text:
    A92A0339.
    RACQUEMORE v. THE STATE.
    (418 SE2d 448)
   Pope, Judge.

Defendant Moses Racquemore appeals his conviction of theft by shoplifting for concealing two packages of meat in his trousers at a grocery store.

1. We first address defendant’s argument that the evidence was insufficient to support his conviction because the State failed to prove the element of intent to appropriate the merchandise for his own use or deprive the owner of its use or value, as required by OCGA § 16-8-14. Evidence was presented that defendant was seen stuffing two packages of meat into the waist of his trousers and pulling his shirt down over them. Defendant did not leave the store with the meat, but returned the meat to the display case after the store security guard and store manager started watching his actions and following him. “ ‘Whether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous. (Cit.)’ ” Foster v. State, 192 Ga. App. 720 (386 SE2d 383) (1989). Just as in Foster, which also involved a defendant who concealed merchandise in his clothing and then returned it to a shelf after he was seen by store employees, “[w]e hold that the evidence presented here was sufficient to enable a rational trier of fact to find the [defendant] guilty beyond a reasonable doubt of the offense of theft by shoplifting.” Id.

2. We agree, however, that the trial court erred in permitting into evidence certain testimony which called into issue defendant’s general character without giving a proper cautionary instruction to the jury. The store manager, in the course of describing his interrogation of the defendant after he was taken to the store office, testified he asked the defendant where he lived and the defendant responded that he was on probation and living at a half-way house. Defendant’s attorney moved for mistrial on the ground that the testimony improperly placed the defendant’s character into evidence. After a hearing outside the presence of the jury and a brief recess for the judge to review the law, the judge informed the parties that he would deny the motion for mistrial but would instruct the jury that the testimony at issue was admissible for the limited purpose of establishing the requisite criminal intent. Defendant’s attorney stated his exception to the court’s ruling. Nevertheless, once the jury returned to the courtroom, the judge instructed them that the defendant was on trial only for shoplifting and the testimony concerning the defendant’s probation “would only be admissible for the limited purpose of showing or attempting to establish the requisite intent required in a shoplifting prosecution.”

We hold that the instruction supposedly “limiting” the jury’s consideration of the testimony was improper because the statement was nót admissible for the purpose of showing intent to commit the crime charged. The only manner in which the fact that defendant had been convicted of some other crime could be relevant to his intent to commit the crime charged is the improper inference that commission of a previous crime reflects on the defendant’s character or propensity to commit another crime.

Contrary to the argument made by the State, this is not a case, as in Greer v. State, 199 Ga. App. 106 (1) (403 SE2d 825) (1991), in which the defendant’s reference to the fact that he had recently been released from prison on probation was offered by defendant as a reason why he did not commit the crime with which he was charged. Thus, contrary to the statement at issue in Greer, the defendant’s statement that he was on probation and living at a half-way house, in response to a question about where he lived, is not material to or admissible on the issue of motive, intent and course of conduct. Nor is this a case, as in Brooks v. State, 199 Ga. App. 525 (1) (405 SE2d 343) (1991), in which the defendant’s statements concerning the commission of other crimes were part of the res gestae of the crime. Thus, contrary to Brooks, defendant’s statement was not admissible for the purpose of explaining the circumstances surrounding the crime.

We also reject the State’s argument that defendant waived any objection to the trial court’s ruling by failing to renew the motion for mistrial after it was denied and the “curative” instruction was given. The record shows defendant stated his exception to the trial court’s ruling after the judge denied the motion and announced his intention to give the instruction to the jury. Since the defendant’s exception was clearly stated after the ruling was made, we see no reason why the exception had to be repeated after the instruction was given to the jury.

Where, as here, the introduction into evidence of a prior offense served no proper purpose such as proving an element of the offense, then it is reversible error for the trial court to take no remedial action in response to defendant’s motion for mistrial. See Lancaster v. State, 189 Ga. App. 149 (2) (375 SE2d 281) (1988). If the judge, in his discretion, had instructed the jury not to consider the testimony, then the denial of mistrial would not have been reversible error. See Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982). But the judge in this case gave an improper instruction which, in effect, reinforced the improper inference that commission of a previous crime is a reflection on character and intent to commit another crime. Where character evidence has been improperly submitted in evidence and a motion for mistrial is made, “the court may grant the mistrial or take other corrective measures less than a mistrial if the latter are sufficient for the purpose, but he should by all needful and proper instruction to the jury endeavor to remove the improper impression from their minds.” Stanley v. State, 94 Ga. App. 737, 743 (1) (96 SE2d 195) (1956). Here, the trial court’s failure either to grant the motion or give a proper cautionary instruction constitutes reversible error. See Hamilton v. State, 155 Ga. App. 799, 801 (272 SE2d 763) (1980).

Decided April 29, 1992.

Alice C. Stewart, for appellant.

Patrick H. Head, Solicitor, B. Martin First, Beverly M. Collins, Assistant Solicitors, for appellee.

3. It is not necessary to address defendant’s remaining enumeration of error concerning certain jury charges.

Judgment reversed.

Corley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A0387.
    WELLS v. THE STATE.
    (418 SE2d 450)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with simple battery. The evidence adduced at a bench trial showed that defendant met his estranged wife (“the victim”) in the parking lot behind the victim’s place of employment and gave the victim items of personal property left in defendant’s possession after the couple’s separation. After the exchange, defendant asked the victim to have dinner with him. The victim refused and “tried to get in [her] car to leave to go to lunch. [Defendant then] grabbed at [her] and he did pinch [her] breast.”

The trial court found defendant guilty of simple battery. This appeal followed. Held:

Defendant challenges the sufficiency of the evidence, arguing that the “tweaking” of his estranged wife’s breast was not done in an insulting or provoking manner so as to constitute the crime of simple battery. Defendant argues that his actions were “in a conciliatory spirit, as though seeking a reconciliation and without any intent to insult or provoke the wife, other than to entice her to have dinner with him.” This contention is without merit.

“A person commits the offense of simple battery when he . . . [intentionally makes physical contact of an insulting or provoking nature with the person of another. . . .” OCGA § 16-5-23 (a) (1). The victim’s testimony that defendant “did pinch [her] breast” without consent was sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of simply battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 29, 1992.

Karen D. Barr, for appellant.

J. Sidney Flowers, Solicitor, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge, Sognier, Chief Judge,

text:
    A92A0388.
    WELLS v. THE STATE.
    (418 SE2d 438)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with simple assault. The evidence adduced at a bench trial revealed that Sampy Smith (“the victim”), acting as a Liberty County Magistrate, issued a warrant for defendant’s arrest on the charge of aggravated assault. Within 48 hours after defendant’s arrest, defendant confronted the victim at the entrance of a local variety store and stated: “ ‘Sampy, I want you to know Pm out of the_d_n jail. There’s plenty of them like you. I’ll kick your_d_n a__’ ” The victim responded, “ ‘Mr. Wells, stay right here and I’ll get the Hinesville Police to talk to you. ...” The victim then “spun around and went over to the pay phone.” Defendant left the scene. The victim then went to the police station and filed a complaint.

The trial court found defendant guilty of simple assault. This appeal followed. Held:

In his sole enumeration, defendant challenges the sufficiency of the evidence, arguing that his threat against the victim was justified because the victim first “said he’d ‘put [defendant’s] damn a_back in jail.’ ”

It is for the trier-of-fact to resolve conflicting testimony, not an appellate court. Seidel v. State, 197 Ga. App. 14, 15 (1) (397 SE2d 480). See McBride v. State, 199 Ga. App. 527, 528 (1) (405 SE2d 345). In the case sub judice, there is conflicting testimony regarding the circumstances of the encounter between defendant and the victim. The victim’s testimony does not reveal a threat by the victim against defendant. However, the victim’s testimony does authorize a finding that defendant’s threat against the victim placed the victim in reasonable apprehension of immediately receiving a violent injury. More specifically, the victim testified that he is “afraid of the man” and that defendant’s threat caused him “to be fearful of receiving a violent injury.”

Notwithstanding, the dissent would reverse defendant’s conviction on the general grounds, reasoning that defendant’s face-to-face confrontation with the victim and overt threat of violence against the victim does not constitute a “ ‘demonstration of violence,’ ... or [show] that [defendant] had a present ability to commit a violent act against Smith, the victim.” The dissent also reasons that defendant’s confrontation and threat against the victim does not constitute simple assault because the victim’s fear of defendant was not “immediate.” This logic ignores the evidentiary basis for the victim’s testimony that defendant’s threat caused him “to be fearful of receiving a violent injury.” In this vein, the victim testified that while acting in his capacity as a judicial officer less than 48 hours prior to the incident which forms the basis of the crime charged, he heard evidence establishing probable cause for defendant’s arrest for “aggravated assault against a young fellow.” More specifically, the victim testified that he issued a warrant for defendant’s arrest after the alleged victim of an aggravated assault “came [into court] with a knot on the back of his head and was on his way to the hospital.” This testimony, testimony that defendant was aware the victim was the judicial officer responsible for his arrest and evidence of defendant’s face-to-face encounter with the victim within 48 hours after defendant’s arrest and of defendant’s profane threat of physical violence against the victim is sufficient to sustain the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of simple assault as defined by OCGA § 16-5-20 (a) (2). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In fact, evidence that defendant’s threat caused the victim to retreat to a nearby pay telephone to summon police is sufficient to authorize a finding, beyond a reasonable doubt, that defendant is guilty of simple assault. Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869).

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Pope and Andrews, JJ., concur. Beasley and Johnson, JJ., concur specially. Sognier, C. J., and Cooper, J., dissent.

Beasley, Judge,

concurring specially.

Defendant was charged with violating OCGA § 16-5-20 without designating which variety of simple assault, and the trial court found him guilty under subsection (a) (2), “[committing] an act which places another in reasonable apprehension of immediately receiving a violent injury.”

I agree that the evidence, including some which is not mentioned in the opinion, is sufficient under the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The victim, a schoolteacher and magistrate, knew defendant and was afraid of him to the extent that he would avoid defendant and not stop at local restaurants if he saw defendant’s vehicle there. On this occasion he did not recognize defendant as he was standing outside the store with another man, until he got close enough for defendant to see him.

He stated that the reason he feared defendant was that he had killed someone and that he thought defendant was “crazy” because he “seems to chronically get involved in situations that can be dangerous to other people.” His definition of “crazy” was that it applied to “[o]ne who does irrational things repeatedly, that uses violence to achieve their goals repeatedly.” He was worried about his violent nature. He knew that defendant had been charged with a bar fight and DUI, although those cases had not yet been tried.

He also knew that he had found probable cause to believe that defendant had just two days earlier committed an aggravated assault and that when defendant’s lawyer came to request bond, he had denied it because he believed defendant was under the influence of alcohol and should be sober for the hearing the next morning.

Finally, he testified that when he told defendant to wait for the police, he expected defendant would leave and for that he was grateful because of his fear.

The court was able to observe both the victim and the defendant, who conducted his own defense, and was authorized by all of the circumstances to conclude that defendant’s verbal act and demeanor placed the victim “in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2).

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

Sognier, Chief Judge,

dissenting.

I respectfully dissent.

OCGA § 16-5-20 (a) provides that “[a] person commits the offense of simple assault when he either: (1) [ajttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” The offense is complete “if there is a demonstration of violence, coupled with an apparent present ability to inflict injury so as to cause the [victim] reasonably to fear that he will receive an immediate violent injury unless he retreats to secure his safety. . . . Even assuming a threat to commit a violent injury upon the person of the victim, without more this is not sufficient to constitute an assault. [Cit.]” Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856) (1981).

Here, the transcript is devoid of evidence of any actions that either constituted a “demonstration of violence,” id., or showed that appellant had a present ability to commit a violent act against Smith, the victim. There is no evidence that appellant had a weapon or that he approached Smith in a physically threatening manner or otherwise made any attempt to commit a violent act or inflict a violent injury upon Smith. See id.; see also Hamby v. State, 173 Ga. App. 750-751 (2) (328 SE2d 224) (1985). I do not agree with the majority’s characterization of Smith’s actions in ordering appellant to “stay right here” while Smith summoned police as the type of “retreat” that will authorize an inference of fear of violent injury. Indeed, this evidence suggests that Smith, not appellant, was in control of the situation. Compare Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869) (1983) (after defendant repeatedly rammed victim’s car with his vehicle and sideswiped her car, causing it to make a 180-degree turn, the victim jumped from her car and ran toward a roadside store for assistance); Hurt v. State, 158 Ga. App. 722 (282 SE2d 192) (1981) (defendant, who was armed with a shotgun, taunted the victim at the door of the victim’s home, causing the victim to go inside the house).

Decided April 29, 1992.

Karen D. Barr, for appellant.

J. Sidney Flowers, Solicitor, for appellee.

Moreover, even though Smith testified he feared that appellant might locate him later and then inflict harm, “this was not the apprehension of an immediate violent injury, but rather of a future injury. Therefore, even though the facts in the accusation were proven by the state and believed by the [court as trier of fact], the same would not authorize a verdict of guilty on the charge of simple assault.” Hudson v. State, 135 Ga. App. 739, 740-741 (1) (218 SE2d 905) (1975). Accordingly, I conclude the evidence was not sufficient to support the verdict.

I am authorized to state that Judge Cooper joins in this dissent.


author: Beasley, Judge.

text:
    A92A0389.
    BARBER v. THE STATE.
    (418 SE2d 436)
   Beasley, Judge.

Appellant, who was a school bus driver, was convicted of two counts of simple battery (OCGA § 16-5-23.1 (a)), one count of reckless conduct (OCGA § 16-5-60 (b)), and one count of DUI (OCGA § 40-6-391). The evidence showed she drove a bus load of elementary school children in a reckless manner while intoxicated and struck or slapped two of the children.

1. Appellant contends that the court erred in denying her motion to disqualify the solicitor for prosecutorial misconduct, i.e., his pretrial statements concerning appellant’s character, his personal opinion of her guilt, and her attempts to enter a guilty plea.

These statements were allegedly made by the solicitor in a meeting at the elementary school attended by the victims, their parents, and the general public, and appellant argues that in making these statements the solicitor violated State Bar Disciplinary Rule 7-107 (b).

Appellant argued at trial that the solicitor’s statements constituted overzealousness and a personal rather than solely a professional interest in the case and resulted in prejudicial pretrial publicity biasing witnesses and prospective jurors. When the solicitor objected to a transcribed tape recording of the meeting being admitted in evidence because it had not been authenticated, appellant requested that the solicitor be called as a defense witness. The assistant solicitor argued that the solicitor’s violation of disciplinary rules was a matter between him and the State Bar but not grounds for his disqualification as prosecuting attorney. He pointed out that any witness bias could be revealed by cross-examination and that any juror bias could be ferreted out on voir dire.

The trial court invited appellant to renew a motion for change of venue, in the event juror bias was prevalent, and the court ruled that witnesses could be cross-examined on this subject. The court, after defendant stated what the solicitor’s expected testimony would be, ruled the solicitor could not be called as a witness. The motion to disquality the solicitor was denied.

Appellant has not shown that, even if all of the statements were made at the public gathering in advance of the trial, she was prejudiced because the maker of the statements acted as prosecuting attorney at her trial. Disqualification was not mandated in order to assure a fair trial, and appellant has not shown that any witness or juror was infected by the solicitor’s conduct.

2. Appellant urges that reckless conduct is a lesser included offense which should be merged into the greater offense of DUI as a matter of fact in this case.

The accusations charged that appellant did “unlawfully endanger the bodily safety of 53 children on Bus No. 8411 by driving reckless” and that she did “unlawfully drive or be in actual physical control of a motor vehicle while under the influence of alcohol to the extent that it’s less safe for the person to drive and the person’s alcohol concentration was 0.12 grams or more.”

Whiteley v. State, 188 Ga. App. 129, 132 (5) (372 SE2d 296) (1988), held that “[sjince reckless conduct requires harm or danger to ‘another person,’ an element not required by OCGA § 40-6-391 to be alleged and proven, it is not a lesser included offense as a matter of law. [Cits.] It also was not a lesser included crime as a matter of fact, because the accusation includes no allegation of harm or danger to another person and there was no proof of such at trial. . . . [Cits.]”

Decided April 29, 1992.

Freddie Harrell, for appellant.

Daniel W. Lee, Solicitor, for appellee.

Appellant’s assertion that the reckless conduct accusation did allege harm or danger to others misperceives the issue. It is the DUI accusation that must allege harm or danger in order to render reckless conduct a lesser included offense, and the DUI accusation contains no such allegations.

3. The trial court is faulted for not conducting a hearing and ruling on appellant’s motion for change of venue. Her argument is that under Villa v. State, 190 Ga. App. 530, 532 (2) (379 SE2d 417) (1989), when a motion for change of venue is filed, the trial court must conduct a hearing and give defendant an opportunity to present evidence.

Villa is distinguishable in that Villa requested a hearing on his motion but appellant did not. Her original motion for change of venue was denied because of counsel’s failure to appear at the hearing. Appellant did not renew the motion or request a hearing after the court stated that the motion could be revived if a basis materialized.

Appellant also argues that by refusing to allow her to call the solicitor as a defense witness, she was denied an opportunity to present evidence on her motion for change of venue. However, appellant sought to examine the solicitor regarding her motion for disqualification rather than change of venue. Moreover, the court allowed defense counsel to state in his place the testimony he sought to elicit from the solicitor.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A92A0440, A92A0441.
    CENTURY 21 MARY CARR & ASSOCIATES, INC. v. JONES (two cases).
    (418 SE2d 435)
   Johnson, Judge.

A directed verdict was entered in favor of Lucy Mae Jones (Jones) in this action for recovery of a real estate commission. Judgment was also entered in favor of Jones on her counterclaim for return of earnest money. Century 21 Mary Carr & Associates, Inc. (Carr) appeals.

Jones and Carr (as broker) entered into an agreement for the purchase and sale of real property. The contract had a financing contingency clause which obligated Jones to “promptly make application and pursue said application with reasonable diligence to obtain said loan when it is available.” Jones applied for a loan with HomeSouth Mortgage Corporation which granted conditional approval of the loan subject to the payment in full of an outstanding Visa account. According to the information provided to HomeSouth, sufficient funds were available in Jones’ various bank accounts to pay off the debt. Jones refused to do so. She stated that although her boyfriend was not named on the accounts or listed as a co-owner of the funds on the loan application, the monies in the account also belonged to him. She stated that her boyfriend had recently lost his job and might need the money.

“ ‘ “(E)very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement” Restatement, Second, Contracts, § 231.’ (Cit.) ... In the specific context of a financing contingency in a real estate sales contract, for example, we have held that the purchaser has an implied duty to diligently seek to have the contingency take place, and that this implied duty must be exercised in good faith.” Smithloff v. Benson, 173 Ga. App. 870, 872-873 (328 SE2d 759) (1985). Whether Jones’ actions were reasonable or exhibited the good faith or diligence implied in the contract was clearly a material issue of fact.

No jury was requested, and the court was sitting as the sole trier of fact. Therefore, both the motion for a directed verdict, and the entry of same in the absence of a jury, was procedurally improper. However, it will be treated as an involuntary dismissal pursuant to § 9-11-41 (b). See Chamlee v. Dept. of Transp., 182 Ga. App. 120 (354 SE2d 701) (1987).

The only issue before the trial court was the reasonableness of the efforts of Jones with respect to obtaining financing. Considering the factual evidence presented at trial, we cannot say the trial court would have been in error had it found that Jones failed to exhibit good faith in her response to the conditional loan approval. However, the trial court found that Jones’ efforts were reasonable and was satisfied with her explanation of her failure to satisfy the only contingency which related to financing. The trial court, however, had within its breast the authority to draw its own conclusions from the evidence before it. Absent any evidence of abuse of discretion in this matter, the trial court will be presumed to have followed the law. Cox v. City of Lawrenceville, 168 Ga. App. 119 (1) (308 SE2d 224) (1983). “ ‘On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment and if there is some evidence ... we will uphold the judgment.’ (Cit.)” Touchet v. Holly Isles Estates, 198 Ga. App. 541, 542 (4) (402 SE2d 317) (1991). We find that the trial court did not err in dismissing the plaintiff’s claim.

Decided April 29, 1992.

Randall L. Keen, for appellant.

Richard A. Coleman, for appellee.

The entry of a judgment on the counterclaim for the return of the earnest money as an element of the involuntary dismissal (labeled “directed verdict”) was not error. Jones, testifying in plaintiff’s case as an adverse witness, stated that she had paid the sum of $500 to Carr as earnest money. Therefore, we find that competent evidence regarding the counterclaim was before the court. Having found that a contingency in the contract had failed and, therefore, that Jones was not obligated further under the contract, as a matter of law she was entitled under the terms of the contract to a return of the earnest money.

Both appellee and appellant referred to both Case Nos. A92A0440 and A92A0441 on their briefs and only one enumeration of error was filed. Therefore, we will consider these appeals consolidated for the purposes of appeal.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0566.
    RAMSEY et al. v. CITY OF FOREST PARK.
    (418 SE2d 432)
   Birdsong, Presiding Judge.

This is an appeal of the order of the state court granting appellee City of Forest Park’s motion for summary judgment on the grounds that the City was immune from suit under either OCGA §§ 31-11-8 or 36-33-3.

Emergency Medical Technician May responded to an ambulance emergency call at the home of appellants, Patricia and Lee Ramsey. Patricia Ramsey was complaining of chest pains. May examined and provided certain on-site medical services to Patricia Ramsey who subsequently refused to be transferred to the hospital by ambulance. May left the scene, and the following morning, Patricia Ramsey suffered a heart attack. On the date of the incident, the City of Forest Park was duly licensed by the Georgia Department of Human Resources to provide ambulance services. Held:

1. Fact assertions found in briefs but unsupported in the trial record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). For example, we find no factual basis in the record that May made any representations to Patricia Ramsey to the effect there was nothing wrong with her heart.

2. Appellant, relying on Glaser v. Meck, 258 Ga. 468 (369 SE2d 912), asserts the trial court erred in granting summary judgment in favor of appellee, as appellee failed to comply with OCGA § 9-11-12 requiring assertion of defenses in responsive pleadings. Specifically, appellant contends that by failing to comply with said statute, appellee failed to raise the defenses upon which summary judgment was granted and has waived any right to such defenses.

(a) Examination of Glaser, supra, reveals that it is distinguishable from both the case style and circumstances of the case at bar. A controlling factor in Glaser was a pleading default which came to the court’s attention only because the appellee was permitted to remedy his own pleading default after the running of the statute of limitation of his underlying claim. Additionally, Glaser does not involve, as in this case, a claim of immunity grounded on a strong state public policy enacted to encourage the rendering of emergency medical services to the citizens of this state. Moreover, the precedent of Glaser, supra, apparently was intended to be limited to the operative facts discussed therein, as the holding expressly asserts a limited applicability, that is an applicability “in this case and under these circumstances.” Id. We find that Glaser is not controlling in this case.

(b) Assuming arguendo Glaser precedent did apply, appellee’s answer pleaded a first defense of failure to state a claim or cause of action upon which relief can be granted, and the fourth defense asserted the action was barred under the doctrine of sovereign immunity. Under notice pleading we find that an answer pleading a defense of failure to state a claim at least would be minimally sufficient to give notice of substantive immunity defenses under either OCGA §§ 31-11-8 or 36-33-3, respectively. Additionally, when a municipality or county obtains immunity under either of these statutes, it is obtaining a form of sovereign immunity as it is a “sovereign” and it is obtaining “immunity.” Thus, a pleaded defense of sovereign immunity also would suffice under Glaser, supra.

(c) Additionally, for reasons hereinafter stated, a claim of immunity under OCGA § 31-11-8 cannot be waived by those persons to whom the statute applies; and among those “persons” to whom the statute applies are “municipalities” and “counties,” as they are an “organization of any kind, including any governmental agency other than of the United States.” OCGA § 31-11-2 (18).

OCGA § 31-11-8 is a law made to assist in the overall preservation of public order by encouraging “good Samaritan” conduct toward unfortunate state citizens in need of emergency medical service. The important public policy pertaining to emergency medical services is promulgated in OCGA § 31-11-1. “Laws made for the preservation of public order or good morals may not be dispensed with or abrogated by any agreement. However, a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” (Emphasis supplied.) OCGA § 1-3-7. Considering that the furnishing of emergency medical services is a matter of substantial interest to the public (OCGA § 31-11-1) and that invoking waiver of immunity due to a “person’s” mere negligence or failure to comply with technical procedural rules of pleading would undermine public confidence in the reliability of the immunity granted under OCGA § 31-11-8, it is clear that such a waiver would be injurious to the public interest. Accordingly, we find such waiver prohibited by OCGA § 1-3-7. “While a person may generally waive or renounce what the law has established in his favor, he can not do so when [as here] the waiver affects the public interest.” Georgia Fertilizer Co. v. Walker, 171 Ga. 734 (3) (156 SE 820).

(d) No genuine issue of fact otherwise exists to exclude appellee from the immunity granted by OCGA § 31-11-8.

The record is uncontroverted that appellee was, on the date of the incident, duly “licensed to furnish ambulance service,” within the meaning of OCGA § 31-11-8 (a).

The trial court granted summary judgment to appellee and, citing Gilbert v. Jones, 187 Ga. App. 303 (370 SE2d 155), found the existence of no genuine material issue of fact, including a lack of existence of a genuine issue of material fact regarding the “good faith” requirement of OCGA § 31-11-8 (a). “ ‘If the movant carries his initial burden, as was done in this case [see generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)], and the respondent does not present refuting evidence that is adequate to raise an issue of fact, a summary judgment for the movant must be granted.’ ” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241). “In response to a motion for summary judgment the non-moving party may not rest on generalized allegations, but must come forward with specific facts.” Precise v. City of Roswell, 261 Ga. 210, 212 (3) (403 SE2d 47). It is well established that “ ‘[s]ummary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where [as here] the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (397 SE2d 576). And we will not reverse the correct ruling of a trial court regardless of the reason given therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

Although it is a matter of first impression, we agree with the trial court’s ruling that the municipality received no remuneration, within the meaning of OCGA § 31-11-8 (c), for compensation for the performance of emergency cases, but only levied a transportation charge against those persons transported to a hospital. We do not find anything in the city resolution cited by appellants which raises a genuine issue of material fact to the contrary. OCGA § 31-11-8 (c) precludes immunity from vesting only when “persons,” within the meaning of OCGA § 31-11-2 (18), perform stated “emergency services,” for remuneration. “Remuneration” is the act of remunerating, and the primary definition of to “remunerate” is “to pay, recompense, or reward for work, trouble, etc.” Webster’s Encyclopedic Unabridged Dictionary of the English Language. Thus, it appears to have been the intent of the General Assembly not to vest immunity in those “persons” who were being rewarded for the performance of “emergency services.” We are satisfied that a fee charged by a governmental organization to assist in defraying the administrative costs of “transporting a person to a hospital” is not the equivalent of receiving remuneration for providing stated “emergency care,” within the meaning of OCGA § 31-11-8 (c). What may constitute a remuneration to a private “person” may not reward and constitute remuneration to a governmental organization having to control its public expenditures carefully while providing “emergency medical services” to those within its boundaries. And, OCGA § 31-11-8 (c) must be liberally construed so as not to thwart the public policy purpose reflected in OCGA § 31-11-1.

Decided April 29, 1992.

Gill, Peterson & Harris, Jim N. Peterson, Jr., for appellants.

Glaze, Glaze, Fincher & Brakefield, Gary H. Brakefield, for appellee.

3. In view of our holding in Division 2 above, we need not address appellant’s other contentions in support of its sole enumeration of error.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0588.
    CLEVELAND v. THE STATE.
    (418 SE2d 430)
   Beasley, Judge.

Appellant appeals his conviction of two counts of sale of cocaine in violation of OCGA § 16-13-30.

Commander Morris of the Moultrie-Colquitt County Drug Squad participated in an undercover operation on the night of May 8, 1991. Videotapes of the drug buys were made. Morris identified appellant in the courtroom as having twice sold $20 worth of crack cocaine to Sergeant Bryant on May 8, although he testified that he did not know appellant’s name at the time of the buys. The transactions occurred when Morris and Bryant were in a truck and the seller stood at the window of the driver, Bryant.

Captain Sandefur of the Cairo Police Department testified that he assisted in the identification of appellant by supplying his name to Morris after viewing him on the videotape. Morris acknowledged that during the course of the undercover operation there had been a mistaken identification of a drug seller in at least one instance in which the video camera malfunctioned. Commander Black of the Grady County Drug Squad testified that without altering the original videotape of these drug buys, he copied it onto a blank and then made 35 millimeter photographs of the videotape by putting the VCR on stop and taking photographs of the screen. This was done to aid in the identification of the seller, because the videotape was recorded in dim light and provided only a fleeting glimpse of appellant. The court admitted the videotape as well as the enlarged still photographs in evidence. The trial court allowed the jury to examine the still photographs during closing argument but would not allow them to be taken into the jury room.

1. Appellant contends that the trial court erred in denying his motion for directed verdict of acquittal in that the evidence is insufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), since no one who was present during the drug buys knew or identified him by name as the seller of the cocaine at the time of the buys, and appellant was not named as the seller until he was later identified from the videotape by one not present at the buys.

At trial, appellant was observed and identified by Morris as the seller of the cocaine, and Morris was present during the sales. The fact that he did not know appellant’s name affected only the strength of the identification and did not preclude identification. His in-court identification confirmed the accuracy of Sandefur’s identification of the seller by name after seeing the visual recording of the transaction. See Division 2.

Viewed in a light most favorable to the verdict, the evidence was sufficient under Jackson v. Virginia, supra. Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

2. Appellant contends that the trial court’s admission of still photographs taken from the videotape violated the best evidence rule.

The best evidence rule is restricted to writings. OCGA § 24-5-4 (a). Bostic v. State, 183 Ga. App. 430, 432 (2) (359 SE2d 201) (1987), refused to apply it to a contemporaneous audio recording and the written transcript thereof, both of which were admitted after proper authentication. Likewise, it does not apply to a contemporaneous visual recording and snapshots of frames thereof, the latter being in the nature of secondary evidence. OCGA § 24-5-1.

“Georgia follows a liberal policy in the admission of photographic evidence. [Cit.] Whether, under the evidence, the photograph or movie tape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused. [Cits.]” Eiland v. State, 130 Ga. App. 428, 429 (203 SE2d 619) (1973). “ ‘It is no objection to the admissibility of a photograph that it is enlarged, showing the subject or object magnified, where it does not have a tendency to mislead.’ [Cit.]” Western & Atlantic R. v. Reed, 35 Ga. App. 538, 549 (7) (134 SE 134) (1926). The snapshots were merely positive enlargements of the frames which the jury could not easily see. See generally Agnor’s Ga. Evid., § 15-12, p. 325 (1976). No abuse of discretion appears here.

Decided April 29, 1992.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0903.
    MELTON v. THE STATE.
    (418 SE2d 428)
   McMurray, Presiding Judge.

Defendant was convicted of kidnapping with bodily injury and sentenced to life in prison as a repeat offender. He appeals, following the denial of his motion for a new trial.

Briefly stated, the evidence, viewed in favor of the State, demonstrates the following: On February 3, 1987, defendant saw the victim, a 17-year-old girl, and her 10-year-old nephew, walking near the expressway. Defendant offered the victim a ride and assured her that he would take her where she wanted to go without harming her. The victim wanted to find her boyfriend, a truck driver. The victim and her nephew entered defendant’s car and defendant drove off searching for the victim’s boyfriend. After catching up with a truck driven by a man who knew the boyfriend, and getting an idea about the boyfriend’s whereabouts, defendant took the victim and her nephew to his house where he changed his clothes. At that point, the victim told defendant that she needed to take her nephew home and they left to go to the victim’s house. Along the way, defendant stopped at a store where he purchased some beer. The victim drank one of the beers.

Defendant drove the victim home and she brought her nephew in the house. Defendant asked the victim if she wanted to ride around. She agreed to do so, insisting that defendant first go in the house and meet her mother which defendant did. When they left the house, defendant stopped at another store, purchased some Kahlua and offered a mixed drink to the victim. The victim refused to drink it because it was too strong. The victim mixed a drink for herself. Then defendant asked the victim if she wanted to “get some pot.” The victim declined.

Thereafter, defendant and the victim went to a truck stop where they found the victim’s boyfriend. The victim talked with her boyfriend for 45 minutes while defendant waited for her. The victim returned to defendant’s car and they “headed off” in the direction of the victim’s house.

The victim had taken some pills and passed out in defendant’s car. The next thing she knew, her pants were partially down, and defendant was inserting his finger in her vagina. The victim tried to get away and began to scream. Defendant covered the victim’s mouth and beat her face with his fists. He threatened to kill the victim if she did not remove her clothes. Finally, he choked the victim and banged her head against the window and dashboard until she lost consciousness.

When the victim came to, she found herself in a wooded area, at the bottom of an embankment. She managed to get help and was taken to the hospital where she remained for two days. She suffered from bruises to her entire body and it was difficult for her to walk and talk. Concentric contusions around the victim’s wrists and forearms led the medical examiner to conclude that she had been bound. Held:

1. In his first enumeration of error, defendant contends the trial court erred in permitting the State to introduce a 1979 conviction for rape and sodomy at the sentencing hearing because defendant’s “Anders [ v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493)] rights had been violated.” We cannot consider this contention because defendant did not challenge the prior conviction at the time of sentencing. Brenneman v. State, 200 Ga. App. 111, 115 (6) (407 SE2d 93).

2. “If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” OCGA § 17-2-2 (h). In the case sub judice, defendant’s own pre-trial statement shows beyond a reasonable doubt that the crime might have been committed in Cobb County. See generally Jackson v. State, 177 Ga. App. 718, 719 (341 SE2d 274) (slight proof of venue is sufficient where venue is not contested at trial). It follows that defendant’s second enumeration of error, in which defendant asserts venue was not proved, is without merit.

3. Defendant contends the trial court erred in allowing evidence concerning two sex offenses (defendant was convicted of raping a 16-year-old girl on May 11, 1979, and sodomizing a 14-year-old girl on May 29, 1979) which defendant committed in 1979. In this connection, defendant asserts the circumstances surrounding the offenses were not similar to the case sub judice. We disagree. In each case, the victim was a teenager and defendant offered her a ride. In each case, defendant was initially friendly and identified himself. In each case, defendant drove to a wooded area. In each case, defendant threatened to kill or harm the victim if she did not do as he said. In the rape case and in the case sub judice, defendant asked the victims if they wanted to smoke marijuana. Finally, in the sodomy case and the case sub judice, the victims were bound. In our view, these cases are similar enough that proof of the rape and sodomy cases tends to prove the kidnapping with bodily injury case. See Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292). It follows that the trial court did not err in allowing evidence of the prior crimes.

Decided April 29, 1992.

Threlkeld & Threlkeld, Larry W. Threlkeld, for appellant.

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

4. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of kidnapping with bodily injury beyond a reasonable doubt. Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358). See also Taylor v. State, 194 Ga. App. 871, 872 (1, 2) (392 SE2d 57); George v. State, 192 Ga. App. 840, 841 (1) (386 SE2d 669).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0074.
    HIGHTOWER v. COX.
    (418 SE2d 613)
   Birdsong, Presiding Judge.

Defendant Stanley D. Hightower appeals from a jury verdict and judgment in this personal injury case, contending the trial court erred in denying him a directed verdict at the close of the plaintiff’s case and that the jury verdict is not supported by any evidence, inasmuch as the evidence clearly showed the plaintiff assumed the risk.

Plaintiff Michael V. Cox attended an outing at Allatoona Lake given by appellant Hightower for employees and friends. Appellant Hightower had rented a houseboat and was operating it himself; he had picked up Mr. Cox and others on the lake shore to ferry them to the cove where the boat was to dock. As the houseboat neared the dock, Cox and two others dove off the houseboat. Appellant put the boat gear in neutral and then reverse so as to nudge the boat in place by the dock, and Cox was caught in the boat propeller and severely injured. Held:

Appellant contends the evidence established conclusively that Cox “assumed the risk” (see Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167, 169 (312 SE2d 142)), thereby entitling appellant to a directed verdict; and that the verdict is without evidence. Appellant asserts the jury and this court should accept his version of disputed facts and ignore the contrary evidence which is in favor of plaintiff and the jury’s verdict.

Appellant contends the evidence showed that unbeknownst to him, Cox swam to the rear of the boat while appellant was still attempting to dock the boat, and that Cox, who was knowledgeable in the dangers of boats and propellers, was injured while he was attempting to climb into the boat at a place only 12-24 inches from the turning propeller, thereby voluntarily assuming the risk of any injury. Thus, says appellant, the evidence demands a finding that Cox is barred from any recovery. See OCGA § 9-11-50 (a).

However, the evidence is plainly disputed on the pertinent point. Two witnesses testified in effect that Cox was not attempting to climb back into the boat when appellant put the gear in reverse and the boat backed up, pulling appellant into the propeller and under the boat.

According to one witness who was in the water with Cox, the boat was a “good distance” away from the witness and Cox, and “looked like it was pulling up on shore”; the two swimmers decided to swim slowly to shore and eventually swam to “where we were about twenty feet to the right of the boat, back of the boat. And all of a sudden the boat started coming back. And [plaintiff] was swimming with his head down like a swimmer would and I was trying to get to him. . . . When I got to him, he pulled up and was trying to paddle back and it was too late, the boat was sucking him in. The boat, it really just, you know, every way that I went to get out of the way, it looked like the boat just—you know, there was no where to go, the water was pulling you in [sic] the boat was coming so fast at you. When it hit [plaintiff], it flipped him around in the water, threw him down straight under the water. My head hit the back of the boat. I was to the left of the [propeller]. It threw him to the right.” The witness also said that when Cox first started swimming, “the boat . . . was kind of like sitting still, you thought it was stopped. . . . But as [plaintiff] put his head down, it started coming back. . . .”

The witness testified that when the boat first came into reverse, plaintiff was “a hundred feet away from the boat. A good distance away. But he was swimming hard and . . . [w]hen he came up, he never noticed it because it sounded like the same sound going forward.” The witness testified that he thought the boat had docked when he and Cox started swimming to shore, but then, while Cox was swimming with his head down, appellant “slammed [the boat] into reverse hard.” Cox pulled up and started back-paddling when he saw the boat, but he was only about 10 or 15 feet from the boat and it was too late; “the boat sucked him in.”

Another witness testified that he was on the boat when Cox dove into the water. The boat was “sitting there idling” when Cox was swimming in. Then the witness saw Cox when Cox was “five foot out. ... He wasn’t right there at the motor, he was out in the water ... he was just sitting there in one spot then.” Until appellant put the boat in reverse, the boat had been sitting still against the bank without moving.

The testimony of these two witnesses directly disputes appellant’s contention that Cox had started to climb into the boat 12-24 inches from the propeller when he was struck by the propeller, and provides evidence from which the jury could find Cox was not barred by an assumption of risk and that appellant was liable for negligence. Accordingly, it cannot be said that the evidence demanded a directed verdict for appellant according to the statutory requirements for directed verdict found at OCGA § 9-11-50 (a), and the trial court did not err in denying directed verdict to appellant. Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218, 220 (390 SE2d 79).

Likewise, there was evidence to support the jury’s verdict. On appeal, we do not weigh the evidence nor do we determine its sufficiency, but look only to see whether there was evidence to enable the jury to find as it did; wherever there is any evidence to support the verdict, all conflicts in evidence are resolved in favor of the jury’s verdict and we are bound to affirm it. Bridges v. Schier, 195 Ga. App. 583, 584 (394 SE2d 408). This verdict was not contrary to the evidence.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

Appellant now asserts that “only the surviving plaintiff/actor’s direct testimony of his subjective perceptions is relevant” to the question whether plaintiff is barred from recovery by his voluntary assumption of the risk.

Plaintiff’s testimony is not entirely clear as to what he perceived. After some equivocal testimony, defense counsel asked plaintiff: “When you were two or three feet behind the rear of the boat the engine was in forward and the boat was moving in that direction and you knew the [propeller] on that boat was turning, correct? A. Yes, sir. To the best of my knowledge, that is true. ... Q. So when you got within an arm’s length of that ladder, the next thing that happened was that you heard the engine go again into reverse. . . . And . . . you felt the suction pull you into the propeller and up under the houseboat? A. Yes, sir.”

This evidence shows the injury did not occur merely because plaintiff had come to within an arm’s length of the propeller; rather, the injury occurred after defendant suddenly put the gear into reverse while plaintiff was near the boat. Therefore, this evidence, even standing alone, did not demand a verdict for defendant.

Moreover, appellant is incorrect in contending that only the plaintiff’s direct testimony of his subjective perceptions is relevant to the analysis concerning the assumption of risk. The seminal question is a subjective one geared to the particular plaintiff and his situation and requires an inquiry into the risks which appeared to plaintiff at the time (Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (321 SE2d 353)) and which were in fact known to plaintiff or were so obvious that he must be taken to have knowledge of them (see Roberts v. King, 102 Ga. App. 518, 525 (116 SE2d 885)), so as to demand a conclusion that he “made a conscious and voluntary decision to proceed” in the face of that risk. See Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (409 SE2d 524). This inquiry does not depend entirely on a plaintiff’s testimony, particularly where other evidence raises an inference that his own perception was distorted.

In this case, plaintiff’s testimony raises the question not merely whether he had knowledge of the danger, but whether he had an accurate perception of how the incident occurred. According to the other witnesses, plaintiff did not have full knowledge of how the incident occurred, because he was swimming with his head down and when he saw the boat coming toward him, it was too late. Plaintiff also testified: “There’s a lot of things about the day that are vague. . . . [The things I have testified to are] all the truth to the best of my knowledge.” According to other witnesses, appellant did not put the boat into reverse when plaintiff was within an arm’s length of it, but did so while plaintiff was swimming with his head down. When the boat went into reverse it moved toward plaintiff; plaintiff stopped and looked up, but it was too late and the propeller sucked him under.

The sequence of events that resulted in plaintiff’s being sucked under the boat was a question for the jury, as was the state of plaintiff’s perception at the time. The jury could decide that plaintiff was not the best witness not only as to what happened, but as to whether he knowingly assumed a specific risk. There is even a question whether the case is one involving assumption of the risk. See Beringause, supra.

Motion for reconsideration denied.

Decided March 20, 1992.

Reconsideration denied April 30, 1992

Brinson, Askew & Berry, Robert L. Berry, Jr., I. Stewart Duggan, for appellant.

Gammon & Anderson, Joseph N. Anderson, for appellee.


author: Carley, Presiding Judge.

text:
    A92A0131.
    CRIBBS v. THE STATE.
    (418 SE2d 405)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of rape, kidnapping with bodily harm, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts and from the denial of his motion for new trial.

1. In his motion for new trial, appellant raised the issue of the effectiveness of his trial counsel. The trial court, after conducting an evidentiary hearing wherein appellant’s trial counsel testified, found that there had been no denial of effective assistance of counsel. The refusal to grant a new trial on this ground is enumerated as error.

At the hearing on the motion for new trial, appellant’s trial counsel testified to his extensive and thorough preparation of appellant’s defense and to his subsequent use of trial tactics which were calculated to advance that defense. The trial transcript shows that appellant “openly admitted [engaging in sexual intercourse with] the victim but maintained he [had done so only with her consent and had neither kidnapped her nor used a gun]. Defense counsel presented a strong defense of [consent] which the jury, apparently, elected not to accept. [Cit.] Deliberate choices of trial strategy and tactics are within the province of trial counsel after consultation with his client. [Cit.]” Hudson v. State, 250 Ga. 479, 486 (8) (299 SE2d 531) (1983). The applicable standard is “ ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ [Cit.]” Hawes v. State, 240 Ga. 327, 329 (1) (240 SE2d 833) (1977). The trial court’s finding that appellant had not been denied effective assistance of counsel is not clearly erroneous and it follows, therefore, that this enumeration is without merit. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

2. After appellant had testified in his own defense, the State was allowed to introduce, for impeachment purposes only, an inconsistent pre-trial statement which appellant had given without benefit of the Miranda warnings. Although the trial court gave instructions as to the jury’s limited consideration of this evidence, appellant nevertheless urges that it was erroneously admitted.

The State is “allowed the use of a prior inconsistent statement by a defendant for impeaching purposes which would not otherwise be admissible, as long as the jury [is] properly instructed as to the limited purpose of the statement. Miranda forbids the use of [a] defendant’s statements in violation of its requirements as evidence of guilt. But, . . . the shield of Miranda may not be turned into a sword. . . . Hence, a defendant may not testify at trial in a manner inconsistent with his prior statement, without having to face the issue before the jury. The trial court must limit the use of the statement to impeachment, as was done in the instant case, and prevent its use as evidence of guilt. [Cit.]. . . There was no error.” Tew v. State, 179 Ga. App. 369, 372-373 (2) (346 SE2d 833) (1986).

3. Although appellant raised the issue of prosecutorial misconduct in his motion for new trial, no evidence whatsoever was adduced to substantiate its occurrence. Accordingly, it was clearly not error to refuse to grant appellant a new trial on this ground.

4. It was not error to admit into evidence a photograph of the alleged crime scene, even though it had not been taken until some weeks had passed. There were some immaterial differences in the lighting conditions and the amount of foliage, but the photograph was otherwise identified by the victim as fairly and accurately depicting the scene as it had appeared at the relevant time. Roberts v. State, 149 Ga. App. 667 (4) (255 SE2d 126) (1979).

5. Appellant urges that the guilty verdicts are against the weight of the evidence. This court considers only the sufficiency of the evidence, not its weight. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). When construed most favorably to support the verdict, the evidence adduced at trial was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt of all the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. Appellant was shown to have at least one prior felony conviction resulting from a guilty verdict rather than a guilty plea. Compare Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986). Accordingly, it was not error to sentence appellant as a recidivist pursuant to OCGA § 17-10-7 (a).

7. Remaining enumerations of error relate to issues which were not preserved for appellate review and which, in any event, would not constitute grounds for reversal.

8. Since appellant has been represented by counsel in this appeal, appellant’s pro se brief has not been considered. Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574) (1990).

Judgments affirmed.

Pope and Johnson, JJ., concur.

Decided April 16, 1992

Reconsideration denied April 30, 1992

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.


text:
    A92A0302, A92A0303.
    WRIGHT v. MILLINES et al.; and vice versa.
    (418 SE2d 453)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover for personal injuries sustained in an automobile collision. Appellee-defendants answered, denying the material allegations of appellant’s complaint. The case proceeded to trial before a jury and appellee Millines moved for a directed verdict at the close of appellant’s evidence. The trial court took the motion under advisement. At the close of all evidence, appellee Millines again moved for directed verdict. The trial court denied this motion and allowed the case to go to the jury. After the jury returned a verdict in favor of appellant against both appellees, the trial court, acting sua sponte and without ever entering judgment on the jury’s verdict, ordered that the original motion for directed verdict made by appellee Millines at the close of appellant’s evidence “be granted notwithstanding the verdict of the jury.” In Case No. A92A0302, appellant appeals from the judgment entered on the trial court’s sua sponte grant of appellee Millines’ motion for directed verdict and, in Case No. A92A0303, appellee cross-appeals.

These cases are controlled by Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1, 2) (417 SE2d 423) (1992): “ ‘[T]he trial court [in the instant case] should not in effect have entered a judgment notwithstanding the verdict . . . prior to entry of judgment on the verdict. [Cit.]’. . . . Accordingly, the trial court’s erroneous post-verdict grant of [appellee Millines’] motion for directed verdict must be ‘reversed with direction that judgment be entered on the jury’s verdict. Thereafter, appellant will be entitled to pursue [his] post-judgment remedies, including the right to file an . . . appeal from any adverse final judgment in the case.’ [Cit.] The cross-appeal from the judgment entered on the trial court’s grant of appellee’s motion for a directed verdict must be dismissed.” (Emphasis in original.)

Judgment reversed with direction in Case No. A92A0302. Appeal dismissed in Case No. A92A0303.

Pope and Johnson, JJ., concur.

Decided April 30, 1992.

Goldstein & Redic, Dennis M. Redic, Patrick R. Matarrese, for appellant.

Greer, Klosik & Daugherty, Richard G. Greer, Robert J. Mc-Cune, for appellee.


text:
    A92A0343.
    PIZZA HUT DELIVERY et al v. BLACKWELL.
    (418 SE2d 639)
   Carley, Presiding Judge.

Appellee-employee was hired to deliver pizzas for appellant-employer. After suffering a work-related injury, appellee sought workers’ compensation benefits. The award of the Administrative Law Judge was based upon a determination that appellee’s average weekly wage was $140, excluding tips. After its de novo review, the Full Board made an award based upon a determination that appellee’s average weekly wage was $350, including tips. On appeal to the superior court, the award of the Full Board was affirmed. Appellant applied to this court for a discretionary appeal, urging that the inclusion of tips in the determination of appellee’s average weekly wage was erroneous. The instant appeal results from the grant of appellant’s application.

“Average weekly wages” under OCGA § 34-9-260 has long been interpreted to include an employee’s tips. Employers Commercial Union Ins. Co. v. Bryant, 130 Ga. App. 596, 597 (2) (203 SE2d 896) (1974). Appellant relies, however, on Rule 260 (a) of the Board, which provides: “Computation of wages shall include, in addition to salary, hourly pay, or tips, the reasonable value ... of other benefits furnished by the employer without charge to the employee which are listed as earned income on [the] employee’s Federal Form W-2 for federal income tax purposes.” (Emphasis supplied.) Since appellee’s tips were not listed on his W-2 form, appellant urges that appellee’s tips cannot be included in the calculation of his average weekly wages.

Initially, we point out that the wording of Rule 260 (a) is essentially irrelevant. “Average weekly wages” under OCGA § 34-9-260 has been judicially interpreted to include an employee’s tips and no rule promulgated by the Board can change that interpretation or qualify it by imposing a limitation that tips must be listed on an employee’s W-2 form in order to be includable as a component of “average weekly wages.” Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 284-285 (293 SE2d 741) (1982).

Moreover, it is clear that the above-emphasized language of Rule 260 (a) does not include “tips.” “Tips” is not only a separately enumerated component of an employee’s wages, it is not a benefit “furnished by the employer without charge to the employee. . . .” It is a gratuity furnished to the employee by the employer’s customers. Compare Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236 (407 SE2d 464) (1991). As properly construed, Rule 260 (a) mandates only that certain employee benefits be included with other components, such as tips, when determining the employee’s “average weekly wage.”

Decided April 30, 1992.

Swift, Currie, McGhee & Hiers, Robert B. Peery, for appellants.

Morgan & Silver, Kent E. Silver, for appellee.

Even if “tips” were included in the above-emphasized language of Rule 260 (a), it is otherwise clear that appellant has no grounds for complaint. “[W]e will interpret the term ‘earned income on [the] employee’s Federal Form W-2’ as used in Rule 260 (a) . . . to encompass all payments or noncash benefits required to be reported on the employee’s W-2 form as income earned by the employee because they constitute real economic gain to the employee and thus are part of the employee’s ‘wage’ within the meaning of OCGA § 34-9-260.” (Emphasis supplied.) Atlanta Journal & Constitution v. Sims, supra at 238. It is required that “tips” be reported on the W-2 form that appellant provides to its employees and, if appellant did not list appellee’s tips on his W-2 form, that would certainly not estop appellee from having his tips included in the computation of his “average weekly wages.” The failure to list appellee’s tips on his W-2 form is attributable to appellant and not to appellee. Any failure to pay income tax on unreported tips is a matter for resolution between appellee and the state and federal governments.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0378.
    MERIWETHER v. THE STATE.
    (418 SE2d 451)
   Johnson, Judge.

Robert L. Meriwether was charged with one count of aggravated assault. After a jury trial, Meriwether was found guilty and sentenced to 12 years in prison. No motion for a new trial was filed. Meriwether appeals his conviction.

It is uncontested that Meriwether shot Felix Holloway once in the stomach in a dispute over an amplifier. At the time of the shooting, Holloway was raking the yard outside his house. As his defense, Meriwether asserted that he was afraid that Holloway would injure him with the rake, and fired the shot in self-defense.

1. Meriwether asserts as his first two enumerations of error that trial counsel: 1) failed to procure the attendance of certain defense witnesses; and 2) did not request a continuance for the purpose of securing their presence. No objection to the absence of the witnesses nor motion for continuance was made at trial.

It is clear that appellant is attempting to raise the issue of ineffective assistance of counsel because the first two enumerations deal with conduct of trial counsel and not with any action or inaction by the trial court. The issue of ineffective assistance must be considered as being raised on appeal. Thus, the question becomes whether or not the case must be remanded under Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986) or whether we must hold that the issue has been waived. In this case, trial counsel did not file a timely notice of appeal. Meriwether petitioned for an out-of-time appeal which was granted by the trial court on September 19, 1991. At that time new counsel was appointed to pursue the appeal. No motion for new trial was filed. Instead, a notice of appeal was filed on October 23, 1991. The order granting an out-of-time appeal was entered after the Supreme Court’s decision in Ponder v. State, 260 Ga. 840, 841 (400 SE2d 922) (1991). Accordingly, we believe that Ponder controls. In Ponder, the Supreme Court held “that the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial subsequent to the grant of the out-of-time appeal in which the issue is raised and resolved by means of an evidentiary hearing. [Cits.]” In this case counsel did not pursue a motion for new trial after the grant of the out-of-time appeal and therefore the issue has been waived. Compare Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), and Haas v. State, 262 Ga. 169 (416 SE2d 88) (1992).

2. Meriwether contends that the weight of the evidence is contrary to the verdict. We disagree. In addition to the victim, several eyewitnesses to the incident testified at trial. Meriwether himself admitted the shooting both in a written statement to the police following his arrest and at trial. The jury was charged on the defense of justification, but did not find that the shooting was in self-defense. Reviewing the record in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Meriwether guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 30, 1992.

Richard L. Montgomery, for appellant.

Peter J. Skandalakis, District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

3. Finally, Meriwether asserts that he is entitled to a new trial on the basis of newly discovered evidence. The new evidence, he contends, would show that the victim has a history of violence and that family members who testified at trial were attempting to attack Meriwether when the shooting occurred. It is clear from a review of the record, however, that Meriwether testified at trial about prior acts of violence by the victim and he feared that family members were approaching him. We therefore do not see the novelty of evidence of the history of violence. No motion for a new trial based on newly discovered evidence was submitted to the trial court for consideration and therefore there is no ruling for us to review. “[E] numerations of error which raise questions for the first time on appeal present nothing for decision.” (Punctuation and citations omitted.) Martin v. State, 196 Ga. App. 145, 148 (4) (395 SE2d 391) (1990).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0534.
    POPE v. PRESSLEY.
    (418 SE2d 635)
   Beasley, Judge.

Pope sought damages for injuries he incurred in an automobile collision between his vehicle and that of Deborah Pressley. The jury returned a verdict in favor of Pressley, and Pope’s motion for new trial was denied.

The evidence showed that on August 11, 1987, between 7:30 and 8:00 a.m. on a clear, dry day Pope was driving to work on the eastbound lanes of the Stone Mountain Freeway, a six-lane highway divided by a 30-foot grass median. Pope was in the far right lane when Pressley’s car crossed from the westbound lanes across the 30-foot median and two other eastbound lanes to collide head-on with Pope’s car, causing serious injury to both drivers. Pressley was travelling west in the far left lane at 40-45 mph in a 55-mph zone as she crested a hill and saw the cars in front of her stopping, as she knew was typical during rush hour. She had to brake to avoid hitting the car in front of her.

Pressley testified that she did not slam on her brakes but that when she applied her brakes they “locked” and the car did not slow down. She made the conscious decision to turn off into the median, thinking that she would avoid hitting another car that way and that her car would coast to an eventual stop. Instead, her car crossed the median and the first two eastbound lanes and collided with Pope’s car. Pressley told the police that her car had malfunctioned, that her brakes had “locked up.” The vehicle was damaged too severely to conduct any tests on the braking system.

The driver directly behind Pressley testified that traffic was moving approximately 40 mph when he observed her car make an abrupt, sharp, very hard right turn into and across the median, and into the oncoming traffic without ever slowing down. Skid marks extended about 60 feet from Pressley’s lane of travel. A few months before the collision Pressley had experienced the brakes briefly locking when she had to make a sudden stop and slammed them on. After that hap.pened, her husband Tom took the car to his father, a professional auto mechanic, to check out the problem. The brakes appeared to both of them to be in good working order, and Tom subsequently drove the car on several occasions without problem. On the morning of the collision Pressley noticed nothing unusual about the braking system before the brakes locked.

Pressley contended the collision was caused by a sudden and unexpected brake failure. Pope argued that the evidence proved both ordinary negligence and numerous violations of the Uniform Rules of the Road and other statutes regulating motor vehicles (OCGA §§ 40-6-1 et seq.; 40-8-50; 40-8-53; 40-8-54) by Pressley; and that negligence per se was established as a matter of law through violations of those statutes. See Cox v. Cantrell, 181 Ga. App. 722 (5) (353 SE2d 582) (1987).

1. (a) In his first two enumerations of error, Pope contends that the trial court erred in refusing to give his requests to charge regarding the shifting of the burden of proof once a violation of a statute is established, and authorizing a finding of negligence per se even without a conviction on a traffic violation. Enumerations of error 3 and 4 challenge the instruction given on the principles of legal accident and sudden emergency.

Exceptions were made regarding these charges after the jury charge only by referencing their numbers.

We assume without deciding in this case that the exceptions were properly made and preserved. The trial court did instruct the jury that in order to recover the plaintiff must prove that the defendant was negligent in one or more ways; that violation of a law or ordinance was negligence per se; that a driver violated the traffic laws if he or she followed another vehicle too closely than was reasonable or prudent, moved in or outside of his or her lane of traffic without first ascertaining if it could be done with safety, failed to drive on the right-hand side of the highway or into the median of a divided highway, or drove at a speed greater than is reasonable or prudent under the conditions; that the plaintiff contended the defendant had violated these laws and it was the jury’s duty to determine if any of these violations had taken place; and that even if it found that the defendant did not violate any of these laws it could still find that the defendant was negligent, but in such a case the burden of proof remained with the plaintiff.

In light of these instructions it was unnecessary for the trial court to instruct the jury about traffic tickets or convictions since the jury had only to determine whether a statute or ordinance had been violated to find defendant negligent. “Reviewing the charge as a whole and the [refused requests] in this context, [cit.], the charge given covered the general principles of negligence and repeatedly covered negligence per se. . . . It also appears that the charge may have weighed in [Pope’s] favor. [Pressley] denied negligence and also denied intentionally violating the [traffic laws], so that the jury could have rejected negligence per se, [cit.], and [Pope’s] evidence supported the alternative theory that [Pressley’s actions were] reckless and therefore negligent even if not negligent per se. [Cit.]” Lashua v. Tomlin, 194 Ga. App. 3, 4 (389 SE2d 767) (1989). The failure to give Pope’s requested charges does not show harmful error as a matter of law so as to require their consideration under OCGA § 5-5-24 (c). Lissmore v. Kincade, 188 Ga. App. 548, 551 (4) (373 SE2d 819) (1988).

(b) As to Pope’s objections to the charges on legal accident and sudden emergency, again we will merely assume proper raising and presentation.

There was evidence that defendant was not negligent in the maintenance of the brakes or in the operation of her vehicle on this occasion. There was evidence that a sudden emergency not arising from any failure to exercise due care on her part by act or omission, led to the collision. There was evidence that the occurrence was one which “[took] place in the absence of negligence and for which no one would be liable.” Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983).

Thus, as in Kelly v. Adams, 197 Ga. App. 574, 575 (1) (398 SE2d 848) (1990), “a charge on legal accident was appropriate. Along with evidence that the [collision] could have been caused in whole or in part by negligence, there was also evidence authorizing the jury to conclude that [it] was not proximately caused by the negligence of any party.” Similarly, “[w]hether or not an emergency existed is a question for the jury except in plain and palpable cases. [Cits.]” Kelly, supra at 576 (2). Charges on legal accident and sudden emergency were supported by the evidence and properly submitted to the jury. Accord Wilhite v. Tripp, 179 Ga. App. 428 (1) (346 SE2d 586) (1986), which points to the “unforseen or unexplained cause” aspect of the law of accident. In this regard, see also Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 504 (4) (399 SE2d 476) (1990).

2. After the jury began its deliberations, upon its request the trial court recharged it on the law of negligence and legal accident. Pope objected to the recharge on accident on the ground it was an inappropriate charge to begin with, and to repeat the negligence instruction when negligence per se was not recharged did not “give the jury the complete picture.” He admits that the trial court was not required to reread the entire charge and was obliged only to charge such parts as were necessary to answer the jury’s request, but he contends that when the recharge is patently incomplete and obviously misleading due to the court’s failure to again inform the jury of the complete law on a requested subject, a new trial must be granted.

Both recharges were accurate statements of the law and adjusted to the evidence. See Adams v. Finlayson, 199 Ga. App. 821 (1) (406 SE2d 227) (1991). “ ‘It is not error to limit a recharge to the question asked. [Cit.] In fact, “(r)esponding to a jury’s request to restate portions of the charge is generally required of the trial judge, (cit.), and it is within the trial judge’s discretion to recharge only that which is specifically requested. (Cit.)” [Cit.]’ [Cit.]” Jones v. State, 198 Ga. App. 881, 883 (2) (403 SE2d 867) (1991). It was not reversible error to recharge as was done and to exclude a recharge on negligence per se.

3. Pope urges that the trial court erred in allowing Pressley’s husband to testify over objection that from what he observed, the brakes on her car appeared to be in good working order prior to the collision. The argument is that a proper foundation was not laid in that the witness’ expertise as an auto mechanic was not established and.it was not shown that he personally inspected the brakes.

Mr. Pressley testified that while he had no formal training as an auto mechanic, he had worked on cars all his life as his father was a mechanic who owned his own shop and had enlisted his help; that after Pressley first experienced the brief locking of the brakes when she had to make a sudden stop, he took the car to his father, who inspected the braking system and no repairs were done; that from what he observed during this inspection the braking system appeared to be in good working order; that he drove the car thereafter and experienced no problem; that he had a general understanding of automobile braking systems, although not necessarily full cognizance of the system in his wife’s car as he understood they were not conventional; and that he would not have driven an unsafe car, nor would he have allowed his wife to do so.

“ ‘Whether a witness is qualified to give his opinion as an expert is within the discretion of the trial court, and such discretion will not be disturbed unless manifestly abused. (Cits.)’ [Cit.] ‘Generally nothing more is required to qualify an expert than that he has been educated in a particular trade or profession; and this special knowledge may be derived from experience as well as study and mental application. (Cits.)’ [Cit.] . . . Moreover, ‘(a)utomobiles today are items well within the common knowledge of everyone including jurors. . . .’ [Cit.] Thus the jurors could be expected to draw upon their own knowledge and experience in dealing with automobiles in weighing the reasonableness of the [testimony] offered by this witness. [Cit.]” Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94, 97 (2) (400 SE2d 389) (1990). Accord Bales v. Shelton, 197 Ga. App. 522 (3) (b) (399 SE2d 78) (1990). In any event, “[o] pinion evidence by a non-expert witness is admissible where testimony is given as to the facts upon which the opinion is based. [Cits.] Such opinion testimony does not establish any fact, as a matter of law, and a jury is not bound by it. [Cit.]” Cameron v. Moore, 199 Ga. App. 800, 802 (2) (406 SE2d 133) (1991).

Decided April 30, 1992.

Long, Aldridge & Norman, Phillip A. Bradley, for appellant.

Harper, Waldon & Craig, J. Blair Craig II, for appellee.

4. Contrary to the appellant’s arguments that there was no evidence to excuse the appellee’s negligence per se or to support her claim that her actions were necessitated by a “most unusual” brake failure, the jury was authorized under the alternatives presented by the evidence to find that the collision was not proximately caused by negligence, but could have resulted from an unforeseen or unexplained cause. Adams, supra at 822 (1). The trial court did not abuse its discretion in denying the appellant’s motion for new trial.

Judgment affirmed.

Birdsong, P. J. and Andrews, J. concur.


text:
    A92A0648.
    COOK v. GEORGIA POWER COMPANY.
    (418 SE2d 451)
   Carley, Presiding Judge.

Pursuant to OCGA § 22-2-100 et seq., appellee-condemnor initiated condemnation proceedings against the property of appellantcondemnee. From the award of the special master, appellant filed not only a timely appeal as to the amount of just and adequate compensation, but also timely exceptions as to certain legal issues. The superior court overruled appellant’s exceptions and entered judgment condemning the property. From that judgment, appellant brings the instant appeal, even though the issue of just and adequate compensation is still pending below.

Decided April 30, 1992.

F. Robert Raley, for appellant.

Jones, Cork & Miller, Warren W. Plowden, Jr., W. Kerry Howell, for appellee.

The judgment condemning appellant’s property is not the final order in the instant condemnation action because an appeal “to the superior court [as to the amount of just and adequate compensation is] still pending in that court. . . . [A]ppellant has [not complied with the interlocutory appeal requirements of OCGA § 5-6-34 (b)]; thus, the appeal must be dismissed. [Cits.]” Concept Capital Corp. v. DeKalb County, 172 Ga. App. 838 (325 SE2d 169) (1984). See also Coffey Enterprises Realty & Dev. Co. v. Dept. of Transp., 159 Ga. App. 903 (286 SE2d 44) (1981) (condemnation pursuant to OCGA § 32-3-4 et seq.).

Chamlee v. Dept. of Transp., 189 Ga. App. 334 (375 SE2d 626) (1988) (condemnation pursuant to OCGA § 32-3-4 et seq.) and Cox Communications v. Dept. of Transp., 178 Ga. App. 499 (343 SE2d 765) (1986), rev’d on other grounds 256 Ga. 455 (349 SE2d 450) (1986) (condemnation pursuant to OCGA § 32-3-4 et seq.) do not compel a different result. The issue of jurisdiction was not considered in either of those cases and neither is, therefore, authority which is contrary to our dismissal of the instant appeal. Appellant will be entitled to appeal directly and raise all issues regarding the condemnation of her property when the issue of just and adequate compensation is no longer pending below and all issues have become final. See Skipper v. Dept. of Transp., 197 Ga. App. 634, 635 (1a) (399 SE2d 538) (1990).

Appeal dismissed.

Pope and Johnson, JJ., concur.