text:
    A92A0319.
    HIGDON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (419 SE2d 80)
   Beasley, Judge.

The appellants are the three sons and sole heirs of Joseph R. Higdon, Sr., who died testate on August 8, 1989, naming his son Joseph, Jr. as executor and leaving his estate equally to his sons. In lieu of probating the will the appellants agreed upon a distribution of their father’s estate among themselves. A house owned by Higdon and insured by Georgia Farm Bureau Mutual Insurance Company was valued at $21,000. The brothers agreed on the shares they would each receive from the proceeds of a prospective sale of the house and that this would finalize and complete the estate’s administration.

James was to get title to the house, move in and renovate it for resale, and a deed was executed on October 11, 1989, whereby the other two brothers conveyed their interests to him. Jeffery and his family, who had been living with the father, moved out. The deed was recorded on November 14, 1989, at the same time as a deed to secure debt from James to the bank securing a loan from which the other two brothers received their shares. James moved but never had the homeowners insurance policy assigned in writing to himself or reissued in his name.

James deposed that he called the agent of Farm Bureau who handled his father’s insurance and told her he was in the process of going to the bank and borrowing money “on the estate” to do some remodeling. He figured he would be finished in March and sell the house and asked whether the house was covered. He claims that the agent told him it was and that if he decided to keep the house or the insurance ran out before he sold it she would be glad to help him any way she could on the insurance. The agent denied the conversation.

The house was destroyed by fire on December 23, 1989, and Farm Bureau Mutual denied coverage based upon the following provisions of the father’s policy:

“7. Assignment. Assignment of this policy will not be valid unless we give our written consent.
“9. Death. If any person named in the Declarations or the spouse, if a resident of the same household, dies:
“a. we insure the legal representative of the deceased but only with respect to the premises and property of the deceased covered under the policy at the time of death;
“b. insured includes:
“(1) any member of your household who is an insured at the time of your death, but only while a resident of the residence premises; and
“(2) with respect to your property, the person having proper temporary custody of the property until appointment and qualification of a legal representative.”

After coverage was denied, the will was offered for probate on November 2, 1990. This was 15 months after the father’s death, 13 months after the estate was settled among the heirs and 11 months after the house burned. No administration was undertaken, however, as all property had been distributed and debts paid.

Appellants sued the insurer for all sums due under the policy and for damages for bad faith and attorney fees. Both sides moved for summary judgment on the issue of policy coverage, leaving the question of damages for jury resolution should appellants’ motion prevail. The trial court granted summary judgment to Farm Bureau and denied partial summary judgment to appellants.

Appellants contend that it was the premises, not the occupant, that were insured, and that the term “legal representative” does not require a judicial appointment and “could well mean legal heirs who have taken over and have custody of” the property while the policy was in effect.

Coveragé is determined as of the time of the occurrence. Republic Ins. Co. v. Chapman, 146 Ga. App. 719 (247 SE2d 156) (1978), is a poignant example. When the Higdon house burned, there was no legal representative of the testator. The three brothers had agreed that the estate was completely settled when the deed was executed in October 1989, so the probate of the will and appointment of Joseph, Jr. as executor a year later did not relate back to the fire. “ ‘It is well settled that agreements among the heirs at law to distribute or divide property devised under a will, in lieu of that manner provided by the will, are valid and enforceable.’ [Cits.]” McGee v. Craig, 230 Ga. 553, 557 (2) (198 SE2d 165) (1973). The fact that the will was accepted for probate did not affect the validity or enforceability of the agreement among heirs at law, which in this case was fully consummated before probate. “In a proceeding to probate a will in solemn form the sole issue is devisavit vel non — whether the paper offered for probate is or is not the last will and testament of the deceased.” Thomas v. Roughton, 227 Ga. 127, 129 (1) (179 SE2d 62) (1971).

Jeffery, who resided with his father and was an insured at the time of his death, had moved out of the house prior to the loss and thus his status as an insured household member had terminated. Since James was not a household member when the father died, and there was no member of the deceased’s household who was an insured at the time of the loss, there could only be an insured under the policy if there was someone in proper temporary custody until the appointment and qualification of a legal representative. However, the deed executed to James by Jeffery and Joseph, Jr. was a permanent transfer of title which placed the property in the ownership and “permanent custody” of James. James was not an insured under the policy at the time of the loss because he never obtained the written consent of Farm Bureau to have the policy assigned to him.

If the telephone conversation with Farm Bureau’s agent took place as described by James, he told her nothing to apprise her that after his father’s death the house had been conveyed to him. Rather, he told her he needed to borrow money because he was “in the process of remodeling the estate and all, and [he] just needed to know was there insurance on it for the coverage on the loan.” (Emphasis supplied.) This statement did not describe a situation which would negate the coverage, as the policy made it available to someone in temporary custody of the house. James even testified that the agent told him if he did decide to keep the house to let her know and she would help him on the insurance.

“The insured may not unilaterally substitute another party to become insured excepting under the provisions of the contract, even if he wished to do so. The insured alone may sue on a policy of insurance. [Cits.] Either transfer of title to property or transfer of the policy of insurance without the consent of the insurer voids the policy. [Cits.]” Langley v. Pacific Indem. Co., 135 Ga. App. 29, 31 (4) (217 SE2d 369) (1975) “ ‘[insurance policies are of the nature of personal contracts. The insurer is selective of those risks which revolved around the character, integrity and personal characteristics of those whom they will insure.’ [Cit.] This reasoning is also reflected in [OCGA § 33-24-7].” Republic Ins. Co., supra at 720 (2). Appellants’ reliance on Ga. Farm Bureau Mut. Ins. Co. v. Brown, 192 Ga. App. 504 (385 SE2d 87) (1989), is misplaced. That case involved simultaneous transfers from the insured to another and back. This did not result in a completed sale but was “ ‘merely a sham and device to prevent the institution of a proceeding for alimony on the part of the wife of the insured. [Cit.]’ ” Id. at 506 (1).

Decided May 6, 1992.

Walter S. Meetze, Jr., Allgood, Childs, Mehrhof & Millions, Thomas F. Allgood, Jr., for appellants.

Dunaway & Wallace, Robert W. Dunaway, Jr., for appellee.

“While the result may appear harsh, this court is ‘duty bound to be just before (it is) generous, and “Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance. [Cit.]” [Cit.]’ [Cit.]” Republic Ins. Co., supra at 720 (3).

Since the insurer showed that no coverage existed, the trial court properly granted summary judgment in its favor.

Judgment affirmed.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0382.
    KING v. THE STATE. ODOM v. THE STATE.
    A91A0383.
    (419 SE2d 540)
    Decided May 6, 1992.

      Herbert Shafer, for appellants.

      Robert E. Wilson, District Attorney, Gregory A. Adams, Michael D. Thorpe, Assistant District Attorneys, for appellee.
   Andrews, Judge.

In King v. State, 262 Ga. 147 (414 SE2d 206) (1992), the Supreme Court reversed the judgments of this Court in King v. State, 200 Ga. App. 801 (409 SE2d 865) (1991). Accordingly, our judgments in Case Nos. A91A0382 and A91A0383 are vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgments reversed.

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


author: Birdsong, Presiding Judge.

text:
    A92A0450.
    FASHER PAINTING & DECORATING COMPANY et al. v. BORDELON et al.
    (419 SE2d 82)
   Birdsong, Presiding Judge.

This court granted appellants’ petition for discretionary appeal of the order of the superior court reversing the order of the full Board of Workers’ Compensation (board). The ALJ denied the motion of the Georgia Insurers Insolvency Pool (GIIP) to add the American Policyholders Insurance Company (APIC) as a party defendant in regard to a hearing “to determine the proper party for the handling of claimant’s workers’ compensation benefits.” Thereafter, GIIP filed an application for de novo review by the board of the order of the ALJ denying its motion to add a party defendant. The board vacated the order and remanded the claim to an ALJ to add APIC as a party defendant. Held:

1. Although the superior court characterized the order of the board as an “Award of the Full Board,” the action of the board was merely an order and did not constitute any form of “compensation award” within the meaning of OCGA §§ 34-9-102 and 34-9-103. “There is no magic in nomenclature; thus, in classifying the order of [the board or of an ALJ], we will construe it to serve the best interests of justice, judging the order by its function rather than by its name.” Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169 (1) (390 SE2d 257).

2. OCGA § 34-9-105 (b) expressly provides: “Either party to the dispute may, within 20 days from the date of any such final award or within 20 days from the date of any other final order or judgment of the members of the board . . . appeal from the decision in such final award or from any other final decision of the board to the superior court. ...” (Emphasis supplied.) This statute plainly, clearly, and unambiguously prescribes that only a final award, order, judgment, or decision of the board is subject to appeal to the superior court. Further, “ ‘[t]he Work(ers’) Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation.’ ” Conwood Corp. v. Guinn, 190 Ga. App. 595 (379 SE2d 621). “When a statute ‘is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.’ ” Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490), overruled on other grounds, Spivey v. Whiddon, 260 Ga. 502 (397 SE2d 117). The order of the board remanding the claim to the ALJ to add a party was not a final award or other final order or judgment, neither did it grant or deny compensation. The right to judicial review is restricted to the method prescribed by the Workers’ Compensation Act. See, e.g., Ma con v. U. S. Fidelity &c. Co., 41 Ga. App. 774 (154 SE 702). Accordingly, the superior court lacked jurisdiction over this appeal.

Decided May 6, 1992.

E. Harold Stone, for appellants.

Robert N. Levinson, Robert L. Kiser, for appellees.

Appellees argue that the superior court obviously determined that the board lacked authority to add a party, particularly as all the issues in this claim were res judicata. Regardless of the basis for the superior court’s ruling, it was without jurisdiction in this matter. The propriety of the order of the board can be adjudicated if an appealable award, order, judgment, or decision is entered and a timely appeal is taken as provided by OCGA § 34-9-105 (b). Appellees further assert, however, that this result will leave the board free to exceed its statutorily circumscribed authority at will. The board, however, is under an inherent duty to apply the law in good faith. We will not presume that the board will knowingly ignore this duty and act in bad faith. Moreover, the General Assembly has seen fit, consistent with considerations of both judicial and fiscal economy, to limit the scope of the appellate review by the courts under the Workers’ Compensation Act. Judicial legislation is not the solution to problems such as those posed by appellees; rather, the General Assembly may, if and when it deems necessary, increase the appellate authority of the superior court to correct any real or perceived abuses of judicial discretion by the board.

Judgment reversed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge.

text:
    A92A0833.
    WOODRING v. THE STATE.
    (419 SE2d 84)
   Pope, Judge.

Defendant Raymond Woodring was charged with failure to yield right-of-way and homicide by vehicle arising out of the same set of facts on which the failure to yield charge was based. A jury found him guilty of both offenses and the trial judge imposed a separate sentence for each conviction. Defendant appeals his conviction and sentence on the charge of failure to yield on the ground that the offense should have merged into the vehicular homicide conviction. The State does not contest defendant’s enumeration of error.

We agree with defendant and reverse his separate conviction and sentence for failure to yield right-of-way. See Nash v. State, 179 Ga. App. 702 (1) (347 SE2d 651) (1986); Rank v. State, 179 Ga. App. 28 (2) (345 SE2d 75) (1986).

Decided May 6, 1992.

Jerry C. Gray, for appellant.

Donald Moore, Solicitor, for appellee.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0055.
    COOK v. THE STATE.
    (419 SE2d 84)
   Pope, Judge.

Appellant/defendant Ronald Cook appeals his conviction for armed robbery and aggravated assault.

1. Defendant first contends that the evidence was insufficient as a matter of law to support his conviction. The jury was authorized to find the following facts from the evidence presented: On January 20, 1990, Ronald Biggerstaff and his nine-year-old daughter parked in the MARTA Avondale Station parking lot. As they proceeded to enter the train station a car passed them, stopped, and two men exited the vehicle. One man grabbed BiggerstafFs daughter, placed a knife against her throat, and threatened to kill the child if Biggerstaff did not give them his wallet. Biggerstaff threw down his wallet and the second man, who was later identified by Biggerstaff as the defendant, retrieved the wallet. The man holding BiggerstafFs daughter then demanded that he remove any other cash on his person, and Biggerstaff handed the money in his pocket to defendant. The two men then ran to the car and drove away.

Approximately two hours later an Atlanta police officer noticed a car at a gas station that fit the description of the vehicle used in the armed robbery and assault at the Avondale Station. When the officer approached the vehicle and asked the driver for identification, the driver sped off, and the person pumping the gas escaped on foot. The officer was able to apprehend the vehicle and its occupants, Charles Clay and Lisa Gamble, because the car collided with a bus. When the vehicle was searched, BiggerstafFs driver’s license and various credit cards were recovered from the car. Three knives were also recovered from the vehicle, one which Biggerstaff testified was similar to the one used in the armed robbery.

Defendant used one of BiggerstafFs credit cards in a convenience store. Based on the amount and type of purchase the clerk became concerned that the card was stolen. When defendant attempted to use the card a second time, the clerk checked and was told the card was stolen. The clerk was able to describe defendant to the police and later pick him out of a lineup. Biggerstaff also picked defendant out of a lineup and later positively identified him at a pre-trial hearing, while defendant was seated in a room with 12 similar-looking individuals.

Construing the evidence in the light most favorable to support the verdict, we hold that the evidence was sufficient for a rational trier of fact to find defendant guilty of the offenses charged beyond a reasonable doubt.

2. Defendant argues the trial court erred by allowing evidence of a similar transaction to be presented. Although evidence of prior crimes committed by the defendant is generally inadmissible, exceptions to this rule have developed allowing evidence of other crimes committed by a defendant to be admitted for limited purposes such as to show identity, plan, scheme, bent of mind, and course of conduct. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 (B) that: (1) the State intends to introduce evidence of the independent act for an appropriate purpose; (2) there is sufficient evidence to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

A review of the record reveals that the State met its burden at the Rule 31.3 (B) hearing. The State offered the evidence to prove defendant’s bent of mind. The defendant pled guilty to the prior crime so there was no issue concerning identity. There was also sufficient similarity and connection between the crimes. The prior transaction introduced by the State was that defendant and an accomplice, using a knife, robbed two women in 1987 at a gas station. Both crimes involved armed robbery by the use of a knife with an accomplice and were committed in public places. We hold the trial court did not err in allowing the State to present evidence of a prior similar transaction.

3. Finally, defendant asserts the trial court erred in charging the jury that “a person commits the crime of aggravated assault when he assaults another person with the intent to rob or with a deadly weapon,” because defendant’s indictment charged only that defendant committed aggravated assault with a deadly weapon. After the trial court charged the jury, the State brought this error to the trial court’s attention and requested that the jury be correctly instructed on the indictment’s charge of aggravated assault. Defense counsel objected to recharging the jury on that issue on the ground that it would unduly emphasize the charge on aggravated assault, but refused to waive this issue as a basis for appeal. Defendant cannot claim error on appeal for the trial court’s failure to charge the jury correctly on aggravated assault when the trial court’s failure to give the correct charge was at the defendant’s own request. “ ‘ “(O)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” ’ ” Dobbs v. State, 200 Ga. App. 300, 301 (407 SE2d 782) (1991).

Decided May 7, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Robert W. Houman, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A0110.
    HILSON v. THE STATE.
    (418 SE2d 784)
   Beasley, Judge.

Hilson was convicted of aggravated assault, OCGA § 16-5-21 (a) (2), upon his wife.

His enumerations relate to the testimony of their eight-year-old son and to the basis for the court’s ruling on the motion for new trial. The latter involves a consideration of the evidence, which is viewed favorably to the verdict. Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

Late one night, after defendant had been in the bathroom, he burst into their bedroom and accused his wife of having an affair. He began to choke her and knock her around. She began yelling and screaming. He obtained a wooden baseball bat and beat her legs with it. He later got furious, grabbed her, threw her on the floor, again accused her of having an affair, and hit her legs and thighs with the bat. He told her to put her clothes on and accompany him to the car, where he hit her in the face and eyes with his hands. They returned to the house and he hit her with the bat again, breaking the bone in her little finger. She lost consciousness. When she regained it, defendant was again hitting her with the bat. During this time, he was drinking.

After daylight, the victim asked defendant to take her to the hospital. Instead, he began cleaning up the blood from the two rooms. He later called his friend Godfrey to help him take her to the hospital. Appellant instructed the victim to say that she had been accosted at a gas station by three men who abducted her and beat her up. She initially complied, but the police did not believe her, and she subsequently related the above. Although defendant told the same story to Godfrey, he later admitted to Godfrey that he and his wife had an argument and he had hit her.

Emergency medical personnel who took the victim to the hospital testified that they could tell by her appearance that they needed to get her to the hospital quickly. She was semi-conscious but not ambulatory. She had sustained extreme contusions to her head and other areas, as well as lacerations to her lower extremities. The swelling of her arms was so bad that they could not take her blood pressure. Appellant said he had discovered her in her car in that condition, but these witnesses testified that as they were leaving, appellant leaned over the victim furtively and stated, “Remember what [I] had told you and what we talked about.”

The couple’s eight-year-old child testified that on the night in question, defendant had come into his room, retrieved a baseball bat, and told him that he was going outside. He later heard the sound of the bat hitting on something, and he heard his mother screaming to stop. He heard his father say, “Were you with another man?”

1. Appellant contends that the court erred in permitting the child to testify without taking an oath.

After the prosecution called the child, appellant asked the court to briefly examine him “to determine whethér or not he’s capable to tell the truth and knows the difference between the truth and right and wrong and so on and so forth, that the Court examine him and satisfy itself that he is, in fact, competent to testify.”

The prosecutor referred the court to OCGA § 24-9-5 (b). Subsection (a) states: “Except as provided in subsection (b) . . . , persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.” Subsection (b) provides: “Notwithstanding the provisions of subsection (a) . . . in all . . . criminal cases in which a child was ... a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.”

The State argued that the child was presumed competent and could testify without taking an oath or understanding the concept of an oath. Appellant nonetheless requested a brief examination of the child, stating that OCGA § 24-9-5 does not specify the age at which a child is deemed competent to testify, as do statutes in other states, and “I believe the trial probably hinges on his testimony.” The court responded: “It would probably be the safer thing to determine the competency of the child and the understanding of the child as to an oath. But I understand that the state does not wish the Court to do that and wants to rely on the statute, and that’s something the state has a right to do. It can defend itself on appeal. ... So the child can apparently testify without any inquiry being made by the Court as to the competency of the child or the understanding by the child of an oath.” Defendant excepted to that ruling.

The child was then called as a witness. In response to questioning by the State, the child stated that he knew what it meant to tell a lie; telling a lie was a bad thing and not a good thing; he could get in trouble for telling a lie; when you get in trouble you get a spanking and go to jail; he knew what it was to tell the truth; telling the truth was a good thing and not a bad thing; and he knew the difference between telling the truth and not telling the truth. He responded “yes” to the question: “When you promise this judge sitting up there in that black robe in that big black chair, and these members of the jury seated over there, do you promise to tell them the truth?” He then testified as to the incident on trial.

Appellant argues that notwithstanding the provisions of OCGA § 24-9-5 (b), a child witness must still be administered an oath pursuant to OCGA § 24-9-60, which provides: “The sanction of an oath or affirmation equivalent thereto shall be necessary to the reception of any oral evidence. . . .” OCGA § 17-8-52 sets forth the oath administered to witnesses in criminal cases.

“ ‘In this State an oath or affirmation is required of all witnesses, and unsworn statements are not treated as amounting to any evidence, except “in specified cases from necessity.” ’ [Cit.]” Belcher v. State, 173 Ga. App. 509 (1) (326 SE2d 857) (1985). OCGA § 24-9-5 (b) creates a rule of necessity authorizing the admission of the testimony of children who do not understand the nature of an oath in those cases specified in the Code section. Bright v. State, 197 Ga. App. 784 (3) (400 SE2d 18) (1990). But the necessity must first be established. When a party seeks to admit the testimony of a child, the court must examine the child in order to determine whether the child in fact possesses the requisite degree of intelligence so as to qualify the child as a competent witness capable of being administered an oath. See Smith v. State, 247 Ga. 511, 512 (277 SE2d 53) (1981): “[T]he standard of intelligence required to qualify a child as a witness is not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court. [Cit.]” If so, the child must be sworn.

In this case, the child witness, in response to questioning by the State, demonstrated that he was aware that he was under an obligation to tell the truth and could be punished for not doing so. Although he was shown to be competent, he was not sworn. After the preliminary questioning by the State, appellant failed to request that the child be formally sworn and did not object to his testifying. “Where a party, without objection, allows a witness to testify against him without first being sworn . . . [the] failure to object constitute [s] a waiver of the requirements of an oath. [Cits.]” Belcher, supra at 510; Chapman v. State, 257 Ga. 19, 20 (3) (354 SE2d 149) (1987). Under these circumstances, we find no reversible error.

2. Appellant argues that insofar as OCGA § 24-9-5 exempts children from the requirement of an oath in criminal cases, it violates the equal protection clause (Art. I, Sec. I, Par. II) and due process clause (Art. I, Sec. I, Par. I) of the Georgia Constitution of 1983 and of the Fourteenth Amendment to the United States Constitution. Compare Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989) (rejecting challenges by the state to the constitutionality of OCGA § 24-9-5 prior to its 1989 amendment, on grounds that it discriminated against child victims deemed incompetent witnesses).

Appellant’s challenge to the constitutionality of the statute was not timely; it was not asserted until he filed his motion for new trial. “Under repeated rulings of the court, the constitutional question, presented for the first time in the defendant’s motion for new trial, was not timely raised so as to confer jurisdiction of the appeal upon the Supreme Court. [Cits.]” Gainey v. State, 232 Ga. 334 (206 SE2d 474) (1974). Thus the constitutional issues are not reviewable and the case is properly in this court.

3. Appellant next complains of the trial court’s denial of that aspect of his motion for new trial predicated on the argument that the State failed to prove his guilt beyond a reasonable doubt. The form for a motion for new trial in OCGA § 5-5-42 (d) states the following grounds: “(1) The defendant should be acquitted and discharged due to the state’s failure to prove guilt beyond a reasonable doubt. (2) Although the state proved the defendant’s guilt beyond a reasonable doubt, the evidence was sufficiently close to warrant the trial judge to exercise his discretion to grant the defendant a retrial. (3) The court committed an error of law warranting a new trial.” According to subsection (c), this form is sufficient but not exclusive.

Appellant’s motion for new trial contained a verbatim recitation of the three grounds in the statute. The motion was later amended to add other grounds. In denying appellant’s request for discharge and acquittal due to the State’s failure to prove guilt beyond a reasonable doubt, the trial court perceived the second ground to be an admission that the state had proved guilt beyond a reasonable doubt. Appellant argues that under modern rules of alternative pleading, as well as the circumstances of this case, the inconsistent grounds in his motion should not have been used as admissions against him. We agree.

Decided May 7, 1992.

Cowen & Cowen, Martin L. Cowen III, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

However, the evidence, viewed in a light most favorable to the verdict, Adams v. State, supra, was sufficient to authorize a rational trier of fact in finding appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). For this reason, rather than for the one given by the court, there is no reversible error. See Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989).

Judgment affirmed.

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


text:
    A92A0296.
    In the Interest of W. C., a child. In the Interest of D. M., a child.
    A92A0297.
    (419 SE2d 540)
   Pope, Judge.

Both W. C. and D. M. were adjudicated delinquent of committing acts which, had they been committed by an adult, would constitute two counts of aggravated assault. One act of delinquency arose from an incident that occurred on October 19, 1990, in which Tyrone Murphy was the victim. The second act of delinquency arose from an incident occurring on October 24, 1990, in which Michael Wallace was the victim. Both defendants appeal their adjudications of delinquency.

We hold that there was sufficient evidence to support an adjudication of delinquency against both juveniles. The State presented the testimony of the two victims as well as certain witnesses who corroborated the testimony of the victims. While some contradictory evidence was presented, “ ‘the credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury.’ [Cit.]” In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991). There was sufficient evidence to support the juvenile court’s determination that W. C. and D. M. were delinquent by reason of their acts.

Judgments affirmed.

Carley, P. J., and Johnson, J., concur.

Decided May 7, 1992.

Billy M. Grantham, for appellant (case no. A92A0296).

Ernie M. Sheffield, for appellant (case no. A92A0297).

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.


text:
    A92A0478.
    BRANAM v. THE STATE.
    (419 SE2d 86)
   Beasley, Judge.

Following the denial of her amended motion for new trial, Branam appeals’ her convictions for two counts of child molestation of an 11-year-old boy, OCGA § 16-6-4 (a). A jury found the married 30-year-old mother guilty of molesting the child, who was Branam’s ten-year-old daughter’s friend, by engaging in sexual intercourse with him and by placing her hands on the boy’s penis. Related charges were either not tried at the same time or resulted in acquittal or mistrial.

The victim testified to a course of sexual activity with Branam over a period of several months. It included viewing Branam nude, fondling, masturbation, oral sex, and both vaginal and anal intercourse. Branam admitted at least one episode of vaginal intercourse with the child and one instance of her manual masturbation of him; she maintained that the encounters were initiated by the boy, who was manipulative and the sexual aggressor, and that she submitted to the acts out of fear of what the boy might say to others and of what harm he might do to her, to her daughter, or to himself. She professed to have cultivated the relationship with the child, whom she considered “disturbed,” because she was “just being a Good Samaritan” and “helping out.” In other words, she was seduced.

1. In enumeration of error six, Branam contends that the evidence was insufficient for the jury to have found her guilty beyond a reasonable doubt because the indictment specifically alleged that she molested the boy with the intent to arouse her own sexual desires and there was no evidence of her sexual arousal.

First, Branam’s argument fails to distinguish intent from result. That is, whether or not she in fact received sexual arousal from the acts with the boy is a different question from whether or not she engaged in the conduct intending to receive arousal of her sexual desires.

Second, “(a) reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. [Cit.] ‘(T)he intent with which an act is done is peculiarly a question of fact for determination by the jury and [even when] a finding that the accused had the intent to commit the crime charged [is] supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. (Cits.)’ [Cit.]” Blanton v. State, 191 Ga. App. 454, 455 (1) (382 SE2d 133) (1989).

Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6. There was significant inferential evidence, from her conduct, of Branam’s having committed the sex acts for the purpose of arousing her own sexual desires: participation in the sex acts themselves, continuing and frequent invitation to the boy to come to her home and business, picking the boy up at his home, often permitting the boy to spend the night at her house, constant and lengthy telephone conversations between the two when apart, and bestowal of gifts on the boy. See Blanton, supra at 455 (1).

Contrary to her evidence of lack of sexual arousal, an investigating officer testified that when he asked the boy if Branam said anything during their sexual activities, the boy related that two or three times Branam “would say it feels good.” See OCGA § 24-3-16.

The evidence was sufficient to enable any rational trier of fact to find Branam guilty of the acts of child molestation, as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Enumeration of error number three is that the court refused to give a requested charge: “before you would be authorized to convict the defendant for child molestation or aggravated child molestation, you must first find a general plan of the defendant to use the child to gratify the defendant’s lust or passions or sexual desires.” She maintains that the failure to give the charge resulted in inadequate instruction that the jury could convict only if it found she committed the acts in the way and manner alleged in the indictment.

However, proving statutory intent under OCGA § 16-6-4 does not require a showing of a “general plan.” The court’s initial charge adequately instructed on the intent required to be proven by speaking generally on the element of intent and by giving the statutory definition of the crimes, clarifying at the conclusion of the instruction that the acts had to be committed as charged. In addition, the court stated that the jury would be authorized to convict, if under the evidence and the law, it found Branam “did commit the acts alleged against her in the way and manner they’re alleged.” See Mathews v. State, 176 Ga. App. 394, 395 (4) (336 SE2d 259) (1985).

3. The fourth enumeration is inadequate instruction by refusing to instruct, during recharge, “that the jury was only to convict for conduct in the way and manner alleged in the indictment,” that is, an act with intent to arouse defendant, not the child. The statute covers both alternatives; the indictment was limited only to defendant’s desires. She admits that the child’s sexual desires were aroused and insists that the jury was permitted to convict her on that score even though the indictment did not so charge.

During deliberations the jury foreman informed the court, via the bailiff, that the jury had a question. The jury was returned to the courtroom and the foreman stated: “Sir, we have a problem with the way these indictments are written. The last statement in each indictment reads: Being a child under fourteen years of age, with intent to arouse the sexual desires of said accused. We need to be recharged on the way the law reads.” The court asked counsel to approach for a bench conference on any recharge. Following the conference, which was not reported, the court reinstructed the jury on the statutory definitions of child molestation, aggravated child molestation, and sodomy and concluded, “[a]Iso in response to your question, ... I reinstruct you that no person shall be convicted of any crime until and unless each element of the crime charged in the bill of indictment is proven beyond a reasonable doubt and to a moral and reasonable certainty.”

The court inquired of all the jurors whether or not the reinstruction answered the question and asked anyone not satisfied with the answer to raise a hand, which one juror did. The court permitted the jury to retire to find out what the particular juror’s question was, stating that the jury could come back out with the question. The court added, “If for some reason you do not need to come back out, let me instruct this jury that by giving you this recharge I’m not emphasizing this portion of any charge over the charge as a whole. I merely gave you the recharge because you asked the question; that’s the only reason. So consider the recharge and the charge as a whole as applied to the evidence presented to you.”

In the absence of a transcript of the pre-recharge bench conference, it cannot be determined whether or not Branam timely requested that any recharge be in the same language of the initial charge, i.e., “conduct in the way and manner alleged in the indictment.” Whether requested or not, the court did recharge on the same principle, even though not in the same language. See Division 2. And the court expressly told the jury to consider the recharge along with the initial instruction, which included the subject language. See Division 2. The jury election not to return to the courtroom with further questions, as it was told it could do, undercuts any claim of remaining juror confusion.

The court’s instruction as a whole was “ ‘sufficiently clear’ ” for the jury “ ‘of ordinary capacity and understanding’ ” to understand that it could only convict if the State proved the acts as alleged in the indictment. See Feblez v. State, 181 Ga. App. 567, 568 (2) (353 SE2d 64) (1987).

4. The fifth enumeration is that the charge was inadequate on the issue of intent by the court’s refusal to charge, “the criminal laws are to be strictly applied against the prosecution and ... if two reasonable interpretations may be made of a criminal statute, one of which is consistent with his innocence, it would be your duty to so interpret said law so that the defendant would be found not guilty.”

As outlined in Divisions 2 and 3, the court’s instruction as a whole adequately apprised the jury of the State’s burden of proving the crimes committed in the manners alleged. Moreover, the request was not an accurate statement of the law for which the authority Wood v. State, 68 Ga. App. 43 (a) (21 SE2d 915) (1942), is cited. Nor was it a correct statement of the jury’s responsibility in assessing the evidence in the context of the criminal statutes.

5. The first enumeration is the refusal to charge on the law of similar transactions.

The acts that Branam cites as similar transactions were repeated acts of sexual abuse of the boy during the several months duration of her relationship with him. Even though the State filed a USCR 31.3 notice of its intent to introduce evidence of the additional conduct as similar transactions, it did not need to do so. “ ‘The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.’ [Cits.]. . .

“Because the date alleged in the indictment was not an essential averment, evidence of similar acts occurring within the statute of limitation was evidence of the crime charged and did not fall within the ambit of the rule relating to notice of the State’s intention to present evidence of similar transactions. [Cits.]” Garrett v. State, 188 Ga. App. 176 (1), 177 (2) (372 SE2d 506) (1988).

It was not error to refuse to instruct on the inapplicable law of similar transaction evidence, because these acts were “part of a single, continuous transaction.” USCR 31.3 (E).

6. Enumeration number two cites error in “refusing to charge the jury on the defense of mistake of fact as justification for otherwise criminal conduct, while charging on the law of coercion and indicating to the jury that coercion was the sole defense raised at trial.” The “mistake of fact” is Branam’s alleged “honest belief that [the boy] would either kill himself or blackmail [her] or have sex with Branam’s daughter if she did not cooperate.”

Contrary to Branam’s contention, the trial court did not state that coercion was Branam’s sole defense, although it was the only legal defense presented at trial. What Branam mislabels as a mistake of fact is nothing more than a restatement of her claim that she was forced or coerced into the sexual activity out of fear of the boy’s possible actions. What might occur in the future is not present fact.

Decided May 7, 1992.

Bruce & Hentz, William D. Hentz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary J. Palumbo, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.

There was no error in refusing to charge on the inapplicable defense of mistake of fact.

7. The seventh enumeration challenges the post-trial order permitting three aggravated sodomy counts to remain pending for later trial.

It explained the correlation of the five counts in the tried “dummy indictment” with the eight counts in the indictment and stated that the three aggravated sodomy counts along with the mistried aggravated child molestation count remained pending. The question of a future bar to prosecution because of double jeopardy, OCGA §§ 16-1-6; 16-1-7, is to be presented by a plea in bar or plea of former jeopardy should the State proceed with prosecution of those charges. It is not properly raised in the present appeal. See Gilstrap v. State, 256 Ga. 20, 22 (6) & fn. 2 (342 SE2d 667) (1986).

Branam did file a pretrial “Special Demurrer and Motion to Quash” and a “Motion to Require State to Elect Remedies.” The former alleged inconsistent language with respect to two of the aggravated sodomy counts. The latter alleged that the State collectively by all charges was attempting multiple prosecution for the same conduct, which is a different aspect of the double jeopardy question. Even though a defendant can be convicted and sentenced only once for the same conduct, the State is entitled to prosecute the accused for all crimes committed. See Hight v. State, 195 Ga. App. 727, 728 (3) (394 SE2d 636) (1990).

Branam’s complaint that the State misled her into believing that the aggravated sodomy counts had been abandoned by the failure to join them for trial is not evidenced and is prematurely presented.

Judgments affirmed.

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


text:
    A92A0111.
    GOODWIN v. THE STATE.
    (419 SE2d 39)
   Pope, Judge.

Defendant Maria Goodwin, indicted for malice murder, was convicted of the lesser included offense of voluntary manslaughter. She appeals.

1. The testimony at trial established that defendant was employed by a plant nursery. The crew with which she worked frequently engaged in horseplay at their outdoor work site. On the day in question, the horseplay among the employees had been particularly aggressive. After lunch, defendant threw her chewing gum in a basket of plant cuttings from which the victim was working. The victim approached defendant and told her to stop. Defendant held a bottle of muddy water over the victim. The victim shoved the basket at the defendant and apparently knocked the bottle out of the defendant’s hand. The defendant then placed both hands around the victim’s neck and carried or pulled her by the neck several feet. As other coworkers tried to pull the defendant off the victim, the victim collapsed while the defendant still held on to her neck. The victim died as a result of defendant’s acts.

Defendant presented the argument of self-defense. She also requested a charge on involuntary manslaughter pursuant to the theory that she committed a “lawful act in an unlawful manner,” as set forth in OCGA § 16-5-3 (b). Defendant argues the trial court erred in refusing to give the charge and submit the issue of involuntary manslaughter to the jury. The Georgia Supreme Court in Pullin v. State, 257 Ga. 815 (4) (364 SE2d 848) (1988), expressly rejected defendant’s argument that the use of excessive force in self-defense constitutes the commission of lawful act/unlawful manner involuntary manslaughter. “[I]f [the defendant] is justified in killing under OCGA § 16-3-21 [she] is guilty of no crime at all. If [she] is not so justified, the homicide does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b) . . . for the jury, in rejecting [her] claim of justification, has of necessity determined thereby that the act is not lawful.” Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796) (1983). See also Johnson v. State, 259 Ga. 235 (378 SE2d 859) (1989).

2. Defendant also argues the trial court erred in refusing to give a requested charge on accident. “The essence of the defense of accident is that the defendant’s act was not intentional. The defense of self-defense, on the other hand, admits the intentional commission of the act, but seeks to justify the act based on the legal excuse that the defendant acted from reasonable fear of immediate serious harm. The defenses of accident and self-defense are therefore inconsistent, and a defendant generally is not entitled to a charge on both.” Culbreath v. State, 258 Ga. 373, 376 (4) (369 SE2d 29) (1988).

Defendant argues, however, that the circumstances of her case are materially distinguishable from those in Culbreath, in which the defendant either pulled the trigger of the gun which killed the victim intentionally, though in self-defense, or accidentally during a struggle with the victim. In this case, defendant admits she intentionally-grasped the victim by the neck but, she claims, did not intend to commit bodily harm to her. In support of this argument, defendant points to the testimony of the pathologist who examined the victim’s body and found only minor external evidence of trauma to the victim’s neck. He testified the victim did not appear to have died from asphyxiation or strangulation but from heart arrhythmia brought on by pressure to the carotid sinus of the neck. The pathologist testified that such arrhythmia could be caused by a minor amount of pressure to the carotid sinus and, in particularly susceptible individuals such as the elderly, could even be caused by the pressure of a tight shirt collar. Consequently, defendant argues she should have been allowed to present to the jury her theory that the victim’s death was the accidental result of her intentional act. The Georgia courts, however, have refused to recognize a right to a charge on accident when the defendant’s act was intentional. See, e.g., Culbreath v. State, supra; Duke v. State, 256 Ga. 671 (1a) (352 SE2d 561) (1987); see also Ray v. State, 191 Ga. App. 881 (2) (383 SE2d 364) (1989).

3. At the pre-trial hearing on defendant’s competency to stand trial, the evidence showed defendant was prescribed medication for depression. A jury found defendant to be competent to stand trial. Nevertheless, defendant moved for a continuance for a sufficient period of time to clear her system of the alleged effects of over-medication of the defendant by jail authorities. Defendant argues the trial court erred in denying her motion and abused its discretion by failing to address specifically her grounds for the motion. Instead, the trial court referred to the cost of dismissing the jury panel which had been called for the case and calling another panel at a later date. We find no abuse of discretion. The ground for defendant’s motion for continuance was, essentially, that she was not competent to cooperate fully in the defense of her case. The jury, however, had already found the defendant competent and the trial court did not err in denying the motion.

4. Finally, defendant argues the evidence was insufficient to support the conviction because the indictment accused her of causing the death of the victim by “using her hands to choke [the victim] about her neck . . .” whereas the expert testimony established the cause of death was not asphyxiation or strangulation but, most likely, heart failure. Defendant cites to dictionary definitions of “choke” to argue that the indictment accused her of strangling the victim. We reject this argument. The evidence was sufficient to permit a rational trier of fact to find that the victim’s death was caused by the defendant’s act of using her hands to choke the victim about the neck.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided April 24, 1992

Reconsideration denied May 8, 1992

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A92A0284.
    LANDOR CONDOMINIUM CONSULTANTS, INC. et al. v. BANKERS FIRST FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    (418 SE2d 772)
   McMurray, Presiding Judge.

Plaintiffs, Landor Condominium Consultants, Inc. (“Landor”) and The Colony Place Company (“Colony Place”), brought suit against Bankers First Federal Savings & Loan Association (hereinafter referred to as “bank”) and Edmond M. Smith, a vice-president of the bank, seeking damages for breach of contract, wrongful foreclosure and violations of Georgia’s Racketeer Influenced & Corrupt Organizations Act (“RICO”). The superior court granted summary judgment to defendants and plaintiffs appeal. Held:

Colony Place and Landor attempted to develop a condominium project in Richmond County. Colony Place was to be the developer of the project; and Landor was to provide management services for the project. The bank loaned money to Colony Place for the construction of the project.

Colony Place defaulted on its obligations to the bank and it was put into involuntary bankruptcy. After receiving permission from the bankruptcy court, the bank foreclosed on the project. At the foreclosure sale, the bank bid, paid for and acquired the properties comprising the project. The plaintiffs made no attempt to stop the foreclosures at that time.

In their complaint, plaintiffs sought damages for breach of contract, wrongful foreclosure and RICO violations. More specifically, Colony Place and Landor alleged that the bank failed to continue to finance construction of the project and wrongfully foreclosed on the project; Landor alleged it was a third-party beneficiary of the contracts between Colony Place and the bank; Landor alleged that the bank tortiously interfered with its contracts with Colony Place; Colony Place and Landor alleged that Smith was liable for acts which he committed both in and out of the scope of his duties as an officer of the bank; Colony Place and Landor alleged that the bank violated a partnership agreement between the bank and Colony Place by failing to continue the development of the project.

The claims which Colony Place now asserts against the bank and Smith were settled by the trustee in bankruptcy and the bankruptcy court approved the settlement. In the settlement agreement, the trustee released Colony Place’s claims against the bank and Smith. In addition, on October 30, 1987, both Colony Place and Landor released the bank from all claims.

All of Smith’s actions in connection with the project were performed with the knowledge and consent of the bank. Moreover, Smith performed all such actions in the scope of this employment as an officer of the bank.

In their appeal, plaintiffs raise 17 enumerations of error. All but one of the enumerations assign error on procedural or evidentiary matters. These enumerations of error are without merit. Plaintiffs have failed to demonstrate what effect these purported errors would have upon the merits of the case. See generally Motz v. Landmark First Nat. Bank &c., 154 Ga. App. 858, 860 (4) (270 SE2d 81).

With regard to the enumeration assigning error upon the grant of summary judgment, plaintiffs simply assert that questions of fact remain for trial — but they fail to pinpoint just how those questions arise and we can see no error in the grant of summary judgment inasmuch as Colony Place’s wrongful foreclosure claims against the bank and Smith have been released by the trustee in bankruptcy; and Landor cannot assert such claims because it has no interest in the property. Moreover, Landor cannot assert third-party beneficiary claims against the bank because it is clear that it was not a third-party beneficiary of the loan agreements between the bank and Colony Place. See Lummus Supply Co. v. Fidelity Fed. &c. Assn., 141 Ga. App. 831, 833 (234 SE2d 671).

Landor’s tortious interference claims against the bank were also released. Besides, in foreclosing on the project, the bank was simply exercising its rights under the loan agreements. Thus, it cannot be said that the bank tortiously interfered with Landor’s contracts. See Rebel Sales Co. v. McDuffie & Assoc., 142 Ga. App. 693 (237 SE2d 6).

With regard to plaintiffs’ claim that the bank violated a partnership agreement with Colony Place, plaintiffs released any such claim against the bank. Besides, it is clear that the relationship between the bank and Colony Place was a lender/borrower relationship. The parties were not partners or joint venturers.

Plaintiffs’ claim that the bank breached an obligation to finance the project until its completion is also barred by the releases. Moreover, we fail to see any factual basis supporting such a claim. The bank simply agreed to loan Colony Place money upon stated terms and conditions. It did not agree to finance the project whether or not Colony Place went into default.

Decided April 15, 1992

Reconsideration denied May 8, 1992

Doris B. Harrison, pro se.

D. Landrum Harrison, pro se.

Hull, Towill, Norman & Barrett, Lawton Jordan, Jr., David E. Hudson, for appellees.

Finally, it cannot be said the trial court erred in denying class action certification in this case. The record does not reflect the presence of numerous other claimants with similar claims. Besides, neither plaintiff is represented by an attorney. (The corporations are being represented by their president, D. Landrum Harrison.) Thus, it is clear that plaintiffs would not be able to represent a class adequately. See Stevens v. Thomas, 257 Ga. 645, 649 (361 SE2d 800).

The trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A0165.
    BEASLEY v. THE STATE.
    (419 SE2d 92)
   Sognier, Chief Judge.

Willie Dee Beasley was indicted on charges of possession of cocaine with intent to distribute, possession of cocaine, and possession of less than one ounce of marijuana. The jury convicted Beasley of the cocaine and marijuana possession charges but was unable to agree on a verdict on the charge of possession of cocaine with intent to distribute. After the juries in two subsequent trials also failed to agree on a verdict on that charge, Beasley was discharged and acquitted on that count. He appeals from the conviction on the two possession charges.

1. The first issue in this appeal involves appellant’s conviction on the possession of cocaine charge. Evidence was adduced at trial that early on the morning of February 26, 1991, Officer Chris Miller was patrolling in Albany in a marked police vehicle when he noticed appellant standing on a corner with several other men and holding a plastic bag. Miller testified the other men quickly dispersed as the police car approached and that he saw appellant drop the plastic bag and walk away. Miller retrieved the bag and because it contained a green leafy material Miller suspected was marijuana, he called to appellant to return. Appellant, who was ten feet from the officer and walking towards a cab stand, complied, provided the officer with identification as requested, and was arrested on a charge of possessing what expert testimony at trial established to be just under a third of an ounce of marijuana. Miller testified he later discovered inside the marijuana five items which were identified at trial as 1.7 grams (l/28th of an ounce) of crack cocaine. Appellant was then charged with possession of cocaine with intent to distribute.

The charge of possession of cocaine was based on events that occurred the day after appellant’s arrest while he was still incarcerated. Testimony was adduced that it was the written policy of the Dougherty County Superior Court to request all persons charged with an offense itemized in OCGA § 17-6-1 (a) to submit to testing of the individual’s urine to detect the presence of illegal drugs, as part of the superior court’s consideration of the arrestee’s application for bond, and that Dougherty County maintained a laboratory with a toxicological analyzer used to test urine for the presence of certain illegal substances. Because appellant was charged with possession of cocaine with intent to distribute, see OCGA § 17-6-1 (a) (8), his name was printed on a list of arrestees from whom urine samples were to be requested. Lieutenant Jimmy Sexton of the Dougherty County Police Department testified that as the supervisor of the lab, he followed normal procedure on February 27, 1991, the day after appellant’s arrest, and asked appellant and the other inmates on the list to submit to the testing of their urine. Although the evidence was strongly conflicting, the finder of fact was authorized to believe Sexton’s testimony that he informed appellant prior to obtaining appellant’s consent and collecting the urine that the purpose of the test was for determining bond and that the amount of bond would be set higher if a person refused to take the test or if the person failed the test (i.e., if illegal substances were discovered in the urine). It is uncontroverted that appellant was not informed by Sexton or anyone that the test results would be used for any purpose other than as a consideration for setting bond. Appellant, who was not represented by counsel at the time or informed of his constitutional rights, consented to provide Sexton with a sample of his urine, which, when tested, proved positive for cocaine. Appellant’s bail was set higher as a consequence of the local test results on his urine sample, and based on state crime lab tests subsequently conducted on the same urine sample, appellant was then charged with possession of cocaine. Upon entry of judgment on the guilty verdict on that charge, appellant was sentenced to 15 years, 10 to serve.

The trial court denied appellant’s motion to suppress, his objections at trial, and his motion for directed verdict all made on the basis that appellant’s constitutional rights had been violated by the manner in which the State obtained the evidence to support the possession of cocaine charge. We agree with appellant that the trial court’s rulings were wrong, and we reverse his conviction for possession of cocaine.

Pretermitting the grave questions raised regarding the authority of the Dougherty County Superior Court to condition the amount of bond on an arrestee’s “consent” to submit to what our courts have held to be a search and seizure, see City of East Point v. Smith, 258 Ga. 111, 112 (1) n. 2 (365 SE2d 432) (1988), we find that the evidence regarding the urine sample should have been suppressed because it was obtained in violation of appellant’s Fourth Amendment rights. “ ‘Where the state seeks to justify a warrantless search on grounds of consent, it “has the burden of proving that the consent was, in fact, freely and voluntarily given.” [Cit.] . . . The voluntariness of a consent to search is determined by looking to the “totality of the circumstances,” [cit.], including such factors as the age of the accused, . . . the length of detention, whether the accused was advised of his constitutional rights, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. [Cit.]’ [Cit.]” Allen v. State, 200 Ga. App. 326, 327 (1) (408 SE2d 127) (1991). A consent to search must be the product of an essentially free and unrestrained choice by its maker. Allen v. State, 191 Ga. App. 623, 624 (1) (382 SE2d 690) (1989).

Under the totality of the circumstances presented in this case, see generally Bruce v. State, 191 Ga. App. 580, 581 (2) (382 SE2d 367) (1989), we agree with appellant that the consent he gave Sexton was not voluntary. His consent was premised on the incomplete and thus deceptively misleading information he received from Sexton that the test results would be used only “for determining bond.” Had appellant been cautioned that the results of the search and seizure of his urine would be used to supply evidence against him in an independent criminal prosecution, no consent might have been given. Compare United States v. Watson, 423 U. S. 411, 424-425 (96 SC 820, 46 LE2d 598) (1976). Because appellant was not apprised that he was consenting to provide the State with its sole evidence against him supporting a charge of possession of cocaine, but was instead led to believe that he was only consenting to provide the superior court with information for bond purposes, appellant’s consent cannot be considered to be “the product of an essentially free and unrestrained choice,” Allen, 191 Ga. App. at 624 (1), and accordingly, his consent was not voluntary.

Nothing in Green v. State, 194 Ga. App. 343-344 (2) (390 SE2d 285) (1990) supports the trial court’s rulings in the case sub judice. In Green, the defendant was required to produce a urine sample “pursuant to the terms and conditions of his probation,” id. at 343, and the test results thereon were then used as evidence against the defendant in a charge for possession of cocaine as well as for probation revocation purposes. Because the defendant was required to produce the urine sample under the terms of his probation and the request for urinalysis arose out of his probationary status, there was thus no question of consent in Green and its holding is inapplicable here.

The United States Supreme Court has declared that the courts of this country shall adhere to the rule that “ ‘constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’ ” Schneckloth v. Bustamonte, 412 U. S. 218, 228-229 (93 SC 2041, 36 LE2d 854) (1973). That duty applies not only to this court but also to the Dougherty County Superior Court. We cannot condone a practice which misleads an accused into waiving his constitutional rights and providing the State with incriminating evidence for an independent criminal prosecution under the guise of following a policy promulgated by a superior court for the allegedly innocuous purpose of setting bond. The trial court erred by denying appellant’s motion to suppress.

2. We have reviewed the transcript and find sufficient evidence was adduced to enable a reasonable trier of fact to find beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) that appellant was guilty of misdemeanor possession of marijuana as charged. See McKinney v. State, 192 Ga. App. 6-7 (1) (383 SE2d 608) (1989).

3. Appellant contends his conviction for misdemeanor possession of marijuana must be reversed because the trial court erroneously admitted evidence of similar transactions. The record reveals that appellant did preserve below his objection to the lack of similarity between the charged crimes and appellant’s two prior convictions, both for direct sale of cocaine. Compare Hunter v. State, 202 Ga. App. 195, 197-198 (3) (413 SE2d 526) (1991). The transcript reveals that the State did not present any evidence to the jury to establish the similarity or connection between the earlier convictions and the charged crimes, but instead merely introduced certified copies of the guilty pleas. We have held this procedure to be reversible error. Little v. State, 202 Ga. App. 7, 8 (1) (413 SE2d 496) (1991). Although the State argues that the prior convictions were introduced solely as evidence of intent relevant only to the charge of possession of cocaine with intent to distribute, nothing in the court’s instructions to the jury limited their consideration of the similar crimes evidence to that one particular charge. Thus, we cannot agree with the State that the erroneous admission of this evidence was rendered harmless simply because the jury did not return a guilty verdict on the intent to distribute cocaine charge.

Decided May 8, 1992.

Langley & Lee, Donald W. Lee, for appellant.

Britt R. Priddy, District Attorney, for appellee.

“[E]vidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion.” Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). Even though there was sufficient evidence to convict appellant on the misdemeanor marijuana possession charge, see Division 3, supra, given that the State’s evidence rested solely on the credibility of Officer Miller, whose testimony that appellant was holding the plastic bag was controverted by appellant, we cannot conclude it was highly probable that the admission of appellant’s prior convictions for drug offenses did not influence the jury’s verdict on the misdemeanor charge. See generally Estes v. State, 165 Ga. App. 453, 455-456 (301 SE2d 504) (1983). Therefore, we cannot find that the admission of the evidence was harmless, and accordingly we must reverse appellant’s conviction for misdemeanor possession of marijuana. See generally id.

4. Our holding in Division 3 renders it unnecessary for us to address appellant’s remaining enumeration concerning the denial of his motion for severance.

Judgment reversed.

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


text:
    A92A0351.
    MORELAND v. THE STATE.
    (418 SE2d 788)
   Sognier, Chief Judge.

William Thomas Moreland was convicted of possession of cocaine, and he appeals, contending the trial court erred by denying his motion to suppress.

The evidence showed that Officer Roy Jordan of the Newnan Police Department received an anonymous telephone tip that two black men in a dark red “raggedy” Camaro were selling drugs in the East-gate-Fairmount area of Newnan. No other details were provided by the caller. Within five minutes after receiving the tip, Jordan and Officer Tony Brown arrived in the Fairmount area where they saw a red Camaro driving toward the Eastgate area. The officers could tell there were two persons inside the vehicle but could not determine their race or gender. Based solely on the anonymous tip, Jordan and Brown stopped the red Camaro. Neither officer observed any suspicious activity by the persons in the car. Officer Brown went to the driver of the car, Tommy Lee Hayes, while Officer Jordan approached the front seat passenger, appellant. Jordan testified that at that time he recognized both men and knew they had prior records for drug offenses. Brown testified he told Hayes that “we had information that there were drugs in the car, that we intended to search him and the car,” and removed Hayes from the car. Although Hayes appeared to be drinking, Brown acknowledged the car was not stopped for any possible DUI, and testified that because Hayes tested under the legal limit he was not charged with a DUI offense. Jordan asked appellant to step out of the car and frisked him. He found a thin metal cylinder less than three inches long in appellant’s pocket, which Jordan identified as a device used to smoke cocaine. Expert testimony was adduced that tests conducted on the cylinder revealed it contained one centigram of cocaine. No contraband was discovered in the officers’ search of the car.

We reverse. The facts of this case are indistinguishable from those in Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990), in which we held that the initial stop of a vehicle based solely on an anonymous telephone tip that “two black men in a black truck were selling drugs on Lewis Street, ‘would not warrant a man of reasonable caution in the belief that a stop was appropriate.’ . . . Alabama v. White, _ U. S _ (110 SC 2412, 110 LE2d 301) (1990). The Supreme Court in White, supra, made clear that for an anonymous telephone tip to provide a basis for articulable suspicion for police to make an investigatory stop (see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)), the tip must provide some basis for predicting the future behavior of the subject of suspicion.” Id. at 539. As in Johnson, the anonymous tip in the case sub judice was general and completely lacking in detail. “The tip made no prediction about future behavior by which its reliability could be tested. The tip alone provided virtually nothing from which one might conclude that the caller is either honest or his information reliable; likewise, the tip gave absolutely no indication of the basis for the caller’s predictions regarding the suspect’s criminal activities.” (Punctuation and citation omitted.) Id. “Although the tip [in the case sub judice] certainly warranted police investigation, further observation and corroboration [were] required before a forcible stop was authorized. In White, the Supreme Court stated that the facts of that case made it a close issue. [Cit.] The facts in the present case clearly put it beyond the pale. We hold that the initial stop of [appellant] was not valid because it was not based upon reasonable suspicion.” Id. at 539-540. Thus, we need not address appellant’s arguments that the officer’s pat down was unauthorized, since we hold that the trial court erred by not granting the motion to suppress. Id. See Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991).

Decided May 8, 1992.

Rosenzweig, Kam, Jones & MacNabb, Douglas L. Dreyer, for appellant.

Peter J. Skandalakis, District Attorney, David P. Oliver, Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    A92A0471.
    THOMPSON v. THE STATE.
    (419 SE2d 541)
    Decided May 8, 1992.

      J. Michael Bass, for appellant.
   Sognier, Chief Judge.

Charles Edward Thompson pled guilty to possession of cocaine. He appeals, alleging that his plea was not knowingly and voluntarily entered and that he failed to receive effective assistance of counsel.

1. We have examined the transcript of the plea hearing, and find that at the time the plea was accepted, appellant was cognizant of all the rights that he was waiving and of the possible consequences of his plea. See Haggins v. State, 259 Ga. 188 (380 SE2d 711) (1989).

2. We agree with appellant that he did not waive his claim of ineffectiveness of previous counsel. Given that appellant is now represented by new counsel who filed a timely notice of appeal, and that this court has held that a motion for new trial is not a proper vehicle for contesting a guilty plea, see Lamons v. State, 170 Ga, App. 745 (318 SE2d 509) (1984), we conclude that despite its being raised here for the first time, appellant’s claim of ineffectiveness of trial counsel was raised at the earliest opportunity at which it could have been raised. Brooks v. State, 198 Ga. App. 17 (401 SE2d 78) (1990). See generally Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988); compare Williams v. State, 202 Ga. App. 650 (415 SE2d 67) (1992) (claim of ineffectiveness of trial counsel waived where after trial resulted in conviction, new counsel failed to file motion for new trial despite opportunity to do so). Accordingly, appellant’s claim of ineffectiveness of trial counsel is remanded to the trial court for an evidentiary hearing.

Judgment affirmed as to Division 1. Remanded for appropriate action as to Division 2.

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

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.


author: Carley, Presiding Judge.

text:
    A92A0211.
    WELDON v. THE STATE.
    (419 SE2d 59)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The drug transaction had been secretly taped by the undercover agent who had allegedly purchased the cocaine from appellant. Appellant objected to the admission of this tape recording into evidence, on the ground that the State had not previously made it available to him pursuant to various of his pre-trial motions. The trial court’s overruling of appellant’s objection to the admission of the tape recording is enumerated as error.

Citing OCGA § 24-10-26, appellant had served the State with a pre-trial notice to produce “[a] 11 tapes and recordings taken in this case and any related case.” The tape recording of the drug transaction was clearly not, however, discoverable pursuant to OCGA § 24-10-26. Gilstrap v. State, 256 Ga. 20 (2) (342 SE2d 667) (1986); Deal v. State, 199 Ga. App. 184, 186 (3) (404 SE2d 343) (1991).

Although appellant had filed a pretrial request pursuant to OCGA § 17-7-210, the recording was obviously not of any taped statement given by appellant while in police custody and it was not, therefore, discoverable pursuant to that provision. Likewise, the tape recording would certainly not constitute a written scientific report within the meaning of OCGA § 17-7-211 and it was not, therefore, discoverable pursuant to appellant’s pretrial request pursuant to that provision.

It does not appear that appellant ever made a pre-trial motion seeking to have experts of his own choosing review any tapes which the State intended to tender into evidence at trial. Harrison v. State, 201 Ga. App. 577, 579 (1) (411 SE2d 738) (1991). Compare Carpenter v. State, 252 Ga. 79, 80 (1) (310 SE2d 912) (1984). In any event, the tape recording was not “critical” evidence. Carpenter v. State, supra at 81 (1); Harrison v. State, supra at 580 (1).

2. The credibility of the undercover agent was for the jury. The evidence adduced at trial, when construed most favorably for the State, was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 30, 1992

Reconsideration denied May 11, 1992.

0. Dale Jenkins, for appellant.

Dupont K. Cheney, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

3. Over appellant’s objection, the State was allowed to introduce evidence of appellant’s prior conviction for selling cocaine. Under this evidence, appellant had previously sold cocaine to an undercover agent under circumstances which were remarkably similar to those under which he allegedly sold cocaine to the undercover agent in the instant case. The admission of this evidence is enumerated as error.

“Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). The evidence of appellant’s prior conviction was not erroneously admitted. Manning v. State, 170 Ga. App. 721, 722 (2) (318 SE2d 191) (1984).

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Cooper, Judge.

text:
    A92A0113.
    DANIELS v. THE STATE.
    (418 SE2d 790)
   Cooper, Judge.

Appellant was convicted by a jury of burglary and appeals from the denial of his motion for new trial.

On October 16, 1989, a Lamar County school bus garage was burglarized and a truck, as well as a quantity of tools and other items, were stolen. On October 24, 1989, appellant was driving the stolen truck when he approached a police road block in DeKalb County. Appellant was arrested when a routine check revealed that appellant’s driver’s license had been suspended. The police then discovered the vehicle was stolen. At the police department, appellant told an interviewing officer that he got the truck from a Timothy Barkley; that he was going to purchase the truck from Barkley; and that he had already paid Barkley money toward the purchase of the truck. Appellant did not provide specifics of his encounter with Barkley and could not give the police a phone number or an exact address at which to locate Barkley. Police officers testified at trial that they tried to locate Barkley, to no avail. At the end of October, the supervisor of the school bus garage was reviewing the telephone bill of the garage and noticed a call made to Atlanta at 9:05 p.m. on the night of the burglary. After determining that the call had not been made by employees of the garage, the supervisor notified the police about the bill. The person whose number appeared on the telephone bill was a Mattie Mae Lee (“Lee”) who testified at trial that in October 1989, she lived in Atlanta at the number that appeared on the telephone bill; that she knew appellant; and that she did remember receiving a phone call from appellant in October 1989 during which he told her that he was out of town. Lee also testified that she did not know anyone named Timothy Barkley. When the police searched the truck after appellant’s arrest, they found a Bill of Sale which listed appellant as the buyer and which referenced the truck, but did not reference Lamar County or Barkley as the seller. Various of the spaces on the Bill of Sale had been previously altered with “white-out.” The officers also found in the truck a license tag receipt, which again did not reference Lamar County as the owner, but did have the correct vehicle identification number of the truck. The supervisor of the garage testified that when he searched the truck upon its return by the police, he discovered another license tag receipt in the glove compartment which contained the correct vehicle identification number for the truck but not the correct tag number. Again, spaces in this receipt had been altered with “white-out.” The supervisor testified that the truck was bought new by Lamar County.

Appellant’s sole enumeration of error is that the trial court erred in denying his motion for directed verdict. “A directed verdict of acquittal should be granted only where ‘there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .’ [Cit.]” Tyler v. State, 198 Ga. App. 685, 687 (2) (402 SE2d 780) (1991). “On appeal a reviewing court may consider all the evidence in the case [cit.], and must view the evidence in the light most favorable to the verdict. [Cit.]” Hawkins v. State, 195 Ga. App. 739 (1) (395 SE2d 251) (1990). Based upon our review of the evidence presented at trial, “ ‘(w)e cannot say that there was “no conflict in the evidence and the evidence . . . demand(ed) a verdict of acquittal.” ’ [Cit.]” Horton v. State, 194 Ga. App. 797, 798 (1) (a) (392 SE2d 259) (1990). Although the State’s case was based on circumstantial evidence, such evidence “is not required to exclude every hypothesis save that of guilt, but only reasonable ones.” Tyler, supra at 687. Appellant contended that he purchased the truck from Barkley, yet he could give the police no specific information regarding Barkley. The phone call made from the garage on the evening of the burglary was to an acquaintance of appellant and the acquaintance did not know Barkley. Appellant offered no explanation for this phone call. Appellant was in possession of the truck, which contained altered documents of sale. On these facts, the jury could conclude that the only reasonable explanation was that appellant was guilty of the crime charged. Id.

Decided May 11, 1992.

Martin & Martin, Harold E. Martin, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Sognier,.Chief Judge.

text:
    A92A0358.
    YOUNG v. YMCA OF METROPOLITAN ATLANTA, INC.
    (419 SE2d 97)
   Sognier,.Chief Judge.

Dorothy Young brought suit against YMCA of Metropolitan Atlanta, Inc. seeking damages for injuries she incurred when she slipped and fell on YMCA premises. The trial court granted YMCA’s motion for summary judgment, and Young appeals.

Appellant’s deposition was originally taken in a suit she had previously filed against appellee and dismissed without prejudice. After the filing of the instant suit, appellee sought and obtained an order from the trial court making the deposition part of the record in the case sub judice. In that deposition, appellant stated that for several years she had been attending aquatic exercise classes up to five times a week at appellee’s facilities. After class, she would shower, dry off, then leave the tiled shower area by walking through an open threshold and down one step to the dressing area. Although the record is unclear whether the threshold area and step had been included in recent remodeling undertaken by appellee, the record is uncontroverted that appellant had traversed the threshold area for several weeks after the remodeling had been completed. Appellant was injured when, after participating in a class, showering, and drying off, her feet slipped out from under her as she stepped down from the shower room to the dressing room. Appellant originally ascribed her fall to the presence of soapy water left on the step down by a woman appellant saw departing the shower area just before her.

However, in the errata sheet to her deposition, appellant retracted her statements that there was any substance on the step down, explained she did not mean to indicate that a substance caused her fall, and instead corrected her deposition statements to reflect that she ascribed her fall to the fact that the step down to the dressing room was oversized. The errata sheet with appellant’s signature, which is authorized by OCGA § 9-11-30 (e), was not included with appellant’s deposition when it was filed in the case sub judice but instead was filed by appellant on the day of the hearing on appellee’s motion for summary judgment. However, because the certificate of the officer before whom the deposition was taken does not reflect when the deposition was submitted to appellant and does not contain a statement that appellant waived or otherwise failed to sign the deposition, the record does not positively reflect that the errata and signature sheets were not properly part of appellant’s deposition, see id., and therefore we reject appellee’s argument that the errata sheet could not be considered because it was not part of the deposition. Other than an affidavit submitted by an employee of appellee, appellant’s deposition, as corrected, constitutes the only evidence of record in this appeal.

Based on the changes in appellant’s deposition testimony reflected in the errata sheet, appellant contends this slip and fall case is not a “foreign substance” case but instead is a “defective condition” case. While we agree with appellant’s characterization of the facts in this regard, we do not agree with appellant that consideration of the errata sheet testimony renders improper the trial court’s grant of summary judgment in favor of appellee.

“ ‘For [appellant] to recover under a common law negligence theory, there must have been a defective condition on [appellee’s] premises, which defect was the cause of [appellant’s] fall and of which [appellee] had superior knowledge. . . . The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ . . . [Cit.]” Trillet v. Vulcan Materials Co., 199 Ga. App. 583, 584 (405 SE2d 572) (1991). Even construing the evidence in the case sub judice most strongly in behalf of appellant, see generally Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670) (1991), and even assuming that appellee was negligent in main-taming an oversized step from the shower area to the dressing room, it is clear from the evidence of appellant’s repeated earlier traversals of that very same step that her knowledge of the alleged “defective condition” and potential danger evidenced by the oversized step was equal to that of appellee. See Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312-313 (1) (352 SE2d 212) (1986); Garnett v. Mathison, 179 Ga. App. 242-243 (2) (345 SE2d 919) (1986). The cases cited by appellant to support her position to the contrary are all distinguishable as involving either plaintiffs whose knowledge of the danger was offset by adverse weather conditions or poor lighting, see Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (349 SE2d 241) (1986); Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90) (1988), or plaintiffs whose knowledge gained by traversing the defective condition in one direction did not constitute knowledge of a different danger posed by traversing the condition in the opposite direction. See Robinson v. Western Intl. Hotels, 170 Ga. App. 812 (318 SE2d 235) (1984).

Decided May 11, 1992.

C. Lawrence Jewett, Jr., James L. Bass, for appellant.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellee.

Accordingly, appellant was not entitled to recover in common law negligence from appellee, and the trial court’s grant of summary judgment was proper. Garnett, supra at 243.

Judgment affirmed.

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

       In her brief appellant discusses the testimony set forth in certain depositions, apparently taken in the earlier suit, which the record reflects were not part of the record before the trial court and were not included in the record on appeal. Therefore, we cannot consider appellant’s assertion in her brief that these depositions constituted the evidence for her otherwise unsupported claim of negligence per se. See generally Nodvin v. West, 197 Ga. App. 92, 96 (3) (c) (397 SE2d 581) (1990).


text:
    A92A0858.
    RYAN v. LANUZA.
    (419 SE2d 539)
   McMurray, Presiding Judge.

The Magistrate Court of Fulton County entered a judgment in this action for damages in favor of plaintiff Lanuza and against defendant Ryan. Defendant appealed to the State Court of Fulton County which, after hearing testimony and considering evidence, entered a judgment against him in the amount of $499 principal, plus costs and future interest. Defendant then filed this direct appeal. Held:

Because the judgment in this action for damages was for $10,000 or less and because the appeal to this Court is taken from the decision of a state court reviewing a decision of a magistrate court by de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. Handler v. Hul sey, 199 Ga. App. 751 (406 SE2d 225); Batchelor v. ISFA Corp., 191 Ga. App. 238 (382 SE2d 434); Covrig v. Campbell, 187 Ga. App. 39 (369 SE2d 293); OCGA § 5-6-35 (a) (6, 11).

Decided April 24, 1992

Reconsideration denied May 12, 1992

Jerry G. Ryan, Sr., pro se.

Cheryl Lanuza, pro se.

Appeal dismissed.

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


text:
    A92A0954.
    LEWIS et al. v. BARCLAYS AMERICAN/MORTGAGE CORPORATION.
    (419 SE2d 538)
    Decided April 24, 1992
    Reconsideration denied May 12, 1992
    Ric Lewis, pro se.

      Prior & Buser, Thomas E. Prior, Charles G. Barger, Jr., for appellee.
   McMurray, Presiding Judge.

The Magistrate Court of Clayton County entered a judgment in this dispossessory action in favor of plaintiff Barclays American/ Mortgage Corporation and against defendants Ric Lewis and Carmen Lewis. Defendant Ric Lewis appealed to the State Court of Clayton County which granted plaintiff’s motions for judgment on the pleadings and for summary judgment, and issued a writ of possession to plaintiff. Defendant Ric Lewis then filed this direct appeal.

Because the appeal to this Court is taken from the decision of a state court reviewing a decision of a magistrate court by de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225); OCGA § 5-6-35 (a) (11).

Appeal dismissed.

Cooper, J., concurs. Sognier, C. J., concurs in the judgment only.


text:
    A92A0963.
    GUY v. THE STATE.
    (418 SE2d 778)
   McMurray, Presiding Judge.

Defendant filed this appeal after her conviction for voluntary manslaughter and possession of a firearm during the commission of a crime. Defendant appeals claiming that the trial court’s jury instructions diminished her claim that she shot the victim in self-defense. She also contends the trial court erred in refusing to admit unflattering photographs of the victim into evidence. Held:

1. Defendant challenges the trial court’s charge that “words accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient provocation to excite a sudden, violent and irresistible passion in a reasonable person, and if she acts from such passion and not from malice or any spirit of revenge, then such would constitute voluntary manslaughter.” Defendant argues that this instruction confused the jury because it did not inform them that threats, accompanied by menaces, though not amounting to actual assault, may in some instances justify defensive force.

Jury instructions must be read and considered as a whole in determining whether the charge contained error. Griffin v. State, 199 Ga. App. 646, 647 (3), 649 (e) (405 SE2d 877). In the case sub judice, the trial court charged the jury that the “State has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense.” The trial court also repeatedly, fully and fairly charged on the defense of justification, explaining “that you need not find from the evidence that the deceased actually assaulted the defendant or that such an assault was actually intended.” Under these circumstances, we find it highly unlikely that the jury was misled by the trial court’s instruction on words and menaces. See Taylor v. State, 195 Ga. App. 314 (1) (393 SE2d 690).

2. Defendant contends the trial court erred in refusing to admit a photograph portraying the victim’s use of obscene hand gestures, a photograph portraying the victim’s one-handed display of what appears to be two partially consumed bottles of beer and photographs portraying the victim’s obscene consumption of a cake baked in the likeness of a nude woman. Defendant contends these photographs were relevant to rebut a photograph introduced by the State portraying the victim while casually dressed and smiling while sitting behind the steering wheel of what appears to be a pick-up truck.

“The general character of a victim and his or her conduct in other transactions are irrelevant unless the nature of the matter at issue is such as to make character and previous conduct relevant. See OCGA § 24-2-2.” Harris v. State, 196 Ga. App. 304, 305 (3), 306 (396 SE2d 288). In the case sub judice, it cannot reasonably be said that any of the above photographs were relevant to the issues being tried. However, it is equally clear that a photograph depicting the victim’s use of obscene hand gestures, a photograph showing the victim’s posed drinking displays and photographs portraying the victim’s perverse showmanship are not relevant to defendant’s claim of self-defense. Consequently, we find no error in the trial court’s exclusion of the above described photographs. OCGA § 24-2-2.

Decided April 29, 1992

Reconsideration denied May 12, 1992

Thompson, Fox, Jolliff, Chandler & Homans, Joseph A. Ho-mans, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

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