text:
    A93A0447.
    DODSON v. FARM & HOME SAVINGS ASSOCIATION.
    (430 SE2d 880)
   Andrews, Judge.

Title to the subject real property was deeded from Dodson to Farm & Home Savings Association (Farm & Home) pursuant to a non-judicial foreclosure under the terms of Farm & Home’s security deed over the property. After Farm & Home purchased the property at the foreclosure sale, it brought the present dispossessory action against Dodson to take possession of the premises. Dodson appeals from the order of the trial court granting summary judgment to Farm & Home on the issue of possession.

It is undisputed that Farm & Home purchased the property at the foreclosure sale for $50,526.53. Dodson claims that after the purchase price is applied to costs of sale, attorney fees, and the balance of the secured debt, a surplus remains to which he is entitled. See Bob Parrott, Inc. v. First Palmetto Bank, 133 Ga. App. 447, 449 (211 SE2d 401) (1974); Stone v. Davis, 242 Ga. 17 (247 SE2d 756) (1978); Pindar, Ga. Real Est. Law, § 21-88 (3rd ed.). Dodson further contends that his right to receive surplus funds gives him an equitable interest in the property sufficient to allow him to retain possession until he receives payment. Assuming Dodson has a claim to surplus funds from the foreclosure, it is based on an interest in the funds, not on a continuing interest in the property sold at the foreclosure. “Surplus moneys arising on foreclosure stand in place of the land itself as to liens thereon or vested rights therein. . . . The surplus funds represent the equity of the owner in the real estate, and until the attorney in fact has paid these funds to a person entitled thereto there is no reason why equity should not take jurisdiction to impress liens upon them.” East Atlanta Bank v. Limbert, 191 Ga. 486, 490 (12 SE2d 865) (1941); Cheek v. Savannah Valley &c. Assn., 244 Ga. 768 (262 SE2d 90) (1979); Stone, supra at 19-20.

The foreclosure sale and deed, the validity of which are not at issue here, placed sole title to the property in Farm & Home, extinguished Dodson’s equity of redemption (see Kennedy v. Trust Co. Bank &c., 160 Ga. App. 733, 736 (288 SE2d 87) (1981)), and put Dodson in the position of a tenant at sufferance subject to dispossession under the provisions of OCGA § 44-7-50 et seq. California Fed. Savings &c. Assn. v. Day, 193 Ga. App. 690, 691 (388 SE2d 727) (1989); West v. Veterans Administration, 182 Ga. App. 767, 768 (357 SE2d 121) (1987). Moreover, “[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under [OCGA § 44-7-50 et seq.]. The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside.” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (274 SE2d 34) (1980); Powell v. Bank South, N. A., 202 Ga. App. 852, 853-854 (415 SE2d 543) (1992); Cotton v. Fed. Land Bank &c., 171 Ga. App. 360 (320 SE2d 235) (1984).

The trial court properly granted summary judgment to Farm & Home on the issue of possession.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

Decided April 29, 1993.

J. L. Jordan, for appellant.

David R. Passino, for appellee.

       The existence of a surplus is disputed. As Farm & Home points out, there was no reason for it to purchase the property at a bid in excess of its costs and attorney fees plus the loan balance.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A0482.
    VICTORY SIGN INDUSTRIES, LTD. v. POTTER.
    (430 SE2d 882)
   Andrews, Judge.

After Victory Sign Industries, Ltd. (Victory) terminated Potter in accordance with terms set forth in his employment contract, Potter sued to recover damages specified under the termination clause of the contract. Victory appeals from the order of the trial court granting .summary judgment in favor of Potter.

The termination clause of the employment contract provided that: “Employer [Victory] may terminate Employee’s [Potter’s] employment with cause at any time with written notice to Employee setting forth in detail the actions of Employee which are alleged to constitute cause for termination. Employee shall, however, have the right to cure, during the thirty (30) day period succeeding such written notice, such cause prior to the effectiveness of such termination. . . . Termination ... in any other manner . . . shall be deemed without cause. In the event the Employee’s employment is terminated without cause, the Employer shall be required to pay the Employee (in the manner set forth herein), as the Employee’s sole remedy for damages, the Base Salary, the Additional Salary and a Bonus amount (or an additional bonus amount, if any) for the full two-year ■ period commencing on the Effective Date. In the event the Employee’s employment is terminated with cause or the Employee terminates his employment for any reason whatsoever, the Employer shall only be obligated to pay the Employee an amount equal to the amount of the Base Salary earned as of the date of the termination, the full amount of the Additional Salary and a pro rata amount of the bonus (or additional bonus amount, if any) earned as of the date of such termination.”

It is undisputed that on November 22, 1991, Victory terminated Potter without written notice and without cause under the terms of the employment contract. On November 26, 1991, Potter demanded that Victory pay him the damages specified by the contract for termination without cause. On November 27, 1991, Victory admitted that lack of the required written notice defined Potter’s termination as one “without cause” under the express terms of the contract, and Victory offered to reinstate him with back pay, effective immediately. Victory further stated that upon return to work, Potter would be given the required written notice of cause for his termination, and would be given the required 30-day opportunity to cure such cause. After Potter declined to accept the reinstatement offer, Victory informed Potter that the refusal to return to work would be deemed his voluntary termination of employment. Thereafter, Potter sued Victory to recover the damages specified under the contract for being terminated without cause. Victory défended in part by claiming that Potter failed to mitigate his damages by accepting the offer to return to work. In support of this contention, Victory produced evidence that Potter did not accept other employment until about March 1992, and that when the reinstatement offer was made he had not changed his position in any way which would have prevented him from returning to work for Victory.

On summary judgment, the trial court concluded that Victory terminated Potter without cause under the terms of the employment contract, and that the damages sought by Potter were mandated under the terms of the contract. Generally, “[w]here by a breach of contract a party is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.” OCGA § 13-6-5; Central Nat. Ins. Co. &c. v. Dixon, 188 Ga. App. 680, 682 (373 SE2d 849) (1988). However, “[t]he rule requiring the plaintiff to protect himself from loss arising from breach of a contract is not applicable where there is an absolute promise to pay. ...” Reid v. Whisenant, 161 Ga. 503, 510 (131 SE 904) (1926); see J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 729 (380 SE2d 282) (1989); Haley v. Oak Apartments, Ltd., 173 Ga. App. 44, 46 (325 SE2d 602) (1984). This is not a case where an employee seeks to recover as damages the remainder of his salary after being terminated prior to the expiration of the contractual term of employment. In those cases, mitigation of damages may be applicable. Autotax, Inc. v. Data Input Corp., 136 Ga. App. 141, 142 (220 SE2d 456) (1975); Western Host Atlanta v. Bass, 183 Ga. App. 160 (358 SE2d 312) (1987). Rather, after being terminated without cause in accordance with the terms of the employment contract, Potter sought to collect damages required to be paid to him after such termination under the express terms of the contract. Royal Crown Cos. v. McMahon, 183 Ga. App. 543, 546 (359 SE2d 379) (1987) (plaintiff’s right to severance pay was absolute under contract); Atlanta &c. Clinics, P. A. v. Patton, 176 Ga. App. 2, 3 (335 SE2d 141) (1985). Potter was under no obligation to mitigate these damages. The trial court correctly determined, as a matter of law, that Potter was entitled to summary judgment for the damages sought.

Decided April 29, 1993.

John 0. Wiggins, for appellant.

Harriss, Hartman, Aaron, Wharton & Boyd, John L. O’Dell, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       Victory’s counterclaim against Potter for breach of another clause of the employment contract remains pending, and is not an issue in this appeal.


text:
    A93A0665.
    WILLIAMS v. THE STATE.
    (430 SE2d 883)
   Andrews, Judge.

Williams was tried and convicted for entering an automobile pursuant to OCGA § 16-8-18 and appeals.

Viewing the evidence in the light most favorable to the verdict, it was that in the late afternoon of May 13, 1991, Officers McDowell and Rushing of the Cobb County Police Department noticed that the door of a 1976 Oldsmobile which was parked in the police precinct parking lot was open, and a man’s legs were sticking out of the vehicle. McDowell looked in the vehicle and found Williams lying on his left side with his right hand under the right front passenger seat, as if he was rummaging through the vehicle.

McDowell questioned Williams about his presence in the car. Williams explained that he was waiting in the car for someone who had promised him a job. Williams did not know the name of the man he claimed was planning to offer him a job. He had the business card of a temporary agency, which he gave to the police. They called the number listed on the card, but received no answer.

McDowell ran a computer check on the car and discovered that the car belonged to another Cobb County police officer, Thomas Lehner. He returned to the vehicle where Officer Rushing was waiting with Williams. Rushing again asked Williams to identify the owner of the car and he was unable to do so.

Williams was arrested and a search conducted. Found during the search were a piece of a radio antenna, a spark plug, a screwdriver, a razor blade, a bus ticket and a black stocking. A flashlight was also recovered from the passenger side floorboard of the Oldsmobile. Two bags of a substance which was suspected of being crack cocaine, but which tested negative for the drug, were also recovered. The officers testified at trial that screwdrivers and spark plugs were commonly used to break into and steal cars.

Officer Lehner testified that he had not given Williams permission to enter his vehicle, that he did not know Williams and had never talked to him about a job. He stated that he did not lock his car on May 13, and that he parked his car in the area reserved for police parking. He also testified that he had an AM/FM cassette stereo in the dashboard and four speakers which were installed in the vehicle.

1. In two separate enumerations of error, Williams claims that the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence was insufficient to support the verdict. He argues that the circumstantial evidence did not exclude every reasonable hypothesis except that he had committed the crime.

We find no error. “[Circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.” Peppers v. State, 261 Ga. 338 (1) (404 SE2d 788) (1991). Furthermore “[qjuestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law.” Robinson v. State, 203 Ga. App. 759, 760 (1) (417 SE2d 404) (1992).

After reviewing the record, we find that the evidence was sufficient to support the verdict and that the denial of Williams’ motion for a directed verdict of acquittal was proper. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Next, Williams argues that the verdict was defective in that it failed to specifically mention criminal intent in finding him guilty of the offense of entering an automobile. OCGA § 16-8-18 provides that if a person enters a vehicle with the intent to commit a theft or felony, he shall be guilty of a felony. Williams contends that the verdict found him guilty of “entering an automobile,” which is not a crime.

We disagree. The trial court charged the jury regarding the verdict and instructed the jurors to find the defendant guilty or not guilty of “the offense of entering an automobile as alleged in the Bill of Indictment.” The court also read the indictment to the jury and instructed the jury regarding OCGA § 16-8-18. No other offense regarding entering an automobile was charged. After the jury returned its verdict of guilty, the court asked the jurors whether their finding included a finding that Williams entered the automobile for the purpose of committing a theft. The jurors responded affirmatively.

OCGA § 17-9-2 provides in part that “[v]erdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.” Furthermore, “in the construction of verdicts the accusation must be considered.” Dunbar v. State, 21 Ga. App. 502 (94 SE 587) (1917). Here, we find that the verdict both in its language and in its intendment constituted a finding that Williams was guilty of the offense outlined in OCGA § 16-8-18. See generally Boulware v. State, 189 Ga. App. 390 (5) (376 SE2d 209) (1988); Fambro v. State, 164 Ga. App. 359 (2) (297 SE2d 111) (1982).

Decided April 29, 1993.

Frank G. Smith, Gary N. Struletz, for appellant.

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

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A0073.
    HOFFMAN v. THE STATE.
    (430 SE2d 886)
   Andrews, Judge.

After a bench trial, Hoffman was convicted of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), and driving with an unlawful blood alcohol level (OCGA § 40-6-391 (a) (4)).

Testimony showed Hoffman was stopped at a roadblock set up by police officers for the purpose of checking driver’s licenses and vehicle safety. The roadblock was well identified as a police checkpoint, and all vehicles approaching were briefly stopped. One of the field officers testified that the roadblock was authorized by his supervisor and that the supervising sergeant was at the scene of the roadblock. The police officer stopping Hoffman detected a faint odor of alcohol on his breath, and Hoffman admitted to the officer that he had been drinking beer. An alco-sensor test at the scene was positive for alcohol. After Hoffman failed at least two field sobriety tests administered by the officer, he was arrested and charged with driving under the influence. An intoximeter test administered after the arrest showed Hoffman had a blood alcohol level of 0.12 percent.

1. All three of Hoffman’s enumerations of error center on his claim that the roadblock was an unlawful pretext to target him to check his sobriety without reasonable suspicion that he was driving under the influence, or had violated the law in any other manner. Hoffman contends: (1) the State was required to show the roadblock was authorized by supervisory personnel, rather than by officers in the field, and that the trial court erred in considering hearsay evidence of such authorization; (2) that without probative evidence of authorization, the trial court erred in ruling there was sufficient evidence the roadblock was authorized; and (3) that the trial court should have granted his motion for a directed verdict of acquittal because there was no probative evidence of authorization.

“[P]olice officials may set up highway roadblocks for the purpose of requiring motorists to display their driver’s license, and . . . such a practice does not invade their right to use the public ways free from unreasonable and unwarranted interception. Nor does such a practice constitute an unlawful arrest or restraint or an illegal search contrary to the United States Constitution. The state can practice preventive therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness.” (Citations and punctuation omitted.) Sapp v. State, 188 Ga. App. 700 (374 SE2d 114) (1988). “[T]he issue for resolution is not whether there was an articulable suspicion or probable cause to stop appellant’s vehicle, but whether the instant [roadblock] was otherwise implemented and conducted in such a manner as to demonstrate that the stop of appellant’s vehicle was ‘ “reasonable” under the Fourth Amendment.’ ” Christopher v. State, 202 Ga. App. 40, 41 (413 SE2d 236) (1991).

In his enumerations of error, Hoffman, in effect, contends there was insufficient evidence of proper authorization to establish the roadblock was reasonable under Fourth Amendment standards. We need not address the authorization issue raised in appellant’s enumerations of error to resolve this case. During the bench trial, Hoffman objected to introduction of the results of the intoximeter test partly on the basis that it was obtained as a result of an unauthorized roadblock in violation of his Fourth Amendment rights. The trial court overruled the objection, and admitted the evidence. Hoffman does not claim error in admission of the evidence, but only that the trial court erroneously concluded on insufficient evidence that the roadblock was authorized. Hoffman did not otherwise move to suppress evidence obtained as a result of the roadblock, so he waived any right to claim the evidence admitted as a result of the stop should have been excluded on Fourth Amendment grounds that the roadblock was not authorized. Ruffin v. State, 201 Ga. App. 792 (412 SE2d 850) (1991); Hawes v. State, 240 Ga. 327, 333 (240 SE2d 833) (1977). Accordingly, the enumerations of error provide no basis for reversal. The evidence before the trial court was sufficient to support the convictions. Christopher, supra; Sapp, supra; Brimer v. State, 201 Ga. App. 401 (411 SE2d 128) (1991).

2. Since the offenses charged under OCGA § 40-6-391 (a) (1) and (a) (4) were based on the same conduct, they merged under the substantive double jeopardy rule, which limits multiple convictions or punishments for crimes arising from the same criminal conduct. Page v. State, 202 Ga. App. 828, 830-831 (415 SE2d 487) (1992); State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974). Although Hoffman was convicted of both offenses, it is apparent from the transcript that for purposes of sentencing the trial judge considered the charges alternative and sentenced appellant for only one offense. Accordingly, no remand for resentencing is necessary, and we vacate appellant’s conviction under OCGA § 40-6-391 (a) (4). Page, supra.

Decided April 30, 1993.

Manheim & Jones, Alan C. Manheim, B. Clark Jones, for appellant.

Patrick H. Head, Solicitor, Clifford L. Granger, Jr., Assistant Solicitor, for appellee.

Judgment affirmed in part and vacated in part.

Pope, C. J., and Birdsong, P. J., concur.

       In any event, Hoffman’s conviction under OCGA § 40-6-391 (a) (4), based on the intoximeter results, was vacated in Division 2, infra.


author: Judge John W. Sognier.

text:
    A91A1862.
    BOHANNON v. THE STATE.
    (431 SE2d 149)
   Judge John W. Sognier.

Charles Edward Bohannon was convicted of burglary and kidnapping with bodily harm. He appealed directly from the denial of a motion for new trial that had been filed more than 30 days after entry of the judgment of conviction. In Bohannon v. State, 203 Ga. App. 783 (417 SE2d 679) (1992), a majority of this court affirmed the judgment of the trial court on the ground that Bohannon’s motion raised only issues that should have been raised in a timely motion for new trial and thus he should have sought leave to file an out-of-time appeal instead of filing an extraordinary motion for new trial. The Supreme Court granted certiorari, reversed this court’s judgment, and remanded the case for a decision on the merits. Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993). Accordingly, the prior opinion and judgment of this court are vacated, and we will address appellant’s enumerations of error on the merits.

1. Appellant enumerates the general grounds. On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988); Blackshear v. State, 199 Ga. App. 839 (1) (406 SE2d 269) (1991).

At trial, evidence was adduced that appellant and the victim had been romantically involved for several years and that appellant had repeatedly abused and intimidated the victim physically and emotionally. The victim testified that on the night of February 23, 1989, appellant telephoned her and demanded that she drive him from her Douglas County home to Rome. She testified that he sounded drunk and became angry when she refused his insistent demands. She walked next door to alert her neighbor to her plight, but ran back into her house when she saw appellant arrive in a relative’s vehicle. Appellant kicked in her door and door frame, grabbed her by the neck (which was still very sensitive because of surgeries necessitated to promote healing of burns caused by appellant), threw her on the bed, and told her she was going to die. He then struck her in the face so hard that she “saw stars.” She testified that he kept screaming at her that she was going to die and that she had to take him to Rome. He forced her outside her house and into the car, still holding her by the neck. He ordered her to drive to Rome and repeatedly stated he would kill her if she did not comply. When they reached his destination, he got out and warned her not to call police. She drove back to her home and reported the event to sheriff’s deputies who had been called by neighbors when they discovered the damage to her door.

Given the substance of the prior telephone conversation and the fact that appellant kicked in the door, the jury was authorized to conclude that appellant entered the victim’s home against her will and that he intended to kidnap her at the time he entered. See OCGA § 16-7-1 (a); see also Addis v. State, 203 Ga. App. 270 (416 SE2d 837) (1992). Further, the jury was authorized to conclude from the victim’s description of appellant’s actions that evening, particularly when combined with the evidence of his prior acts of intimidation and violence and her resulting fear of him, that she was forced to drive to Rome against her will in violation of OCGA § 16-5-40 (a) and that she received bodily injuries within the meaning of OCGA § 16-5-40 (b). See Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358) (1989); Love v. State, 190 Ga. App. 264, 265 (1) (378 SE2d 893) (1989). The evidence authorized any rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Addis, supra (burglary); Green, supra at 896 (1) (kidnapping with bodily injury).

Moreover, contrary to appellant’s contentions, the burglary charge did not merge with the kidnapping charge. To establish the crime of burglary, the State needed to prove only that appellant entered the victim’s home without authority and with intent to commit a felony (i.e., kidnapping), and did not have to prove actual commission of the felony. Childs v. State, 257 Ga. 243, 251 (12) (357 SE2d 48) (1987). “The offense of burglary was completed when the defendant entered or remained in [the victim’s] house with the intent to commit the offense of kidnapping, and it was not necessary to the burglary charge to prove that he actually committed the offense of kidnapping. Hence, the offense of kidnapping was not included in the offense of burglary as a matter of fact or of law. He therefore was convicted properly of both offenses. [Cit.]” (Emphasis omitted.) Id. at 252 (12).

2. In four enumerations of error appellant challenges the admission, over his objections, of evidence of appellant’s prior acts of violence against the victim and other women. The victim and other witnesses testified that appellant had often beaten the victim, leaving her with bruises, black eyes, and a broken nose. One year prior to the incident at issue, appellant doused the victim with rubbing alcohol and ignited it, resulting in burns over 35 percent of her body. Evidence also was adduced that appellant verbally abused the victim and isolated her from her family. The victim testified that she had taken out warrants for appellant’s arrest on prior occasions but had been coerced by appellant and his family to withdraw her complaints.

In addition to the victim’s testimony, appellant’s former wife testified that appellant had beaten, kicked, slapped, and threatened her numerous times during their marriage and that she was still afraid of him. Delores Byars, an acquaintance of the victim who testified concerning her observations of appellant’s prior acts of violence against the victim, also testified that appellant had committed violent and abusive acts against her.

(a) Contrary to appellant’s assertions, the record reveals that the State did give timely notice of its intention to present evidence of prior violent acts against the victim and appellant’s former wife as dictated by USCR 31.1, 31.3, and the trial court held a pretrial hearing and made the findings required by USCR 31.3 as applied in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). We disagree with appellant that the State’s notice was insufficient merely because it indicated that the State would seek to introduce evidence of multiple acts of violence and intimidation but did not list specific dates and details of each such act. “The witnesses themselves were unable to specify the exact date[s] on which the prior incident^] had occurred, and the appellant has not shown that this lack of specificity misled or prejudiced him in any way. [Moreover, the court granted appellant additional time to interview the witnesses and gather information concerning the prior acts.] Accordingly, we hold that ‘(i)n revealing to appellant the information which it had, the prosecution complied with (USCR) 31.3.’ [Cit.]” Parcell v. State, 198 Ga. App. 439, 440 (1) (401 SE2d 628) (1991). Compare Maxwell v. State, 262 Ga. 73, 74 (2) (a) (414 SE2d 470) (1992) (notice held insufficient because State gave no notice of intent to introduce evidence of prior bad acts and merely included information about such acts in a 780-page file given to defendant).

(b) Appellant also contended below and on appeal that the prior acts were not sufficiently similar to the charged crimes to justify an exception to the general rule that evidence of prior bad acts is not admissible unless the accused first puts his character in evidence.

In Williams, 261 Ga. at 641-643, the Supreme Court outlined a three-pronged inquiry that must be satisfied before evidence of prior similar transactions may be admitted. The trial court must- hold a hearing at which the State is required to show that (1) the evidence is proffered not to raise an improper inference as to the accused’s character, but for some appropriate purpose recognized as an exception to the general rule of inadmissibility; (2) the accused committed the prior acts; and (3) there is a sufficient logical connection or similarity between the prior difficulties and the crime charged so that proof of the former tends to prove the latter. The trial court’s determination that these three showings have been made must be a part of the record. Id. at 642, n. 3. Although earlier decisions had not considered evidence of prior difficulties between the accused and the victim to be subject to the same rules governing admission of similar crimes, see Rainwater v. State, 256 Ga. 271, 272 (1) (347 SE2d 586) (1986), in Maxwell the Supreme Court held that the three-pronged inquiry for similar transaction evidence outlined in Williams would be applied to evidence of prior difficulties between the accused and the victim. Maxwell, supra at 75 (2) (b); see Oliver v. State, 207 Ga. App. 681 (428 SE2d 681) (1993).

The second prong of the Williams test was met because appellant’s identity as the perpetrator of the prior acts was not in question. As to the first prong, our courts have long held that evidence of prior difficulties between an accused and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim. Rainwater, supra at 271-272 (1); Cooper v. State, 256 Ga. 234, 235 (1) (347 SE2d 553) (1986); Roberts v. State, 123 Ga. 146, 156-160 (5) (51 SE 374) (1905). Evidence of similar violent or hostile acts against others likewise may be admitted to show bent of mind or course of conduct. Norton v. State, 199 Ga. App. 27 (403 SE2d 884) (1991); Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989). At trial, appellant’s defense consisted primarily of seeking to establish that the victim was not injured on the night in question and was not taken to Rome against her will. Given this defense, evidence of prior acts of violence against the victim and others was properly admitted to show his motive, scheme, course of conduct, and bent of mind — i.e., his continuing pattern of abusing and intimidating the victim and other women is evidence that he likely abused and coerced the victim on this occasion and that she was too afraid of him to refuse his demands. See Rainwater, supra; Cooper, supra; Roberts, supra; see also Morris v. State, 143 Ga. App. 713 (240 SE2d 99) (1977). Accord Norton, supra at 28-29; Jordan, supra.

With regard to the third prong of the Williams test, we hold the evidence of prior similar transactions and prior difficulties had a sufficient logical connection to the charged crimes. Viewed as a whole, the evidence at issue comprised a series of acts tending to show a course of conduct continuing up to the time of commission of the charged crimes, and this course of conduct was relevant to the issues of intent, motive, scheme, bent of mind, and lack of consent. See Roberts, supra at 159-160. The fact that assault differs from kidnapping and burglary does not necessarily make evidence of the former inadmissible in a trial for commission of the latter, for the true test of admissibility is not the number of similarities between the crimes, but whether the evidence of prior incidents was substantially relevant for some purpose other than to show that the defendant likely committed the crime because he is a person of bad character. Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991). This evidence met that test and accordingly was properly admitted.

(c) Appellant contends in his briefs that the trial court failed to weigh the probative value of this evidence against its prejudicial effect. This issue, however, was not included in appellant’s enumerations of error. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs to include issues not raised in the enumerations of error. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991). Therefore, this issue is not properly before this court for review.

Moreover, even assuming, without deciding, that the trial court is required to apply this balancing test, compare Rainwater, supra at 272 (1) and n. 2, with Cooper, supra at 235 (1), considering the probative value of this evidence, the trial court did not err by concluding that any prejudice to appellant was outweighed by its relevance to the issues on trial. See Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991); see also Cooper, supra at 234-235 (1).

(d) The trial court denied appellant’s motion for mistrial made after Byars testified concerning appellant’s acts of violence against her. As appellant correctly stated below, these incidents were not included in the similar transaction notice submitted by the State. Pretermitting the question whether, as the State urges, these acts against Byars were admissible as part of the res gestae of violent acts against the victim, “we hold that in the context of the other evidence in the case [that was properly admitted], it is highly probable that [admission of this evidence] did not contribute to the verdict. [Cits.] Accordingly, this enumeration of error established no ground for reversal.” Parcell, supra at 440 (2).

Decided April 21, 1993 —

Reconsideration denied May 3, 1993

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, for appellee.

3. In his four remaining enumerations appellant contends certain other evidence adduced by the State improperly placed his character in issue. We do not agree.

(a) Testimony that appellant threatened the victim during the kidnapping was admissible over his “character” objection as part of the res gestae even if it incidentally placed appellant’s character in evidence. See Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86) (1983).

(b) The testimony appellant challenges in his seventh enumeration of error does not appear in the record; therefore, this enumeration presents nothing for this court to review. Polley v. State, 203 Ga. App. 825, 826 (1) (418 SE2d 107) (1992).

(c) The testimony at issue in Enumeration 8 was part of the prior transaction evidence held admissible in Division 2, and thus the trial court did not err by admitting this evidence.

(d) The trial court denied appellant’s motion for mistrial made after the victim referred to appellant as a “drug addict.” A review of the transcript reveals that she made that comment on cross-examination as part of her answer to appellant’s counsel’s query about why she and appellant argued. “Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. [Cit.] Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and [its] ruling will not be disturbed absent an abuse of discretion. [Cit.] Under these circumstances we find no abuse of discretion. The trial court did not err in denying appellant’s motion for a mistrial.” Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538) (1984).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0841.
    PULLEN v. THE STATE.
    (431 SE2d 696)
   Birdsong, Presiding Judge.

Appellant Keith Pullen, asserting two enumerations of error, appeals his judgment of conviction of aggravated assault with intent to rape and his sentence; he was found not guilty of burglary. Held:

1. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated assault with intent to rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the trial court erred by restricting his right to present his entire defense. Specifically, appellant claims the trial court became frustrated with the repeated violation of the rape shield statute by a defense witness, held the witness in contempt in front of the jury, and in essence, caused defense counsel to withdraw the witness from the stand prematurely, thereby depriving the jury of the full measure of this witness’ impeaching testimony of the alleged victim. Particularly, it is claimed this witness would have discredited the victim’s testimony that she barely knew appellant. Appellant also asserts the trial court anticipated that a second witness, who allegedly had been intimidated by knowledge of the trial court’s threat to jail the first witness, likewise would violate the rape shield statute; and that the court thereafter chided the witness and unduly restricted his impeaching testimony regarding the scope of the victim’s prior association with and knowledge of appellant.

Appellant testified in his own behalf denying that he had committed the offenses. However, appellant admitted entering the victim’s apartment (though claiming at her invitation), kissed her while she was seated on a kitchen counter, lost his balance, accidentally fell to the floor pulling the victim with him; and that in the course of the fall the victim hit her head on the counter, and thereafter became hysterical and ran from the apartment. Appellant claimed he was completely surprised by the victim’s response, and that he subsequently fled to his own apartment located nearby. Appellant’s presence in the apartment thus was not contested; rather, the jury was confronted with issues of witness credibility as to what had happened in the apartment between appellant and the victim.

As its basic trial strategy, the defense relied on appellant’s claim of an accident and his denial that he had committed the averred offenses, and sought to enhance the posture of the defense by discrediting the victim’s credibility. In support of this strategy, the defense called two witnesses, friends of appellant, who were to testify as to certain inconsistencies regarding prior statements attributed to the victim.

(a) The first defense witness, Freeman, after having previously been warned to be responsive to counsel’s questions and not to volunteer such unsolicited information, testified that he had slept with the victim. At this point, the trial court stated in the presence of the jury: “Young man, I’m going to hold you in contempt.” The jury was removed from the courtroom; an out-of-court hearing was conducted; subsequently, trial resumed; defense counsel elected to ask his witness no further questions; the witness was subjected to cross-examination before being excused. At no point in the proceedings did defense counsel move for a mistrial (compare Flourney v. State, 257 Ga. 265 (357 SE2d 574)) or otherwise object on the grounds that the trial court’s comment in the jury’s presence constituted error; further, appellant does not enumerate as error these remarks in the jury’s presence. As the issue was not raised below by timely and specific objection, it is not preserved on appeal. See Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691). Further, this issue was not reasonably raised in the enumeration of errors, and “[o]n appeal an enumeration of error cannot be enlarged by [a] brief to give appellate viability to an issue not contained in the original enumeration.” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

(b) Likewise, defense counsel, by electing not to make a timely motion for mistrial or to seek other corrective action timely, failed to preserve any issue for appellate review as to whether the trial court erroneously restricted his right to present his entire defense. See Lawton, supra.

Defense counsel testified at the hearing on the motion for new trial that at the time of the incident with the witness Freeman, he did not want a mistrial'. This court is not oblivious to the posture of the trial at that time, which included the jury’s exposure to the repeated remark of the witness that he had slept with the victim, which had no relevance to this case and which clearly would impugn the victim’s character. Further, even after another defense witness, Bagiatis, testified and certain of his testimony had been ruled inadmissible by the trial court, appellant’s counsel did not make a timely motion for mistrial, or otherwise assert on the record that appellant had been denied a reasonable opportunity to present his entire defense. A party cannot ignore, during trial, what he thinks to be an injustice, taking his chance on a favorable verdict, and then complain following an unfavorable verdict. Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145).

However, appellant’s counsel did timely and specifically object after the trial court ruled that the witness, Bagiatis, could not testify as to seeing the victim “at a bar or something” at a time when appellant and other people were also present. The trial court did not abuse its discretion in excluding such testimony.

(c) We recognize that the curative instruction given to the jury, regarding the exclusion of testimony of the witness Freeman, was less than a model of clarity. However, an examination of that charge in its totality and that portion of the record pertaining to Freeman’s testimony reveals the jury was not instructed, as averred by appellant, to disregard Freeman’s direct testimony in its totality. Moreover, on cross-examination, Freeman subsequently testified that he had never seen the victim act the least bit flirtatious with appellant even though he had been with both appellant and the victim in large groups on a number of different occasions. Thus, the jury was made aware through Freeman’s testimony that the victim previously had been present in group settings with appellant.

(d) Assuming arguendo that all error asserted within this particular enumeration had been adequately preserved for appeal, we are satisfied the trial court did not abuse its discretion, under the circumstances of this case, in excluding the testimony in question. The testimony was of questionable probative value, particularly in relation to its potential for prejudice. Although a neighbor testified the victim had told her, after she had run out the door of her residence pulling up her shorts, that her attacker was somebody she had met at a party, someone she did not really know or know how he knew where she lived, and someone who was not a friend, the victim testified during cross-examination that she had not told the neighbor that she did not know who her attacker was or that she did not “even know him really.” Further, although denying she had ever been with appellant at a party at Bagiatis’ house, the victim testified she met appellant at a pool party two years ago, and had known him since that time. She testified in essence that after she started seeing one of appellant’s friends she then saw appellant frequently at his friend’s house. She further testified that she had not seen appellant for about seven months prior to the attack. She considered appellant an “acquaintance kind of friend.” Moreover, the record tends to refute that either of the defense witnesses could testify as to any prior sexual relationship between appellant and the victim, thus underscoring the potential for prejudice in the proposed testimony’s attack on the victim’s character by innuendo. In fact, in view of appellant’s claim of an accident, the trial court was certainly within its discretion in excluding evidence of the victim’s flirtation with appellant on any prior occasion and her previous presence with appellant and others at bars. In this regard, appellant did not testify as to any prior sexual activity with the victim and, although claiming he had once spent the night in her apartment, admitted subsequently that he had slept on the couch. He was allowed, however, to testify as to her prior flirtatious conduct with him, including her grabbing of his buttocks and her rubbing of his back. One of the defense witnesses was allowed to testify as to a prior occasion when the victim made a so-called “come-on” to appellant by sitting upon his lap and hugging him. Appellant denied striking the victim, and consistently maintained the victim had bumped her head and had become hysterical when appellant accidentally fell, pulling her off a counter as he was kissing her. He testified to no other form of sexual contact, consensual or otherwise, between the victim and himself on the day in quéstion. Under the circumstances of this case, we find no abuse of discretion by the trial court in excluding the evidence at issue. A trial court may exercise its discretion in balancing the probative value of evidence against its tendency to prejudice the jury unduly in determining admissibility. Cf. Carroll v. State, 261 Ga. 553 (2) (408 SE2d 412). Assuming without deciding the excluded evidence had some logical relevance, the posture of the record reveals that the trial court could exclude the evidence in question without breaching its discretion, on the grounds that it failed to meet the legal relevance test; that is, that the probative value of the evidence was outweighed, under the attendant circumstances, by its tendency to unduly prejudice the jury. See Carroll, supra. It is well settled that on appeal the correct ruling of a trial court will not be reversed regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268); accord Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

3. The record reflects that, although the written amended motion for new trial asserts denial of effective assistance of counsel as one of the grounds for new trial, neither the motion nor any other document in the record contains an express request for an evidentiary hearing on this issue. See generally Dawson v. State, 258 Ga. 380 (2) (369 SE2d 897). Nevértheless, a subsequent hearing on the motion for new trial was held, which was announced without opposition, as being for the purpose of taking testimony as to the first two issues contained in the amended motion for new trial, which included the ground of effective assistance. Following this hearing the trial court made no express findings regarding that issue, but denied the motion for new trial, as amended, on each ground.

It is asserted that actual prejudice to the defense need not be established to obtain reversal, as a conflict of interest arose from his counsel’s duty to provide effective adversarial representation of appellant, in conflict with counsel’s desire to protect the witness Freeman, who was the son of a fellow lawyer and good friend, from being cited for contempt.

The United States Supreme Court clarified in Strickland v. Washington, 466 U. S. 668, 692 (104 SC 2052, 80 LE2d 674) that “[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of . . . counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. See United States v. Cronic, [466 U. S. 648, 659, and n. 25 (104 SC 2039, 80 LE2d 657)]. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.” We have examined the entire record, including the transcript of the motion for new trial, and find that appellant has failed to show such denial of assistance or interference with counsel as to rise to the level of such a Sixth Amendment denial, within the meaning of Cronic, supra, and Strickland, supra. In fact, “only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” Cronic, supra at 662. The circumstances in this case do not come close to justifying such a presumption. However, Strickland, supra at 692, citing Cuyler v. Sullivan, 446 U. S. 335 (100 SC 1708, 64 LE2d 333), also recognized a type of actual ineffectiveness claim, under the Sixth Amendment, which is said to warrant a similar, though more limited, presumption of prejudice. The United States Supreme Court also observed, “[i]n Cuyler v. Sullivan, [supra] at 345-350, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. . . . Even so, the rule is not quite the per se. rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” (Emphasis supplied.) Strickland, supra; accord Tarwater v. State, 259 Ga. 516 (383 SE2d 883). Actual conflict is not established by ingenious claims in appellate briefs inadequately supported by the record.

Further, “ ‘[a] mere possibility of conflict is insufficient to impugn a criminal conviction amply supported [, as in this case,] by competent evidence.’ ” Daniels v. State, 192 Ga. App. 446, 449 (385 SE2d 107); accord Cuyler, supra at 350. Not only has appellant failed to carry his burden in this matter, but a reasonable inference may be drawn from the testimony of appellant’s former counsel at the motion for new trial hearing, coupled with an examination of the circumstances surrounding defense counsel’s conduct at trial, that defense counsel made an informed choice to proceed as a matter of trial tactic. For example, it can reasonably be inferred that defense counsel acted only incidentally to protect any witness from a contempt citation, and primarily to protect continually the case from resulting in a mistrial, appellant having testified in his own behalf that the injury to the victim happened during an accident and, it being perceived by. counsel, that appellant had benefitted from the jury’s awareness, albeit unauthorized, of the victim’s alleged acts of promiscuity with the witness Freeman.

In view of the lack of showing of an actual conflict of interest, the proper test to be employed regarding effectiveness of counsel is the two-prong test of Strickland, supra. However, pretermitting whether defense counsel’s performance was deficient, within the meaning of Strickland, supra, is the question whether appellant has established by a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See generally Cofield v. State, 204 Ga. App. 776, 779 (420 SE2d 597); accord Smith v. State, 262 Ga. 480 (422 SE2d 173); Hand v. State, 205 Ga. App. 467, 469 (422 SE2d 316). Appellant has failed to establish such prejudice of result within the meaning of Strickland, supra.

Decided April 16, 1993.

Joseph J. Drolet, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Anita T. Wallace, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A92A0484.
    BURGESS et al. v. MEINKEN.
    (431 SE2d 704)
    Decided April 21, 1993.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellants.

      Glenn Zell, Rodney S. Zell, for appellee.
   Judge John W. Sognier.

After appellee Meinken was acquitted of a felony charge by operation of law, the superior court ordered the DeKalb County Police Department to expunge his arrest record, ostensibly pursuant to OCGA § 35-3-37. In Burgess v. Meinken, 204 Ga. App. 600 (420 SE2d 329) (1992), this court reversed the judgment of the trial court. However, on certiorari, the Supreme Court reversed the judgment of this court. Accordingly, the prior judgment of this court is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is reversed and the case is remanded for an application of the balancing test posited by the Supreme Court in Meinken v. Burgess, 262 Ga. 863 (426 SE2d 876) (1993).

Judgment reversed.

Pope, C. J., and Johnson,- J., concur.


text:
    A93A0105.
    THE STATE v. LAWRENCE.
    (431 SE2d 409)
   Judge John W. Sognier.

According to the reconstructed record of this bench trial, Virginia Lawrence was a passenger in a vehicle which was stopped by the Georgia State Patrol at a routine roadblock check for driver’s licenses and insurance. Although the driver’s insurance papers were in order and his valid license showed him to be of lawful age, the investigating officer smelled alcohol and tested the driver. The results were too low to charge the driver with any offense. Thereafter, the officer approached the vehicle and questioned Lawrence and another passenger seated therein. When the two girls denied that they had been drinking, the officer made one passenger take an alcosensor test, which indicated the presence of alcohol. When the officer asked them if they still maintained that they had not been drinking, Ms. Lawrence admitted that she had been drinking earlier. In response to additional questioning, she told the officer that she was not yet 21, whereupon she was formally arrested and charged with possession of alcohol by a person under the age of 21, in violation of OCGA § 3-3-23 (a) (2). Neither alcohol nor empty containers were discovered in the vehicle. After the investigating officer testified as to the incriminating statements Ms. Lawrence had made in response to his questioning, defense counsel made an oral motion to exclude from evidence her answers to these questions, on the ground that she had not been cautioned of her rights before such questioning. The trial court heard evidence and, having discredited the factual bases for the officer’s stated suspicions, concluded that Miranda warnings were required before the officer could interrogate a passenger of a vehicle stopped at a routine roadblock, on a minimal suspicion that the passenger might be an underage person in possession of alcohol. Accordingly, the trial court granted the defense motion and sua sponte directed a verdict of acquittal. Ostensibly pursuant to OCGA § 5-7-1 (4), the State appeals, enumerating as error the grant of the motion to suppress.

Although “appellee has not filed a motion to dismiss, ‘we are required to examine the record to make certain we possess jurisdiction. (Cits.); Rule 32 (d) of our court. . . requires that whenever it appears to the court that it has no jurisdiction of a pending appeal, it will be dismissed whenever and however its lack of jurisdiction may appear. (Cit.)’ [Cit.]” State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278) (1991). Pursuant to OCGA § 5-7-1 (4), “[a]n appeal may be taken by . . . the State of Georgia ... in criminal cases . . . [f]rom an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury” (Emphasis supplied.) In the case of a bench trial, the statute permits appeals from the grant of a motion to suppress, made and ruled upon prior to the attachment of jeopardy. “[I]f a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the [S]tate.” (Emphasis supplied.) State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). However, a suppression motion which has been made and ruled upon in mid-trial is not an order which may be appealed by the State. Moreover, “the government may not appeal a trial court’s grant to a criminal defendant of a directed verdict of acquittal based on an insufficiency of the evidence to support a conviction, [even if the directed verdict is erroneously granted,] in that a new trial would be barred by the double jeopardy [provisions of the Georgia and federal constitutions].” State v. Williams, 246 Ga. 788, 789 (1) (272 SE2d 725) (1980). See also Morris v. State, 262 Ga. 446 (421 SE2d 524) (1992).

Decided May 3, 1993.

James E. Cornwell, Jr., Solicitor, for appellant.

Christopher W. Duncan, for appellee.

“Accordingly, we hold ‘that no jurisdictional basis exists in this case for a direct appeal [by the State].’ [Cit.] In so holding, we express neither approval nor disapproval of the trial court’s ruling. Our holding is that, under existing statutory authority, we have jurisdiction neither to affirm the ruling if correct nor to reverse it if erroneous.” State v. Brown, 185 Ga. App. 701, 702 (365 SE2d 865) (1988).

Appeal dismissed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0115.
    KELLER v. THE STATE.
    (431 SE2d 411)
   Cooper, Judge.

Appellant was convicted by a jury of obstructing an officer (two counts) and escape and appeals from the judgment entered on the convictions.

Evidence presented at trial shows that three officers in separate patrol cars rushed to appellant’s residence, with lights and sirens on, in response to a 911 call made by appellant stating that an armed man had brpken into her home and was in the process of robbing her. When the officers arrived, the suspect was gone. Appellant first told the officers that the suspect broke in through the window. After the officers inspected the window and told her there was no sign of a forced entry, appellant said he must have broken in through the door. Again the officers’ inspection revealed no sign of a forced entry. Appellant then stated that the suspect previously had been living in her home and had a key but that he had been there against her wishes that night and had threatened her. Appellant appeared to be intoxicated and was hostile to the officers. After speaking with the 911 operator to confirm the details of appellant’s original report, the officers arrested appellant for making a false report. Appellant was uncooperative and verbally abusive, and as one of the officers led her to a police car, she kicked the officer, broke away and ran inside her home. The officers followed her and took her back into custody. This time the three officers carried her to the police car. In her struggle, appellant kicked two of the officers in the chest and leg. One of the officers had to be hospitalized and was unable to return to work for several weeks. Both before and after appellant was placed in the police car, she yelled threats at the officers.

1. In her first enumeration of error, appellant argues that the trial judge improperly expressed her opinion of the evidence in violation of OCGA § 17-8-57 when she commented to appellant’s counsel that “having a key is a pretty good indication of a right to be there.” However, appellant did not object or move for mistrial when this comment was made, and “ ‘(t)he question of whether (§ 17-8-57) has been violated is not reached unless an objection or motion for mistrial is made.’ [Cits.] We therefore find that [appellant] waived the right to contend that the court violated § 17-8-57.” Walker v. State, 258 Ga. 443, 444 (3) (370 SE2d 149) (1988).

2. Appellant also contends that the trial court erred in allowing the State to cross-examine appellant regarding what she said in the police car en route to the police station. Officer Debbie Hollan, who was transporting appellant to the station in her vehicle, turned on her personal tape recorder to record what was said during the drive. Hollan testified that she did this for her own protection, in case appellant later claimed the officer had mistreated her in some way. After a pretrial hearing, the trial court excluded the tape as evidence because it had not been provided to appellant ten days prior to trial as required by OCGA § 17-7-210 (a). The State made no reference to the tape or its contents during its case-in-chief or in rebuttal. See OCGA § 17-7-210 (c). However, after appellant testified on direct examination that although she made various comments to and about the officers, she did not actually threaten them, the State was allowed to cross-examine appellant about certain things she said during the drive to the station. After appellant introduced the issue of what she said to the officers in her direct testimony, the trial court did not err in allowing cross-examination on that issue, even if the cross-examination included references to evidence the State could not introduce in its case-in-chief or rebuttal. See Stuldivant v. State, 202 Ga. App. 64 (1) (413 SE2d 247) (1991). Accordingly, this enumeration of error is without merit.

Decided May 3, 1993.

Daniel L. Henderson, for appellant.

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

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A93A0156.
    BACHE v. THE STATE.
    (431 SE2d 412)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, for operating a moving vehicle under the influence of alcohol to an extent that it was less safe for him to drive (Count 1) and driving a moving vehicle with an alcohol concentration of .10 grams or more (Count 2). Pursuant to defendant’s request for a court-appointed attorney, the trial court entered a determination of defendant’s indigence on July 13, 1992. That same day, defendant was arraigned without the benefit of counsel and entered a plea of not guilty and executed a form entitled, “WAIVER OF RIGHT TO TRIAL BY JURY.” On July 28, 1992, an assignment of defendant’s court-appointed attorney was entered and on August 25, 1992, defendant appeared in court with his attorney for a bench trial. Defendant was found guilty of the offenses charged and sentenced to serve 12 months in the county jail. This appeal followed. Held:

1. In his sole enumeration, defendant contends the trial court’s failure to provide him with an attorney during arraignment violated his Sixth and Fourteenth Amendment right to the assistance of counsel at a critical stage of the criminal proceeding.

Defendant was entitled to “the benefit of counsel at all stages of the arraignment and sufficiently prior thereto for adequate preparation. On this subject generally, see 22 C.J.S., Criminal Law, § 411, p. 632 (including pocket part) and 14 Am. Jur., Criminal Law, § 167 (pocket part, p. 174).” Fair v. Balkcom, 216 Ga. 721, 727 (119 SE2d 691). See State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43). However, “reversal is by no means automatic for absence of counsel. The harmfulness of counsel’s absence must appear. State v. Hightower, 236 Ga. 58 (222 SE2d 333) (1976). Though under Hightower the state has the burden of demonstrating ‘beyond a reasonable doubt that the failure to provide counsel at the commitment hearing did not contribute to the verdict obtained,’ 236 Ga. at 61, the burden has been carried where ... no harm is alleged.” Dixon v. Hopper, 237 Ga. 811 (229 SE2d 656). Further, “an appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for further proceedings.” State v. Hightower, supra, 236 Ga. at 61.

In the case sub judice, defendant argues that “[i]f [he] had been represented by counsel at Arraignment he would not have signed a waiver of his right to trial by jury, and he would have filed appropriate motions, demurrers, and pleas, which could have been beneficial to his defense.” However, defendant fails to explain what “motions, demurrers, and pleas” would have enhanced his defense and he does not challenge the sufficiency of the evidence on appeal. Further, the record reveals that defendant’s trial attorney was appointed almost a month before trial but that he never asserted a jury trial demand or any “motions, demurrers, and pleas.” These particular circumstances reveal, beyond a reasonable doubt, that defendant suffered no harm as a result of the absence of defense counsel at arraignment.

2. Defendant argues that the trial court’s failure to provide him with an attorney during arraignment violated Rule 33.2 of the Uniform Rules for the Superior Courts. This rule provides, in pertinent part, as follows: “A defendant shall not be called upon to plead until he has an opportunity to retain counsel, or if he is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if his counsel makes a reasonable request for additional time to represent the defendant’s interest, or if the defendant has not had a reasonable time to consult with counsel.”

There is little doubt that application of Rule 33.2 of the Uniform Rules for the Superior Courts in the case sub judice would have given defendant the benefit of counsel at all stages of the arraignment and sufficiently prior thereto for adequate preparation. However, since the record indicates, beyond a reasonable doubt, that no harm resulted in accepting defendant’s plea of not guilty in the absence of defense counsel, we cannot say that noncompliance with Rule 33.2 requires reversal of defendant’s conviction. See Division 1 of the opinion.

3. In Count 1, defendant is charged with violating OCGA § 40-6-391 (a) (1), and in Count 2, he is charged with violating OCGA § 40-6-391 (a) (4). A “MEMORANDUM OF EVIDENCE” executed by the trial court reveals that the offenses charged in Counts 1 and 2 are based on the same transaction and occurrence. It is therefore apparent that defendant was tried and convicted on an accusation which charged him with but one offense committed in different ways. See Tomlin v. State, 184 Ga. App. 726, 727 (1) (362 SE2d 489). However, the written sentence fails to reflect upon which count defendant was sentenced. Consequently, since defendant cannot be sentenced on both counts of the accusation (Tomlin v. State, supra, 184 Ga. App. at 728 (3)), defendant’s sentence must be vacated and the case remanded with direction that the trial court resentence defendant with the trial court’s sentence reflecting whether the new sentence is on Count 1 or Count 2. Mattarochia v. State, 200 Ga. App. 681, 685 (7) (409 SE2d 546).

Decided May 3, 1993.

David B. Brown, for appellant.

Keith C. Martin, Solicitor, for appellee.

Judgment affirmed as to the driving under the influence of alcohol conviction; judgment vacated as to the sentence and case remanded with direction.

Beasley, P. J., and Cooper, J., concur.

       Defendant’s trial attorney filed a notice of appeal on defendant’s behalf and entered a request to withdraw as counsel, stating that he did not wish to represent defendant on appeal. On September 18, 1992, the trial court entered a determination that defendant was indigent and appointed another attorney to represent defendant on appeal.


text:
    A93A0247.
    FOSTER v. ALEXANDER et al.
    (431 SE2d 415)
   Cooper, Judge.

In August 1990, appellees filed a lawsuit against appellant to recover for personal injuries received in an automobile accident in February 1989. Due to appellant’s service in the United States Navy in the Persian Gulf, the trial court issued a stay of the proceedings on March 22, 1991 pursuant to the Soldiers’ & Sailors’ Civil Relief Act, 50 App. USCA § 521. The stay order recited that it would remain in effect until a motion to lift the stay was filed and a showing was made that appellant’s ability to conduct his defense was no longer materially impaired by his military service. In July 1992, appellees filed a motion to open the stay, and in response to that motion, appellant’s father submitted an affidavit, stating therein that appellant was still in the Navy and was stationed in Bethesda, Maryland. The trial court granted the motion to lift the stay and this appeal followed.

The Soldiers’ & Sailors’ Civil Relief Act provides that a stay in the proceedings should be granted “unless in the opinion of the trial judge the applicant’s ability to conduct his defense is not materially affected by reason of his military service. [Cit.]” Underhill v. Barnes, 161 Ga. App. 776, 777 (2) (288 SE2d 905) (1982). The determination of whether a defendant’s ability to conduct his defense is impaired by his military service lies within the discretion of the trial judge. Vlasz v. Schweikhardt, 178 Ga. App. 512 (1) (343 SE2d 749) (1986).

Decided May 3, 1993.

Alexander & Vann, William C. Sanders, for appellant.

Appellant argues that he was entitled to a stay as a matter of law because appellees failed to present any evidence that his military service did not impair his ability to conduct his defense. “The [A]ct places no burden upon any one to produce evidence [on the impairment to conduct a defense]; but in view of the fact that it does authorize a judge to deny the [stay] when, in his opinion, there is no impairment, it is obvious that the judge has full power to make such inquiry as he may feel the justice of the case demands. ... It matters not which party produces the evidence or from what source it comes; so long as it is legal evidence relevant to the issue the judge is authorized to consider it, and if in his opinion there is no material impairment by reason of the applicant’s military service he may deny a stay.” Gates v. Gates, 197 Ga. 11, 16 (2) (28 SE2d 108) (1943). The trial judge found that due to the change in appellant’s duty station from overseas to Maryland, his service in the military no longer materially affected his ability to conduct his defense and that the action could proceed without prejudice to appellant or his rights. The trial judge also noted the availability of modern technology such as conference telephone communications, “FAX” communications and video depositions and further stated that if appellant’s military service prevented him from appearing at any scheduled trial, appellant could seek a continuance. There was no evidence that appellant had sought and been denied a leave of absence to attend any of the proceedings. Furthermore, appellees asserted that they were only seeking to recover the policy limit of appellant’s insurance policy and that no judgment would be enforced against appellant in excess of the policy limits. “ ‘[T]he judge was authorized to find, from the absence of specific facts, such as that an unsuccessful attempt by the applicant to obtain a leave of absence from the (Navy) had been made, that such facts did not exist or else would have been alleged. . . .’ [Cit.]” Underhill v. Barnes, supra at 777. The judge was also authorized to consider the fact that appellees were not seeking to recover any amount in excess of the policy limits. McCoy v. McSorley, 119 Ga. App. 603 (1) (168 SE2d 202) (1969). Upon review of all of the evidence, we cannot conclude that the trial judge abused its discretion in lifting the stay. See Underhill v. Barnes, supra.

Judgment affirmed.

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

Robert M. Beauchamp, for appellees.


author: Beasley, Presiding Judge.

text:
    A93A0472.
    ALFORD v. STATE OF GEORGIA.
    (431 SE2d 393)
   Beasley, Presiding Judge.

This is a drug forfeiture proceeding. OCGA § 16-13-49. Sarah Alford appeals the trial court’s grant of the State’s motion to dismiss her answer, because it did not contain information required by OCGA § 16-13-49 (o) (3). She also appeals the denial of her motion to dismiss the State’s complaint, because a hearing was not held within 60 days after service of the complaint as required by OCGA § 16-13-49 (o) (5).

On August 15, 1991, a narcotics task force executed a search warrant at the mobile home in which Rickey and Sarah Alford resided, seizing 12.9 grams of cocaine, $150 in U. S. currency, and a handgun. Rickey pled guilty to various criminal charges, including violations of the Georgia Controlled Substances Act.

On November 18, the district attorney, on behalf of the State, filed a complaint for forfeiture of the currency and the handgun, as well as the mobile home and tract of land on which it sits. The complaint listed the Alfords as the only known owners and a finance company in Barnesville as the only known interest holder. The complaint stated that the currency and handgun were being held by the task force, and the real estate and mobile home were being held by the Alfords.

Sarah was served with the summons and complaint on November 20, and Rickey was served the following day. She filed a cursory answer on December 10, denying all allegations of the complaint except its introductory description of the property sought to be forfeited. On January 16, 1992, she filed an amended answer setting forth an innocent owner defense under OCGA § 16-13-49 (e) (1), (2), and (5); she also submitted interrogatories to the assistant district attorney, the answers to which were filed on February 26. On July 15, the State amended the complaint setting forth grounds for the forfeiture in addition to those stated in the original complaint. Counsel for the Al-fords was granted a leave of absence from August 5 through August 12. On September 8, Rickey Alford filed a waiver releasing all right, title, and ownership in the subject property.

On September 14, the State filed its motion to dismiss. On September 18, a hearing was held on the State’s motion. At the hearing, Sarah moved to dismiss the State’s complaint in response to which the State argued that after Alford filed an answer, the parties engaged in settlement negotiations, and there were informal agreements between counsel to continue the hearing. However, no continuance of record was obtained.

1. An overview. OCGA § 16-13-49 was originally enacted in 1974 and it was rewritten in 1991. A complaint for forfeiture of property filed pursuant to this statute is a special statutory proceeding. State of Ga. v. Britt Caribe, Ltd., 154 Ga. App. 476, 477 (268 SE2d 702) (1980). OCGA § 9-11-81 states that the Civil Practice Act “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of [the CPA] governing the sufficiency of pleadings . . . shall apply to all such proceedings.” Johnson v. Caldwell, 229 Ga. 548, 550 (192 SE2d 900) (1972). Prior cases held, in accordance with general principles, that drug forfeiture statutes are to be strictly construed. Lang v. State of Ga., 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983). As rewritten in 1991, the statute provides that it shall be liberally construed. OCGA § 16-13-49 (z). “However, to ensure due process to the property owner, the statute must be strictly conformed to by the condemning body.” Dorsey v. Dept. of Transp., 248 Ga. 34, 37 (279 SE2d 707) (1981).

OCGA § 16-13-49 “ ‘sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute . . . ; and (2) the protection of property interests of innocent owners, as defined by the statute.’ [Cit.]” Hubbard v. State of Ga., 201 Ga. App. 213, 214-215 (1) (411 SE2d 44) (1991). Consequently, the property owner and the State have their respective evidentiary burdens, as well as shifting obligations for compliance with time requirements.

2. The complaint. Prior to 1991, the district attorney was required to file the complaint within 30 days of seizure, former OCGA § 16-13-49. (e), and the consequences of the failure to do so were not stated. We held that where the State failed to comply with this specific statutory prerequisite, the trial court correctly granted the defendant’s motion for return of the property. State of Ga. v. Ellis, 156 Ga. App. 779 (1) (275 SE2d 361) (1980). In State of Ga. v. Luke, 183 Ga. App. 182 (358 SE2d 272) (1987), we followed this holding in Ellis, rejecting the argument that the 30-day requirement was directory rather than mandatory since there was no penalty in the statute for non-compliance.

OCGA § 16-13-49 (h) (2) now requires the district attorney to file the complaint within 60 days from the date of seizure. Once that is done, the State must carry its burden of proving by a preponderance of the evidence a prima facie case for forfeiture. State of Ga. v. Jackson, 197 Ga. App. 619, 623 (1) (399 SE2d 88) (1990). OCGA § 16-13-49 (h) (3) now expressly states that if the state fails to initiate forfeiture proceedings within the 60-day period, “the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.”

3. The answer. OCGA § 16-13-49 (o) (3) states: “An owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. Any such answer shall be filed within 30 days after the service of the summons and complaint.” When an answer is filed, a co-owner claiming innocence has a two-fold burden. “First, in order to establish standing to contest the forfeiture the co-owner has the burden of proving the nature and extent of his interest in the property. [Cits.] Second, the co-owner must prove by a preponderance of the evidence that he is entitled to the exception as defined by the statute. [Cits.]” (Footnote omitted.) State of Ga. v. Jackson, supra.

OCGA § 16-13-49 (o) (4) states that if at the expiration of this 30-day period no answer has been filed, “the court shall order the disposition of the seized property as provided for in this Code section.” For this and other reasons, we have held that a party may not belatedly tender an answer under general rules of civil procedure. State of Ga. v. Britt Caribe, Ltd., supra.

OCGA § 16-13-49 (o) (3) further provides, “In addition to complying with the general rules applicable to an answer in civil actions, the answer must set forth: (A) The caption of the proceedings as set forth in the complaint and the name of the claimant; (B) The address at which the claimant will accept mail; (C) The nature and extent of the claimant’s interest in the property; . . . (E) The specific provision of this Code section relied on in asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion; and (G) The precise relief sought.”

Alford argues that these special pleading requirements must yield to the less stringent notice-pleading rules of the CPA since, under OCGA § 9-11-81, supra, the provisions of the CPA governing the sufficiency of pleadings shall apply to special statutory proceedings in any event, if there is a conflict. However, it has been held that, given the nature of condemnation proceedings, pleading requirements in addition to the minimal ones set forth in the CPA may be imposed. See Dorsey v. Dept. of Transp., supra.

The drug forfeiture statute does not state the consequences when an answer does not contain all of the statutorily required information. Under the CPA, the State could file a motion for a more definite statement under OCGA § 9-11-12 (e) or a motion to strike the answer under OCGA § 9-11-12 (f). The property owner could also seek to amend the answer under OCGA § 9-11-15, although the State could argue that an amendment after the 30-day period for filing the answer should not be allowed.

Decided April 19, 1993 —

Reconsideration denied May 5, 1993

Guy J. Notte, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, F. Maxwell Wood, Lance K. Hiltbrand, for appellee.

4. The hearing. We held in Hill v. State of Ga., 178 Ga. App. 563, 564 (1) (343 SE2d 776) (1986), that although the drug forfeiture statute did not expressly provide for a hearing at that time, a claimant who appeared within the time provided had to be given an opportunity to be heard.

OCGA § 16-13-49 (o) (5) now states, “If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.”

In Henderson v. State, 205 Ga. App. 542 (422 SE2d 666) (1992), we reversed the trial court’s denial of the defendants’ motion to dismiss the condemnation proceeding because the hearing was not held within 60 days after service of the complaint, rejecting the State’s argument that the 60-day time requirement was directory. We held that the legislature used the word “must” in OCGA § 16-13-49 (o) (5) to mandate a speedy resolution of in rem condemnation cases in both the public interest in a speedy resolution of the case and the private interest in a speedy resolution of property rights.

Since Alford filed an answer, it was obligatory on the State to either invoke a hearing within the 60-day period, avoid the necessity for the hearing by filing a timely motion to strike the defendant’s answer, or obtain a continuance. None of these things was done. The trial court’s denial of Sarah’s motion to dismiss the State’s complaint must be reversed under Henderson v. State, supra.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.