence showing specifically that there is a genuine issue for trial. He may not simply rest upon a mere allegation, but must respond by affidavits or otherwise as provided by the Civil Practice Act and set forth specific facts. [Cit.]” Sanders v. Fulton Nat. Bank, 148 Ga. App. 684, 685 (2) (252 SE2d 189) (1979). Under these circumstances, we find no error in the trial court’s grant of summary judgment to appellee on the ground that by his actions, appellant ratified any unauthorized endorsement.

2. Our decision in Division 1, supra, renders it unnecessary that we address appellant’s other enumerations of error.

Judgment affirmed.

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

Decided May 3, 1990.

Hunter, Maclean, Exley & Dunn, Therese F. Pindar, Michelle P. Jordan, for appellant.

Downing, McAleer & Gaskin, James E. McAleer, Jr., Bouhan, Williams & Levy, Leamon R. Holliday III, for appellee.


author: Pope, Judge.

text:
    A89A0901.
    WOMACK v. THE STATE.
    (394 SE2d 801)
    Decided May 4, 1990.

      The Garland Firm, Donald F. Samuel, for appellant.

      Frank C. Winn, District Attorney, for appellee.
   Pope, Judge.

Our judgment in this case at 193 Ga. App. 186 (387 SE2d 336) (1989) has been reversed by the Supreme Court on certiorari. Womack v. State, 260 Ga. 21 (389 SE2d 240) (1990). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is reversed.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


text:
    A90A0089.
    COTHERN v. THE STATE.
    (393 SE2d 763)
   Cooper, Judge.

On or about November 28, 1986, appellant escaped from a minimum security prison in Jacksonville, Florida, and his escape route took him into Georgia where he assaulted one police officer, stole his gun and fired on other officers. After appellant’s arrest in Georgia, he was returned to the Florida prison system. The record reflects the following: an indictment in Georgia was returned in February 1987; an attorney was appointed for appellant in October 1987; appellant’s pro se motion to dismiss was denied in June 1988; appellant filed pro se motions to request legal counsel in June 1988; appellant’s federal habeas corpus petition was denied in June 1988; appellant signed waiver of extradition forms in September 1988 on which appellant listed the name of his attorney; appellant appeared for arraignment in November 1988 and numerous discovery and defense motions were filed by appellant’s attorney at that time; and trial was held on November 29, 1988. A jury convicted appellant of two counts of aggravated assault and one count of robbery and appeal is taken from that verdict and the sentence thereon.

1. Appellant first enumerates as error the failure to appoint legal counsel for him. “The [appellant’s] right to counsel includes the benefit of counsel at all the critical stages of the case and sufficiently prior to the trial for adequate preparation.” (Citations and punctuation omitted.) Ramsey v. State, 183 Ga. App. 48 (2) (357 SE2d 869) (1987). Appellant submitted no evidence to show that the above standard was not complied with, and in fact, the record indicates that counsel was appointed at least as early as October 1987 and that counsel became actively involved in August 1988, some three months prior to the trial. Our review of the record convinces us that appellant had the benefit of counsel at the critical stages of his case and that there was sufficient time for adequate preparation of his defense. Hayes v. State, 168 Ga. App. 710 (2) (309 SE2d 843) (1983). Appellant’s assertion that the 180-day rule of OCGA § 42-6-20, Article III was violated is incorrect. Appellant did not comply with the procedures under the statute to trigger the 180-day rule until September 1988. Prior to that time, appellant had failed to waive extradition to Georgia, was in fact contesting the attempts to bring him to Georgia, and did not make his whereabouts known to Georgia officials. Counsel had been appointed for appellant in Georgia, but appellant’s own actions prevented the protections of OCGA § 42-6-20 from being activated.

2. Appellant next contends that the trial court erred in failing to grant the appellant a speedy trial. A weighing of the four factors set forth in Treadwell v. State, 233 Ga. 468 (211 SE2d 760) (1975), results in a decision adverse to appellant’s position. “These four factors are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Id. at 469. While approximately twenty-two months passed between the indictment and the trial, “the mere passage of time ... is not enough to constitute a denial of due process.” Lett v. State, 164 Ga. App. 584 (1) (298 SE2d 541) (1982). Any delay in arraigning appellant or bringing him to Georgia to stand trial was apparently a result of the inability to locate him in the Florida prison system during the period prior to his waiver of extradition. The State, after attempting detainer, did not locate the appellant until he surfaced with his motion to dismiss. From the time the waiver of extradition was signed, the trial proceeded post-haste. This reason for the delay is valid and weighs heavily for the State. Appellant did not request a continuance of his trial or demand a speedy trial. As stated in Division 1, appellant did not trigger the speedy trial protections of OCGA § 42-6-20 until September 1988. Finally, appellant suffered no prejudice because he was already legally incarcerated, there is no showing made of any anxiety he suffered and he does not contend that his defense was impaired. See Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Appellant’s second enumeration is without merit.

Decided May 4, 1990.

Earl D. Smith, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill III, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0124.
    RANKIN v. THE STATE.
    (394 SE2d 142)
    Decided May 4, 1990.

      Patrick G. Longhi, for appellant.

      Lewis R. Slaton, District Attorney, Katherine Beaver, Joseph J. Drolet, Assistant District Attorneys, for appellee.
   Cooper, Judge.

Appellant appeals his conviction by a jury of robbery and the resulting sentence. At trial, the victim and her sister, an eyewitness, testified that the appellant followed them from a bus down a path between two apartment complexes, where the appellant grabbed the victim, struggled with her on the ground and took money from her. The two girls testified as to the clothing worn by the appellant and his description and picked his photograph out of a display soon after the incident occurred. The police officers testified as to his clothing, the money found on the appellant in the amount the victim stated was taken from her, the events surrounding the robbery, and the subsequent struggle in which the appellant was shot by a police officer. The appellant was the only witness for the defense and gave testimony which contradicted that of the witnesses for the State. “A fair analysis of the evidence in support of the [conviction] of the [offense] charged satisfies this court that there was a sufficient quantum of credible evidence to satisfy any rational jury of reasonable persons of the guilt of the accused beyond a reasonable doubt. [Cit.]” Myers v. State, 184 Ga. App. 618 (1) (362 SE2d 92) (1987).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0146.
    BURKS v. THE STATE.
    (394 SE2d 136)
   Cooper, Judge.

Following a jury trial, appellant was convicted of speeding (OCGA § 40-6-181) and driving under the influence (OCGA § 40-6-391 (a) (1)). On appeal, he enumerates several alleged errors.

The arresting officer testified that he stopped appellant after radar clocked appellant’s vehicle at 74 miles per hour. While the officer checked appellant’s license and insurance, he noticed that there was a strong odor of alcohol on appellant’s breath; that appellant’s eyes were red and bloodshot; and that appellant was weaving slightly as he stood. The officer asked appellant if he had been drinking and appellant stated that he had been drinking. When appellant did not pass an aleo-sensor test, he was placed under arrest for driving under the influence and speeding. The officer read appellant the implied consent warning, and appellant replied that he would submit to a breath test. At the sheriff’s department, the officer administered an intoximeter test to appellant, and the results were 0.11.

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion to quash the accusation because of several alleged irregularities in the accusation.

(a) “The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation. . . .” OCGA § 17-7-71 (a). Although the accusation refers to the affidavit of the officer, this imperfection, even if error, was harmless. See Manley v. State, 187 Ga. App. 773 (2) (371 SE2d 438) (1988).

(b) Likewise, we find no merit to appellant’s argument that the accusation was improper because Count I was in accusation form and Count II only referred to the traffic citation. A uniform traffic citation can be used as an accusation, “[h]owever, it is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued and that the prosecuting attorney has no authority to file a subsequent formal accusation.” State v. Doyal, 184 Ga. App. 126, 127 (361 SE2d 17) (1987).

(c) “The legal sufficiency of the accusation or indictment depends upon the accusation as a whole. An accusation is sufficiently technical and correct if it states the offense in the terms and language of the statute or so plainly that the jury may easily understand the nature of the offense charged. A defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground.” (Citations and punctuation omitted.) Watson v. State, 190 Ga. App. 671 (3) (379 SE2d 811) (1989). Consequently, appellant’s claim that the amended accusation materially changed the charge has no merit.

(d) OCGA § 40-6-391 (b) is clear enough to discern the legislature’s intention, which was not, as appellant argues, to allow anyone who has ever legally used a drug to be exempt from the prohibitions of OCGA § 40-6-391 (a). Thus, we find no violation of appellant’s due process rights. See Proo v. State, 192 Ga. App. 169, 170 (384 SE2d 197) (1989).

(e) Appellant’s argument that the language of the accusation presupposes his guilt and violates his right to due process is totally without merit.

2. Appellant enumerates as error the trial court’s denial of his motion to suppress the results of the intoximeter test.

(a) “The results of a breath test are admissible in a criminal proceeding for driving under the influence of alcohol if the test is performed in accordance with the specific statutory guidelines of OCGA § 40-6-392 (a) (1).” Dotson v. State, 179 Ga. App. 233 (1) (345 SE2d 871) (1986). “The statute does not demand that the examiner have an expert’s knowledge of the underlying scientific principles governing the functioning of the machine.” Dotson v. State, supra at Division 2. The record reflects that the intoximeter machine used was the type approved by the Department of Public Safety; that the officer who conducted the test was certified to operate the intoximeter machine; that the machine was in proper operating condition; and that appellant had been informed of his rights under the informed consent statute. Accordingly, we conclude that the test results were properly admitted.

(b) Appellant’s argument that the intoximeter test was unfair goes to the weight to be placed upon the test results by the jury and does not affect their admissibility. Sanders v. State, 176 Ga. App. 869 (1) (338 SE2d 5) (1985).

(c) The State showed by testimony that appellant was advised of his rights under the implied consent statute and that appellant did not request any other test. “Sufficient compliance with the ‘implied consent’ statute is established by evidence showing that the accused was given timely notice of his implied consent rights and thereafter made no request for an independent chemical test. [Cits.]” Martin v. State, 176 Ga. App. 871 (338 SE2d 298) (1985).

3. The officer testified as follows: “I asked Mr. Burks for his license and insurance card. He presented a Georgia license, an HV probationary license.” Appellant’s counsel objected and moved for a mistrial on the ground that the testimony impermissibly placed appellant’s character in evidence. The trial court denied the motion and gave a curative instruction advising the jury to disregard the officer’s testimony about the driver’s license. Considering the trial court’s curative instruction together with other evidence sufficient to support the jury’s finding that appellant was guilty beyond a reasonable doubt of driving under the influence of alcohol to an extent which rendered him a less safe driver, we find no abuse in the trial court’s discretion in denying appellant’s motion for mistrial. Sturdy v. State, 192 Ga. App. 71, 72 (383 SE2d 632) (1989).

4. Appellant enumerates as error the trial court’s refusal to allow his expert to testify regarding two experiments conducted. In an offer of proof, appellant’s expert testified that on the morning of trial he registered .00 on the intoximeter, and after ingesting acetone he registered .05. We find no error with the trial court’s ruling that the testimony was inadmissible, “since the original test conditions, including appellant’s own physical condition, could not have been duplicated.” Kuptz v. State, 179 Ga. App. 150 (9) (345 SE2d 670) (1986). During a second offer of proof, appellant’s expert testified that on the day before trial, he conducted a test and found appellant’s breath to blood ratio to be 1680 to 1, as opposed to the 2100 to 1 ratio used by the state in performing the intoximeter test. The witness further explained that in an intoximeter test which made an allowance for appellant’s lower breath to blood ratio, appellant’s blood alcohol level would register .088. In light of the overwhelming evidence of appellant’s violation of OCGA § 40-6-391 (a) (1), we find no reversible error in the trial court’s refusal to allow the test results. Appellant admitted to the officer that he had been drinking, and the officer testified that in his opinion, based on his experience and what he observed about appellant on the day in question, it was less safe for appellant to operate his vehicle. Even though similar tests have been admitted (see Manley v. State, 191 Ga. App. 376 (381 SE2d 592) (1989)), no harm resulted to appellant from the exclusion of the test. “Harm as well as error is necessary before reversible error is shown. [Cit.]” Manley v. State, supra at 377. Furthermore, contrary to appellant’s argument, there is no Sixth Amendment right to confrontation of machines. Kuptz v. State, supra at 152.

5. Appellant also asserts as error the denial of his motion for directed verdict of acquittal. The arresting officer had sufficient reason to stop appellant based on the high rate of speed at which appellant was travelling. Subsequent to the stop, appellant admitted that he had been drinking, exhibited signs of intoxication and failed an alcosensor test. A subsequent intoximeter test showed a blood-alcohol content of .11. The evidence taken as a whole was sufficient to enable a rational trier of fact to find the appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ragan v. State, 191 Ga. App. 374 (2) (381 SE2d 589) (1989).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided May 4, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Jr., Solicitor, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A0160.
    KRESS v. THE STATE.
    (394 SE2d 139)
   McMurray, Presiding Judge.

Defendant Kress appeals his conviction of the offenses of incest, statutory rape and child molestation. The victim of each offense was defendant’s daughter, who was eight years of age at the time of defendant’s trial. Held:

1. Defendant’s first enumeration of error contends that the trial court erred in allowing testimony as to prior sexual acts between the defendant and the victim as this evidence impermissibly placed defendant’s character in issue. “In criminal cases, the rule admitting evidence of similar crimes is an exception to the general rule against prejudicially putting a defendant’s character in issue. Millwood v. State, 164 Ga. App. 699 (296 SE2d 239). But where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact, it is properly admitted. Hayes v. State, 175 Ga. App. 135, 137 (332 SE2d 917); McCarty v. State, 165 Ga. App. 241, 243 (299 SE2d 95). However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. Davis v. State, 249 Ga. 309, 311 (290 SE2d 273).” Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270). Both of the conditions prerequisite to the admission of the evidence at issue were satisfied. Contrary to defendant’s contention, there is no additional condition that the similar transaction be perpetrated within the territorial jurisdiction of the trial court.

2. In his next enumeration of error, defendant raises for the first time a contention that his attorney was not timely served with notice of the State’s intent to present evidence of similar transactions in compliance with Uniform Superior Court Rule 31.3. However, “ ‘it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. (Cits.)’ Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981).” Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891).

3. In his final enumeration of error, defendant contends that he was denied due process of law by the State’s failure to provide, in response to a Brady motion, the results of the examination of certain samples, commonly called a “rape kit,” taken from the victim. “When a due process violation is claimed under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), it is necessary that the defendant indicate the materiality and the favorable nature of the evidence. ‘The “(d)efendant . . . has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady Rule.” (Cit.)’ Wallin v. State, 248 Ga. 29, 33 (279 SE2d 687) (1981); Stevens v. State, 242 Ga. 34, 36 (1) (247 SE2d 838) (1978); Potts v. State, 241 Ga. 67, 74 (5) (243 SE2d 510) (1978).” Benford v. State, 189 Ga. App. 761, 762 (1), 763 (377 SE2d 530). As there is no showing that the evidence sought was favorable, defendant has failed to show a Brady violation.

Decided May 4, 1990.

William H. Newton III, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Judgment affirmed.

Corley, C. J., and Sognier, J., concur.


text:
    A90A0306.
    In the Interest of J. B. et al., children.
    (394 SE2d 143)
    Decided May 4, 1990.
   McMurray, Presiding Judge.

Appellants, two juveniles, appealed following an adjudication that they are delinquent and in need of treatment and rehabilitation. In their sole enumeration of error, appellants contend the juvenile court exceeded its authority in ordering appellants to have their hair cut. Held:

We cannot review appellants’ enumeration of error inasmuch as we find no written order in the record requiring the cutting of appellants’ hair and we have been informed by the clerk of the juvenile court that the court’s order was never reduced to a written order. Georgia Television v. Castellani, 257 Ga. 549 (361 SE2d 381). It follows that this case must be “dismissed without prejudice to the appellants’ right to request the [juvenile] court to enter an appealable judgment, and without prejudice to the appellants’ right to file an appeal upon entry of the judgment.” Georgia Television v. Castellani, 257 Ga. 549, supra.

Appeal dismissed.

Carley, C. J., and Sognier, J., concur.

Watson & Watson, Herman A. Watson III, Bruce S. Harvey, for appellants.

Michael E. Neidenbach, Solicitor, for appellee.


text:
    A90A0348.
    BROCKINGTON v. THE STATE.
    (393 SE2d 765)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery and now appeals following the denial of his motion for a new trial. Held:

1. Defendant assigns error upon the denial of his motion for a new trial. In this regard, he argues he was given an opportunity to enter a negotiated plea to robbery but instead insisted upon a jury trial without fully appreciating the significance of an armed robbery conviction. Completing the argument, defendant asserts “the court should have some means of allowing him to undo that choice. Guilty pleas may be withdrawn or set aside in appropriate situations. Why not not guilty pleas.” Brief of Appellant, p. 5. We are not persuaded.

Defendant had a choice of pleading guilty to robbery or pleading not guilty to armed robbery. He chose the latter course and must endure the consequences. The rationale expressed in Allen v. State, 193 Ga. App. 670, 672 (388 SE2d 889) (1989), applies equally here: “A criminal defendant should not be allowed to reject a sentence concession that is offered in return for a guilty plea and then bind the State to that rejected original lenient sentence even though he is later convicted after a trial. To hold otherwise would allow a criminal defendant to go to trial and seek an acquittal knowing that, even if unsuccessful, he would receive a sentence which is no less lenient than that he was originally offered.”

2. The trial court’s charge on robbery by intimidation was neither misleading nor confusing. Assuming, arguendo, the charge on robbery by intimidation was not as clear and precise as desired, we find that, viewed in its entirety, the trial court’s charge fully and fairly instructed the jury on the law of the case. See Riceman v. State, 166 Ga. App. 825, 827 (2) (305 SE2d 595), wherein we held: “The court’s instruction to the jury should be looked to as a whole, and if the applicable law is stated accurately and fairly, in such manner as to work no prejudice to the defendant, then this court will not consider a challenge to the wording of isolated segments.” The second enumeration of error is without merit.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided May 4, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Desiree L. Sutton, Robert W. Houman, Assistant District Attorneys, for appellee.


text:
    A90A0365.
    BOWERS v. THE STATE.
    (394 SE2d 141)
   McMurray, Presiding Judge.

Defendant Bowers appeals his conviction of the offense of possession of a controlled substance with intent to distribute. Held:

1. The attention of a patrolling police officer was directed by the outcry of a private citizen to two individuals standing together beside a building. After the officer illuminated the area with the spotlight on his patrol car, the two individuals separated and started to walk away until ordered to stop. Subsequently, the officer observed one of the individuals, defendant Bowers, drop four small plastic bags containing crack cocaine to the ground.

“On appeal the evidence must be viewed in a light most favorable to the prosecution. August v. State, 180 Ga. App. 510 (1) (349 SE2d 532) (1986).” Marks v. State, 192 Ga. App. 64 (1) (383 SE2d 626). While mere possession of a controlled substance without more will not serve as the basis for a conviction of possession of a controlled substance with intent to distribute, the evidence of the controlled substance in this case being packaged in a manner commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that defendant possessed crack cocaine, a controlled substance, with intent to distribute. See Wright v. State, 154 Ga. App. 400, 401 (1), 402 (268 SE2d 378). The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The arresting officer testified that he picked up the bags of contraband from where they had been dropped by defendant and placed them in a brown property envelope which he marked with the case number, defendant’s name, a list of the contents, and the officer’s name and payroll number. The arresting officer delivered the envelope to the police property room. Another police officer received the envelope from the property room, transported it to the State crime laboratory, and gave it to the chemist who conducted the identification test on the substance therein.

Defendant contends that the State has failed to establish the chain of custody due to a combination of three factors, the failure to provide receipts at the delivery of the property to the crime laboratory, the lack of evidence concerning security of the police property room and a discrepancy in the testimony as to the case number. However, the State has demonstrated with reasonable certainty that the cocaine introduced into evidence was the substance in the plastic bags dropped by defendant and after considering each of defendant’s contentions we find nothing which raises a suspicion of tampering. It was proper to admit the evidence and let what doubt remains go to its weight. Mutcherson v. State, 179 Ga. App. 114 (345 SE2d 661); Shrader v. State, 159 Ga. App. 522, 524 (2) (284 SE2d 37).

Decided May 4, 1990.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.