text:
    A92A1584.
    HAYES v. THE STATE.
    (423 SE2d 729)
   Pope, Judge.

Defendant Timothy Hayes was convicted of possession of cocaine and possession of marijuana in violation of the Georgia Controlled Substances Act. He appeals the denial of his motion for new trial.

1. Defendant first contends the trial court erred in allowing the State to introduce evidence of a previous crime.

At the hearing on the admissibility of the prior crimes evidence (and again at trial) the State presented testimony that in December 1983 officers obtained a search warrant for defendant’s residence. At the time the premises were searched, defendant and two other individuals were present. The search uncovered both marijuana and cocaine at different locations throughout the house as well as various items of drug paraphernalia, including a mirror, razorblade and tray located on a shelf in defendant’s bedroom. Defendant admitted the drugs were his and entered a guilty plea to the offenses of possession of cocaine and possession of marijuana in early 1984. The present offenses occurred approximately seven years later when police again obtained a warrant for the search of defendant’s residence. Defendant was not home at the time of the search, but Keith Rice, a friend of defendant, was present. During the search officers discovered various items of drug paraphernalia throughout the residence including a mirror and razorblade which were found on the mantle in defendant’s bedroom. A white substance adhering to the razorblade was subsequently identified as cocaine. Two marijuana plants were found growing in a bucket in defendant’s bedroom closet. Defendant admitted at trial that the marijuana and items of drug paraphernalia were his, but denied any knowledge of the cocaine. Keith Rice testified at trial and admitted he had purchased the cocaine and brought it to defendant’s house, and testified that the night before the search both he and the defendant snorted the cocaine using defendant’s razorblade and mirror to lay out the lines of cocaine.

Defendant argues it was reversible error for the trial court to admit evidence of the prior cocaine possession charge because the State failed to articulate the specific purpose for which the evidence was being offered and because there was no legitimate purpose warranting admission of the evidence. The record shows that on several different occasions during the hearing to determine the admissibility of the similar crimes evidence the prosecutor articulated the purpose for which the evidence was being introduced, and that the prosecutor specifically stated that the evidence was being offered to show motive, intent, bent of mind and course of conduct. Contrary to defendant’s contention on appeal, we do not think the fact that the prosecutor articulated more than one purpose (motive, intent, bent of mind, course of conduct) for the admission of the evidence “was tantamount to not stating the . . . purpose at all. ...” The trial court ruled the evidence admissible to show intent, motive, similarity of circumstances and knowledge. We agree “there was adequate ‘evidence to establish between the independent crime [ ] and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which [the defendant] is on trial.’ Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991).” Poole v. State, 201 Ga. App. 554 (2) (411 SE2d 562) (1991). See also Hickey v. State, 202 Ga. App. 636 (415 SE2d 60) (1992); Banks v. State, 201 Ga. App. 266 (1) (410 SE2d 818) (1991); Faison v. State, 199 Ga. App. 447 (1) (405 SE2d 277) (1991). Consequently, this enumeration of error is without merit.

2. Defendant challenges the sufficiency of the evidence to support his conviction of the offense of possession of cocaine. Contrary to defendant’s contention on appeal, his conviction was not based entirely on circumstantial evidence, inasmuch as the testimony of Keith Rice constituted direct evidence of his guilt. Drake v. State, 241 Ga. 583 (2) (247 SE2d 57) (1978), cert. denied, 440 U. S. 928 (99 SC 1265, 59 LE2d 485) (1979). Likewise, the present case is distinguishable from Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880) (1988), relied on by the defendant, because in Claybrooks, the only evidence of defendant’s participation in the crime charged was the uncorroborated testimony of an alleged accomplice. In the case at bar the razorblade on which the cocaine residue was detected was discovered on the mantel in defendant’s bedroom, lying next to the mirror which the accomplice said was also used to snort the cocaine. Defendant admitted the mirror, bearing the slogan “Have a snort,” belonged to him. Although the alleged accomplice was at defendant’s house alone at the time of the search, evidence was presented that the accomplice, who spent the night on the couch in defendant’s living room, did not have access to defendant’s bedroom during the night, and that he was still lying on the couch when defendant left for work approximately one hour before officers arrived to search the premises at 7:30 a.m. Defendant also admitted he owned the marijuana plants found in his bedroom closet, and that other items of drug paraphernalia found throughout the house were his.

Decided October 15, 1992.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

The corroborating evidence required to sustain a conviction based upon the testimony of an accomplice “need not be sufficient to warrant a conviction, slight evidence identifying the accused as a participant in the crime is sufficient to support the verdictf, and the corroborating evidence may be circumstantial. Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983)]. [Cit.] Sufficiency of the corroboration of the accomplice’s testimony is for the jury. If some evidence of corroboration exists, this court will uphold the verdict. [Cit.] As the accomplice’s testimony was corroborated, this enumeration is without merit.” Hall v. State, 162 Ga. App. 713, 715-716 (293 SE2d 862) (1982). Accord Lecounte v. State, 183 Ga. App. 407, 408 (2) (359 SE2d 193) (1987).

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A1607.
    BROWN v. THE STATE.
    (423 SE2d 442)
   Pope, Judge.

Defendant Robert Michael Brown was convicted of robbery and appeals.

1. The victim and her husband testified that after the robbery in the parking lot of a grocery store in DeKalb County on October 12, 1991, they reported the crime to the police and provided a description and license tag number of the car in which the suspect drove away. Remarkably, on October 20 the victim and her husband spotted the car on the road, recognized its tag number and the defendant. They followed the car to another store in DeKalb County and the victim went to a telephone booth and called the police. The officer who responded to the call testified that he heard the report of the tag number given over the radio and recognized it as the same number involved in a robbery several days before. Assuming that the officer was referring to an unrelated crime which the State had agreed, in response to defendant’s motion in limine, not to mention at trial, the defendant’s attorney moved for mistrial. During questioning outside the presence of the jury, the officer stated he was referring to the report of the robbery of the victim on October 12. The trial court did not issue a specific ruling on the motion but reminded the officer not to refer to any other crimes. The testimony of the officer resumed without any further objection by the defendant or request for any cautionary instruction to the jury.

Decided October 15, 1992

John H. Tarpley, for appellant.

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

Defendant argues the trial court erred in denying his motion for mistrial. Since the officer did not refer in his testimony to any offense other than the one for which the defendant was being tried, no ground existed for declaring a mistrial and the trial court did not err in failing to grant defendant’s motion for mistrial. Although it is not included in his enumeration of error, defendant also argues the trial court erred in failing to give an instruction or clarification to the jury that the officer was referring only to the crime for which the defendant was being tried. In addition to the fact that this argument is an improper expansion of the enumeration of error which we thus cannot consider on appeal (see MacDonald v. MacDonald, 156 Ga. App. 565 (1a) (275 SE2d 142) (1980)), it has no merit. Curative instructions are not mandatory after the denial of a motion for mistrial. See Foshee v. State, 256 Ga. 555 (1) (350 SE2d 416) (1986). Moreover, defendant’s counsel in this case requested no instruction or statement of clarification to the jury. We conclude the trial court committed no reversible error in its response to defendant’s motion for mistrial.

2. The indictment charging defendant with robbery alleged that he committed the crime by intimidation of the victim by use of threats and coercion and placing the victim in fear of immediate serious bodily harm. We have reviewed the evidence and find no merit in defendant’s argument that insufficient evidence was presented to prove all essential elements of the crime as charged.

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Division 2 and in judgment.


author: McMurray, Presiding Judge.

text:
    A92A2171.
    OWENS v. THE STATE.
    (423 SE2d 731)
   McMurray, Presiding Judge.

Defendant Owens appeals his conviction of the offense of possession of cocaine with intent to distribute. Held:

1. Defendant contends the trial court erred in overruling his motion for directed verdict of acquittal at the close of the State’s case in chief. Contrary to defendant’s assertion, in ruling on his motion for directed verdict of acquittal we are not limited to consideration of only the evidence presented during the State’s case in chief but must consider all of the evidence presented in the case in determining whether the trial court erred in overruling the motion. Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743).

The evidence stated in the light most favorable to upholding the jury’s verdict shows that Officer Rich, while responding to a suspicious vehicle and person call, discovered a vehicle parked behind a business location at approximately 8:30 or 9:00 p.m. Officer Rich approached the vehicle and found a female driver and a male passenger, defendant Owens. The occupants of the vehicle were asked to identify themselves and Officer Rich ran several computer checks on the vehicle and the occupants. The license tag on the vehicle was discovered to have been issued for a different vehicle. Due to the improper tag display and the fact that neither of the occupants of the vehicle had a driver’s license, Officer Rich decided to impound the vehicle. By this time, additional officers had arrived on the scene. The newly-arrived officers began the inventory of the vehicle prior to towing it away and one of these officers found a brown paper bag lying on the ground under the frame on the driver’s side of the vehicle. Inside the paper bag were two large pieces of yellowish-white compressed material wrapped in plastic which was later determined to be 10.33 grams of crack cocaine, enough for approximately 100 doses of the drug. It had been raining earlier and the ground and everything in the area were wet while the brown paper bag was dry. Officer Rich also testified that the bag had not been on the ground under the car when he initially approached the vehicle. Defendant and the female driver disavowed any knowledge of the cocaine.

“The presumption that contraband is in the possession of the owner or driver of an automobile in no way bars defendant from also being found guilty of possession because ‘(i)f two or more persons (share) actual or constructive possession of a thing, possession is joint.’ Thomas v. State, 153 Ga. App. 686, 689 (266 SE2d 335) (1980).” Banks v. State, 200 Ga. App. 378 (1) (408 SE2d 484). The female driver testified that she drove defendant to a bootlegger’s house, left him there, and later picked him up. She testified that when defendant came out of the bootlegger’s house he had a beer and a brown paper sack similar to the one later found under the car, and that defendant put the bag in his pocket. Defendant testified that he never had a brown paper sack, that it was a brown napkin in his hand and that he had thrown it away. There was sufficient circumstantial evidence to establish that defendant had at least joint constructive possession of the cocaine and the evidence as to the quantity of cocaine gives rise to an inference of intent to distribute it. Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339); Banks v. State, 200 Ga. App. 378, supra. A rational trier of fact was authorized, by the evidence presented at trial, to find defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided October 15, 1992.

J. Robert Daniel, for appellant.

Willis B. Sparks III, District Attorney, Pamela Y. White-Colbert, Assistant District Attorney, for appellee.

2. Defendant also complains that the State’s redirect examination of witness Clark exceeded the scope of the cross-examination of the witness and was an abuse of the trial court’s discretion. “ ‘ “Redirect examination and recross are strictly speaking, not for the purpose of introducing new matter, but the judge in his discretion may permit the questioner to inquire about something which he should have asked about during an earlier step but which was overlooked.” Green, Ga. Law of Evidence 317, Witnesses, § 126; (cits.).’ Goodrum v. State, 158 Ga. App. 602 (2) (281 SE2d 254) (1981). ‘The trial judge, in his discretion, found the evidence brought in on re-direct examination to be relevant and admissible. Absent a showing of gross abuse of discretion, we find no error. (Cits.)’ Maher v. State, 239 Ga. 305, 306 (2) (236 SE2d 647) (1977).” Mincey v. State, 251 Ga. 255, 267 (15) (304 SE2d 882). See also Appleby v. State, 256 Ga. 304, 306 (4) (348 SE2d 630).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A92A0885.
    KING v. THE STATE.
    (423 SE2d 429)
   Johnson, Judge.

Michael King was convicted of driving under the influence of alcohol, failure to maintain lane and driving with an expired tag. He appeals from the conviction and the denial of his motion for a new trial.

1. King contends that the trial court erred in ruling that testimony as to King’s reputation for sobriety was irrelevant and therefore not admissible. King claims that testimony as to a criminal defendant’s reputation for a specific character trait is admissible where the nature of the case puts that charactér trait into issue. King, however, has cited no authority holding that testimony as to a defendant’s reputation for sobriety is relevant in a case of driving under the influence of alcohol, failure to maintain lane and driving with an expired tag. “Evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” (Citation and punctuation omitted.) Lucas v. State, 192 Ga. App. 231, 233-234 (3) (384 SE2d 438) (1989). King’s reputation for sobriety has absolutely no relevance to the charges of failure to maintain lane and driving with an expired tag.

King was also convicted under OCGA § 40-6-391 (a) (1) of driving under the influence of alcohol to the extent that he was a less safe driver. King did not contest the allegation that he was under the influence of alcohol while driving; King admitted that he drank alcohol prior to driving his automobile on the night of his arrest. His sole defense was that he was not under the influence of alcohol to the extent that he was rendered a less safe driver. King’s reputation for sobriety is irrelevant because it does not tend to prove or disprove whether King’s alcohol consumption on the night in question rendered him a less safe driver. Accordingly, we find that the trial court did not abuse its discretion in disallowing this evidence. Lucas v. State, supra at 234.

2. King also asserts that there was insufficient evidence to support his conviction. This assertion is without merit.

The arresting officer testified that he saw King’s automobile swerve over the centerline of the road three times. The officer attempted to stop King, at which point King accelerated and drove to the entrance of his apartment complex. King had a strong odor of alcohol on his breath and failed several field sobriety tests. King testified that he drank four-and-a-half beers over a three-hour-and-fifteen-minute period prior to driving his automobile and that this alcohol consumption did not impair his ability to drive. King also admitted that he had a prior conviction for driving under the influence of alcohol. The State presented evidence that the tag on King’s automobile was expired. A defense witness testified as to King’s reputation for good character and truthfulness. King claimed that his alcohol consumption prior to his arrest did not render him a less safe driver. Reviewing the evidence in the light most favorable to the jury’s decision, we find that a rational trier of fact could have found King guilty beyond a reasonable doubt of driving under the influence of alcohol, failure to maintain lane and driving with an expired tag. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 2, 1992

Reconsideration denied October 16, 1992

Spruell & Dubuc, Billy L. Spruell, Brian M. Dubuc, for appellant.

Patrick H. Head, Solicitor, Victoria Aranow, Assistant Solicitor, for appellee.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A0960.
    JACKSON v. THE STATE.
    (424 SE2d 6)
   Sognier, Chief Judge.

Deryk Jackson was convicted of aggravated assault and reckless conduct, and he appeals from the trial court’s denial of his motion for a new trial.

Construed to support the jury’s verdict, the evidence adduced at trial showed that Darrell Austin had gone to visit his young son at an apartment complex in Columbus and became involved in an argument with his son’s mother. When the argument spread to include her current boyfriend, who was appellant’s cousin, several people were nearby, including appellant and his brother Terrance. Appellant and Terrance intervened on behalf of their cousin, and the argument became physical. Austin testified that Terrance knocked his teeth out and appellant hit him in the head, whereupon he ran to his aunt’s apartment in the same complex and told his aunt, Andrea James, and his brother what had happened. Austin testified that his brother had a “quick attitude,” became enraged, and immediately left to see the Jackson brothers. Both Austin and James followed, Austin on foot and James in her car. Austin testified that he and his brother were unarmed; that appellant had a gun in his hand when Austin first saw him upon his return to the scene and immediately began shooting directly at Austin and shouting that he was going to kill him; and that he feared for his life. James testified that Austin’s brother had a bat when he left the house, and that as she turned the corner in her car she saw appellant shoot into the air once near her car and then fire again several times, directly at Austin.

Appellant and other defense witnesses testified he did not have a gun and did not shoot, but ran from the scene when he was surrounded by people armed with bats, sticks, and chains.

1. Appellant first enumerates the general grounds.

(a) Although the evidence regarding the aggravated assault on Austin was in sharp conflict, an appellate court does not weigh the evidence or pass on witnesses’ credibility. It determines only the sufficiency of the evidence. Fitz v. State, 201 Ga. App. 83, 85 (410 SE2d 186) (1991). We hold the evidence was sufficient to authorize a conviction on the assault charge under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Collins v. State, 191 Ga. App. 272-273, 274 (3) (381 SE2d 555) (1989).

(b) The indictment charged appellant with the offense of reckless conduct in that he did “endanger the bodily safety of Andrea James . . . by consciously disregarding a substantial and unjustifiable risk that his act, to-wit: firing a pistol in [her] direction . . . would endanger [her] safety.” Appellant argues that because James testified that appellant shot first in the air and then directly at Austin, the State did not prove the allegations in the indictment with regard to the reckless conduct charge. We do not agree. Although James testified that she did not think he was deliberately firing at her, because he did not know her, she did testify that appellant fired a shot in the vicinity of her car, causing her to fear for her life. We find this evidence sufficient to authorize the jury to convict appellant of the reckless conduct charge as alleged in the indictment under the standard set forth in Jackson, supra. See McCane v. State, 147 Ga. App. 730 (1) (250 SE2d 181) (1978). Compare Miller v. State, 200 Ga. App. 57 (406 SE2d 565) (1991).

2. We find no merit in appellant’s contention that the trial court violated the rule recently set forth in Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), by admitting into evidence as a similar transaction a certified copy of appellant’s prior conviction of aggravated assault. In Stephens the Supreme Court held that the State’s establishment at a pretrial hearing of a prima facie case of similarity does not satisfy its obligation to present proof on that issue at trial. Rather, evidence must also be adduced at trial establishing a connection between the crime on trial and the independent offense “so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime ... on trial. [Cits.]” Id. at 469 (6). In the case at bar, as in Stephens, the State made an offer of proof regarding similarity prior to trial. However, here, as distinguished from Stephens, at trial .the State not only proffered the certified copy of the conviction, but called as a witness a police officer involved in the investigation of the prior crime and established, through the officer’s testimony, the striking similarity of the crimes. Accordingly, the State’s evidence established a logical connection between the crimes such that proof of the prior aggravated assault tended to establish the commission of the crime from which appellant was on trial. The requirements set forth in Stephens for admitting into evidence the certified copy of the prior conviction were thus met. See Poole v. State, 201 Ga. App. 554 (2) (411 SE2d 562) (1991).

Decided September 8, 1992

Reconsideration denied October 16, 1992

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.

3. Appellant contends the trial court erred by finding that he received effective assistance of counsel. Appellant raised this contention below in detail in his amended motion for new trial, and the trial court’s order denying that motion recites that the court heard evidence and argument before ruling on the motion. However, we are unable to address this enumeration because no transcript of the hearing on the motion for new trial is included in the record, and we have ascertained that the hearing was not transcribed. “Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.” (Citations and punctuation omitted.) Collins v. State, 200 Ga. App. 71, 72 (2) (406 SE2d 520) (1991).

Judgment affirmed.

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


text:
    A92A1128.
    TAHOE-VININGS et al. v. VININGS PARTNERS. HEWELL v. VININGS PARTNERS.
    A92A1129.
    (424 SE2d 30)
   Johnson, Judge.

The Vinings Partners (the partners) contracted to purchase an apartment complex from Tahoe-Vinings. After the sale of the property, the partners filed a complaint against Tahoe-Vinings and its general partners, Hiram Cochran and Cochran Properties, Inc. (CPI), and L. David Hewell, the design architect for the project. The partners direct the first four counts of their complaint.against Tahoe-Vinings, Cochran and CPI, alleging breach of express warranty, negligent construction, fraudulent concealment of latent defects, and passive or negligent concealment. In Count 5, the partners seek rescission of the contract. In Counts 6 through 8 the partners assert claims against Hewell for negligence, fraud and breach of contract. In Counts 9 and 10, the partners seek recovery of exemplary damages and attorney fees against all defendants. Tahoe-Vinings, Cochran, CPI and Hewell moved for summary judgment on all counts of the complaint and the trial court denied the motions. Tahoe-Vinings, Cochran and CPI appeal from that ruling in Case No. A92A1128 and Hewell appeals in Case No. A92A1129. We reverse.

Case No. A92A1128

1. Tahoe-Vinings, Cochran and CPI assert in their first enumeration of error that the trial court erred in denying their motion for summary judgment on all of the partners’ claims because of release and waiver language in the agreement. “It is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears.” (Citations and punctuation omitted.) Castellana v. Conyers Toyota, 200 Ga. App. 161, 164 (2) (407 SE2d 64) (1991); Piedmont Arbors Condo. Assn. v. BPI Constr. Co., 197 Ga. App. 141 (397 SE2d 611) (1990). Here, the parties’ agreement provides, “Purchaser [the partners] acknowledges that Seller [TahoeVinings] neither has made nor is hereby making any representations or warranties regarding the condition of the Project, that Purchaser has satisfied itself in all respects regarding the condition of the Project and that Purchaser is taking the Project ‘AS IS, WHERE IS.’ Purchaser expressly releases and waives any claims against Seller for any matter pertaining to the condition of the Project.” The partners have made no showing that such an agreement is prohibited by statute or public policy. All of the partners’ claims pertain to the condition of the project. By the terms of the agreement, however, the partners have released and waived any such claims. They further agreed that Tahoe-Vinings made no representations or warranties regarding the condition of the project and that the partners had satisfied themselves as to the condition of the project. Accordingly, the trial court erred in denying the motion for summary judgment of Tahoe-Vinings, Cochran and CPI as to all of the partners’ claims against them.

2. Because of our decision in Division 1, we need not address the appellants’ remaining enumerations of error.

Case No. A92A1129

All of the partners’ claims against Hewell are based on a letter Hewell wrote to CPI. In the letter, Hewell stated that to the best of his knowledge the construction of the project was substantially completed in a first class, workmanlike manner and in accordance with the architectural plans and applicable laws. The partners’ negligence claim against Hewell must fail because Hewell owed no duty to them; he was not hired by the partners and he had no relationship with them. Badische Corp. v. Caylor, 257 Ga. 131, 132-133 (356 SE2d 198) (1987). The partners’ fraud claim against Hewell also must fail because there is no evidence in the record that Hewell made a wilful misrepresentation or that the partners could reasonably rely on the letter from Hewell to CPI. Bimbo Bldrs. v. Stubbs Properties, 158 Ga. App. 280 (279 SE2d 730) (1981). Finally, Hewell cannot be liable to the partners for breach of contract because he had not entered into any contract with them. The trial court erred in denying Hewell’s motion for summary judgment.

Decided October 2, 1992

Reconsideration denied October 16, 1992

Schreeder, Wheeler & Flint, David Flint, Timothy C. Batten, for appellants (case no. A92A1128).

L. David Hewell, pro se.

Hendrick, Spanos & Phillips, David R. Hendrick, Victoria Tobin, for appellee.

Judgments reversed.

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


text:
    A92A1190.
    SHANNON v. THE STATE.
    (424 SE2d 51)
   Johnson, Judge.

An officer of the Upson County Sheriff’s Department stopped a car being driven by Mark Shannon after observing it cross the center-line of the roadway and operating without working taillights. When Shannon got out of the car, the officer noticed that he was unsteady on his feet, that his eyes were glassy, and that there was an odor of an alcoholic beverage about his person. The officer read Shannon the implied consent rights, and he agreed to submit to a state-administered breath test. The breath test results indicated Shannon’s blood-alcohol content to be .10 grams/percent, and Shannon was charged with driving with defective equipment and violation of OCGA § 40-6-391.

On January 25, 1988, one month after the date of the incident, Shannon filed a demand for a copy of the accusation, a list of witnesses, a copy of his own statements, and copies of all scientific reports. The prosecuting attorney served the documents Shannon had demanded, including the report of the breath test results, upon Shannon’s attorney when the case was called from trial in probate court on March 28, 1988. Shannon was convicted and fined on both charges, and appealed to the Superior Court of Upson County seeking de novo review. An order was entered upholding the convictions on February 11, 1992, from which this appeal is taken.

1. Shannon contends the superior court erred in refusing to reverse the probate court’s denial of his motion to suppress the results of the intoximeter test. He does not deny that he was provided a copy of the report; rather, he contends that because the State failed to provide him with the copy of this report ten or more days prior to trial as required by OCGA § 17-7-211, the state should have been barred from using the evidence. The prosecutor stated in his place that he did not produce any of the documents Shannon had demanded until the start of the trial, and there was no showing by the State that Shannon was provided with a copy of the intoximeter test results by the officer who administered the test, as was found to be sufficient in Johnson v. State, 194 Ga. App. 501 (3) (391 SE2d 132) (1990). However, the exclusionary rule under OCGA § 17-7-211 is triggered only when the prosecutor fails to provide a written report. When a written scientific report is furnished late, the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant. Shannon never requested a continuance or recess, nor was one granted sua sponte by the probate court. A defendant cannot ignore what he believes to be an injustice during his trial, take his chance on a favorable verdict, and complain later. See Wilburn v. State, 199 Ga. App. 667, 669-670 (3) (405 SE2d 889) (1991).

2. Shannon’s contention that his conviction must be reversed because he was denied a de novo review by the superior court is without merit. He complains that he waived his right to a trial by jury in the probate court because he was relying upon the construction of OCGA § 40-13-28 providing for such review articulated in Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988), and that the Supreme Court’s subsequent disapproval of Anderson in Walton v. State, 261 Ga. 392 (2) (405 SE2d 29) (1991), denied him any avenue of appeal that would satisfy due process. This same argument was made and rejected in Holloman v. State, 203 Ga. App. 476, 478 (3) (416 SE2d 839) (1992), where this court held: “When no vested rights are involved, the general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation.” See also Foster v. Bowen, 253 Ga. 33, 34 (315 SE2d 656) (1984). Thus, contrary to Shannon’s assertion, he was not entitled to rely on the former construction of OCGA § 40-13-28 disapproved in Walton, supra.

Shannon’s contention that due process required he be accorded a de novo review in the superior court because the probate court judge was not legally trained has also been considered and repudiated by both appellate courts. Even if we took judicial notice that the probate judge is not a member of the State Bar of Georgia, the Supreme Court held in Walton, a case which also involved an appeal from probate court to superior court, that a review of a record from a court without a law-trained judge satisfies due process requirements. See Walton, supra at 394, n. 5; Pippins v. State, 204 Ga. App. 318 (1) (419 SE2d 28) (1992).

3. Shannon argues that the citation upon which he was prosecuted failed to notify him how he was in violation of OCGA § 40-6-391. We disagree. The citation recited that Shannon was stopped for driving over the centerline, described him as a less safe driver with the smell of alcohol on his breath and unsteady on his feet, who failed the aleo-sensor test and whose blood alcohol content was measured at .10 percent. Shannon was thus clearly apprised that he was being charged with a violation of OCGA § 40-6-391 (a) (1). The trial court correctly refused to grant Shannon’s motion for directed verdict of acquittal on the same ground.

4. Shannon argues that he was entitled to a directed verdict of acquittal because the State failed to prove that he was driving or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive. The arresting officer’s testimony concerning the circumstances surrounding Shannon’s arrest and the charges brought against him was not disputed. This uncontroverted evidence regarding Shannon’s condition after the initial stop was sufficient to show probable cause to arrest him for driving under the influence. Even if the officer had not actually observed Shannon operate his vehicle in a “less safe” manner by crossing the centerline of the roadway, and had only stopped him because of the operation of the vehicle with defective equipment, the failure of an officer to actually observe the vehicle being operated in a less safe manner would be immaterial to the existence of probable cause for his arrest or to his guilt for violating OCGA § 40-6-391 (a) (1). There is no requirement that the person actually commit an unsafe act. See State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990); Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990).

5. Shannon asserts that the superior court erred in failing to find that the probate court lacked jurisdiction because there was no written waiver of jury trial as required by OCGA § 40-13-23. A written waiver of jury trial is a matter of personal rather than subject matter jurisdiction, and a defendant who fails to raise the issue or object to a trial without a jury in the probate court waives the right to a jury trial. See Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991). Once waived in the probate court, the right to a jury trial may not be raised for the first time on appeal to the superior court, or to the appellate court. See Dossett v. State, 261 Ga. 362 (404 SE2d 548) (1991); Walton, supra; Doggett v. City of Manchester, 201 Ga. App. 425 (411 SE2d 288) (1991). Here, the record of the proceedings in the probate court shows that Shannon made no objection to being tried in that court without a jury, and he does not assert that he objected. Instead he argues that he did not at any time expressly make such a waiver. The merits of this contention were clearly laid to rest in Nicholson, and will not be resurrected here. See Gilbert v. City of Manchester, 204 Ga. App. 422 (2) (419 SE2d 487) (1992); Phillips v. State, 200 Ga. App. 709 (409 SE2d 557) (1991); Anderson v. State, 200 Ga. App. 530 (408 SE2d 829) (1991); Perry v. City of Hampton, 200 Ga. App. 329 (409 SE2d 92) (1991); Kolker v. State, 200 Ga. App. 72 (406 SE2d 514) (1991).

Decided October 9, 1992

Reconsideration denied October 16, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Patricia A. Buttaro, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

6. Shannon’s contention that venue was not proven is without merit. The arresting officer testified that he stopped Shannon two miles west of Thomaston on Highway 74. This fact was not disputed and the superior court found that in the absence of a specific issue being made of venue there was sufficient proof. We agree. Hunter v. State, 191 Ga. App. 219 (381 SE2d 525) (1989).

Judgment affirmed.

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


author: Carley, Presiding Judge.

text:
    A92A1214.
    CITY OF ATLANTA v. CHAMBERS. CHAMBERS v. CITY OF ATLANTA et al. CITY OF ATLANTA v. BOWMAN.
    A92A1215.
    A92A1266.
    (424 SE2d 19)
   Carley, Presiding Judge.

A garbage truck owned by appellant-defendant City of Atlanta (City) and operated by one of its employees collided with another vehicle. The occupants of the other vehicle were seriously injured and one died. Appellee-plaintiffs filed suit, seeking to recover for the injuries and the death resulting from the collision. Appellees’ suit was filed against the City and appellant-defendant Chester Funnye, the Commissioner of the City’s Department of Public Works (Commissioner). After extensive discovery, the City and the Commissioner moved for summary judgment. The trial court granted the motion as to all theories of recovery except the City’s vicarious liability for the alleged negligence of the driver of the garbage truck. As to that theory of recovery, the trial court found, “as a matter of law,” that municipal immunity would not constitute a viable defense. In Case Nos. A92A1214 and A92A1266, the City appeals directly from the order on its municipal immunity defense. In Case No. A92A1215, appellee Chambers appeals directly from the order granting summary judgment to the City and the Commissioner.

Case Nos. A92A1214 and A92A1266

1. When considering a motion predicated upon a plea of abatement, such as a motion to dismiss pursuant to subsections (1), (2), (3), (4), (5) or (7) of OCGA § 9-11-12 (b), a trial court is authorized to resolve disputed factual issues. Metric Steel Co. v. BLD Constr. Co., 147 Ga. App. 380, 383 (249 SE2d 121) (1978). In the instant case, however, the City’s motion was clearly not predicated upon a plea of abatement. The City moved for summary judgment based upon its defense of municipal immunity. Municipal immunity is an affirmative defense, such as the statute of limitations, which asserts a bar to recovery and not merely the abatement of an action. Peeples v. City of Atlanta, 189 Ga. App. 888, 889 (1) (377 SE2d 889) (1989). Accordingly, municipal immunity goes to the merits of a recovery and is a proper issue for disposition by motion for summary judgment. On motion for summary judgment, however, the trial court is not authorized to resolve disputed factual issues. Accordingly, summary judgment in the instant case would not be proper unless no genuine issue of disputed material fact remained for jury resolution as to the City’s municipal immunity defense. See City of Atlanta v. Whatley, 161 Ga. App. 705 (289 SE2d 541) (1982).

The trial court did not grant summary judgment as to appellees’ ultimate recovery under their vicarious liability theory. However, insofar as the trial court held that, “as a matter of law,” municipal immunity would not constitute a viable defense to that theory of recovery, it is clear that the trial court, in effect, granted partial summary judgment in favor of appellees and against the City as to that defense. Accordingly, the grant of summary judgment was directly appealable by the City. See Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169 (1) (390 SE2d 257) (1990); Peeples v. City of Atlanta, supra at 889 (1). That grant of summary judgment in favor of appellees would be proper if, but only if, no genuine issue of disputed material fact remained for jury resolution as to the non-viability of the City’s municipal liability defense.

2. “[Tjhere is no disagreement that in general ‘the collection of garbage is a governmental function, for the performance of which a municipality is granted immunity from liability for the negligent acts of its officers and employees.’ [Cit.] One exception to this general rule may arise where a city operates a garbage collection service primarily as a business enterprise and source of revenue, rather than primarily as a public service. [Cits.]” Smith v. Mayor of Savannah, 185 Ga. App. 708 (365 SE2d 529) (1988).

In support of its motion, the City introduced evidence which, if uncontradicted, would demand a finding that its garbage collection service was operated primarily as a public service and not as a source of revenue. That evidence shows that, pursuant to its charter and ordinances, the City operated its garbage collection service without a profit motive and that garbage collection fees were set at a rate intended merely to offset the expenses of providing that service rather than to generate revenue for the City’s use in funding other activities. City of Valdosta v. Bellew, 178 Ga. App. 423 (343 SE2d 111) (1986). “Whether the enterprise turns a profit, or only an incidental profit ([cit.]) is not the controlling point; what is significant is the character of the [enterprise] as ‘primarily a source of revenue’ rather than being used primarily for the benefit of the public regardless of incidental generation of revenues.” Cleghorn v. City of Albany, 184 Ga. App. 732, 735-736 (1) (362 SE2d 386) (1987).

In opposition to the City’s motion, appellees submitted the affidavit of an expert who opined that, if the City employed a different accounting method other than that which the City actually employed, it was possible to derive a different figure as to the profitability of the City’s garbage collection service. Obviously, different accounting methods will potentially result in different figures for profitability. However, the affidavit of appellees’ expert does not suggest that the accounting method employed by the City is in any way improper. Moreover, it is not the accounting method employed, but the character of the garbage collection operation as primarily a source of revenue for the City or primarily a service for the benefit of the public that is controlling. Nothing in the affidavit of appellees’ expert negates the evidence that, regardless of whether revenues may have exceeded expenditures or expenditures may have exceeded revenues in any given year, the over-all character of the garbage collection operation was as a service primarily for the benefit of the public, rather than primarily as a source of revenue for the City.

The affidavit of appellees’ expert also suggests that there are certain mathematical or computational errors in the evidence submitted by the City regarding the revenues and expenditures attributable to its garbage collection operation. However, these purported errors are de minimis and likewise have no material bearing on the character of the City’s garbage collection operation as either primarily a source of revenue or primarily a benefit for the public. The fact that the City had slightly higher revenues or slightly lower expenditures in any given year is not controlling. If public service is primary and profit only incidental, the City has municipal immunity. It is only when profit is primary and public service is incidental that there exists an exception to the general rule of municipal immunity for negligence resulting from the collection of garbage. Smith v. Mayor of Savannah, supra at 708.

Construing the evidence most favorably for appellees, they did not meet their burden of producing evidence “that would take the garbage collection service outside a governmental function and convert it into a ministerial one. [Cit.]” City of Valdosta v. Bellew, supra at 426. The City employee’s act of driving the garbage truck was “exclusively and inextricably intertwined with the garbage collection function of the [C]ity. . . . [It] was so closely associated with the garbage collection function that[, so long as the City did not perform that function primarily as a source of revenue,] the [C]ity was immune from suit by virtue of performance of a governmental function. . . .” City of Valdosta v. Bellew, supra at 425. See also Love v. City of Atlanta, 95 Ga. 129, 134 (22 SE 29) (1894).

3. “[C]hallenge[s] to the constitutionality of the statute [providing for municipal immunity, OCGA § 36-33-1, and the City’s ordinance waiving such immunity to the extent of $1,000 per claim were] not preserved for review because [rulings were] not obtained from the trial court. [Cit.]” Connolly v. State of Ga., 199 Ga. App. 887, 890 (406 SE2d 222) (1991).

4. The City does not enumerate as error the denial of its motion for summary judgment. Accordingly, all we hold in the instant cases is that the trial court erred in granting summary judgment in favor of appellees as to the City’s municipal immunity defense.

Case No. A92A1215

5. The trial court’s grant of summary judgment in favor of the City as to the nuisance theory of recovery is enumerated as error.

“ ‘A municipal corporation, like any other individual or private corporation, may be held liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function.’ . . . Under [Supreme Court] guidelines . . ., there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” (Emphasis supplied in part.) City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979).

Appellees were not injured as the proximate result of the City’s creation or maintenance of a dangerous condition. They were injured as the proximate result of an alleged act of negligent operation of a garbage truck by a City employee. Appellees cannot recover against the City “by alleging that in employing [the garbage truck driver] and retaining him on the payroll it was guilty of maintaining a nuisance when the facts otherwise alleged affirmatively show that the real asserted basis of liability is on the theory of respondeat superior for [his] tortious conduct. . . .” (Emphasis supplied.) City of Cumming v. Chastain, 97 Ga. App. 13, 15 (102 SE2d 97) (1958). Compare Hirsh v. City of Atlanta, 261 Ga. 22 (401 SE2d 530) (1991) (intentional creation of a dangerous blockade).

There is evidence that, at the time of the collision, the City’s employee was in a dangerous condition, in that he was driving the garbage truck while under the influence of drugs and alcohol. However, even assuming that this state of intoxication were to be considered a dangerous condition such as could otherwise constitute a nuisance rather than mere tortious conduct, it was not a dangerous condition which was created by the City. The act of becoming intoxicated while on the job was obviously personal to the City’s employee, and was certainly not in furtherance of his employment with the City. “[I]f the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act. [Cits.]” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 426-427 (3i) (249 SE2d 224) (1978). There was no duty on the part of the City to initiate drug testing for its employees or to monitor them at all times to insure that they did not become intoxicated while on the job. “Where municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the act.” OCGA § 36-33-2.

There is evidence that the City did have a non-intrusive policy of identifying and removing employees who were suspected of substance abuse. However, there is no evidence that the City was somehow remiss in its implementation of this policy after it had the requisite knowledge of its employee’s dangerous condition. There is evidence that the City employee had been previously charged with driving under the influence. However, that charge pre-dates the instant collision by some three years and it did not involve intoxication while on the job. There is also evidence that the City employee had been involved in prior traffic mishaps while on the job, but none involved intoxication. There is evidence that the co-employees of the City employee were previously aware that he would become intoxicated while off the job. There is, however, no evidence that the supervisors, who were responsible for implementation of the policy of identifying suspected substance abusers, were ever aware of the City employee’s prior intoxication while on the job. The evidence shows that the first time that they ever became aware of his on-the-job intoxication was after the instant collision. Since the evidence shows that the City did not have prior knowledge of its employee’s dangerous condition, it follows that the City cannot be held to have incurred liability for its alleged maintenance of that dangerous condition after knowledge thereof. See Stanley v. City of Macon, 95 Ga. App. 108, 111 (2a) (97 SE2d 330) (1957).

The courts have not “been able to give a precise legal definition of nuisance that would apply to all situations. It has been said that pornography cannot be defined but you know it when you see it. A nuisance is in a similar category. While ordinarily whether a nuisance exists is a question of fact for a jury ([cits.]) under some factual situations it can be held as a matter of law that no nuisance exists.” City of Bowman v. Gunnells, supra at 810-811 (2). “The grant of summary judgment [in the instant case] was correct as to the nuisance claim, because the factors set out in City of Bowman v. Gunnells, [supra at] 811 (2) ... , did not exist here.” Robinson v. City of Decatur, 253 Ga. 779 (3) (325 SE2d 752) (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303, fn. 1 (357 SE2d 569) (1987).

Decided September 24, 1992

Reconsideration denied October 16, 1992

Michael V. Coleman, Kendric E. Smith, Lisa E. Steinmetz, for City of Atlanta.

Elizabeth J. Appley, Ralph S. Goldberg, for Chambers.

Bates, Baum. & Landey, Beverly B. Bates, for Bowman.

6. The trial court correctly granted summary judgment as to the claims for negligent retention of the City’s employee and negligent entrustment of the City’s garbage truck to him. “A municipality is immune from liability for the negligent performance of its governmental duties. . . .” (Emphasis supplied.) Sinkfield v. Pike, 201 Ga. App. 652, 653 (3) (411 SE2d 889) (1991). As held in Division 2, garbage collection by the City is a governmental function, for the negligent performance of which the City would be immune from liability.

7. The trial court correctly granted summary judgment in favor of the Commissioner. The acts and omissions of the Commissioner of which complaint is made involve a discretionary function of his office and he is immune from liability unless he acted with wilfulness, malice, fraud, or corruption. Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). “ ‘The record in the present case is utterly devoid of any conduct by [the Commissioner] which could remotely be construed as being sufficient to lift the shield that protects officers acting colore officii.’ [Cit.]” McDay v. City of Atlanta, 204 Ga. App. 621, 622 (1) (420 SE2d 75) (1992). See also Nelson v. Spalding County, 249 Ga. 334, 337 (2b) (290 SE2d 915) (1982).

Judgments reversed in Case Nos. A92A1214 and A92A1266. Judgments affirmed in Case No. A92A1215.

Pope and Johnson, JJ., concur.


text:
    A92A1238.
    HUDSON et al. v. QUISC, INC.
    (424 SE2d 37)
   Johnson, Judge.

Alice M. Hudson and Claude Hudson brought suit to recover damages for loss of consortium and injuries‘Alice Hudson incurred when she slipped and fell at a restaurant owned and operated by Quise, Inc. d/b/a Austin’s Fine Steaks and More. The trial court granted Quisc’s motion for summary judgment and the Hudsons appeal.

Reviewing the evidence in favor of Hudson as the opponent of the summary judgment motion, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the record reveals that after finishing her lunch and attending a meeting at the restaurant, Hudson slipped and fell, injuring her right knee. She testified by deposition that she also slid on the floor in the restaurant earlier that day, but did not fall. There is no evidence in the record to suggest that she notified any employee of the restaurant of that event. She did not note any foreign substances on the floor, but described it as slippery or lacking traction. Months later Hudson called the restaurant and had a conversation with the general manager concerning her fall. She testified in her deposition that the manager told her that the restaurant had a problem with fat molecules from the air collecting on the floor during the night, but that the floor was “degreased” each morning and the molecules did not have an opportunity to collect and cause a slippery condition during the day. Further, they had placed several “watch your step” signs at various locations around the restaurant.

The Hudsons contend the trial court erred by granting summary judgment to Quise because genuine issues of material fact remain for a jury’s consideration. We do not agree. In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show (1) that the defendant had actual or constructive knowledge of a foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). The inquiry must begin with whether Quise had constructive knowledge of the condition of the floor, since there is no evidence that it had actual knowledge of the condition of the floor on the day of the accident. A lack of actionable constructive knowledge can be established by evidence of compliance with reasonable inspection and/or cleaning procedures. This can be accomplished by presenting conclusive evidence that a customary inspection and cleaning program was in place and had been complied with on the specific day in question. See Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443) (1991). Hudson relies on Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991) in which this court held that the defendant/movant failed to meet its burden to affirmatively establish on summary judgment that an inspection had been made on the day the slip and fall occurred, and so had not established that it had exercised reasonable care in inspecting and keeping the premises in a safe condition. In this case, however, the restaurant’s manager testified that the routine cleaning and degreasing was performed on the morning that Hudson slipped as it was each and every morning.

Decided October 7, 1992

Reconsideration denied October 16, 1992

Gannam & Gnann, M. Joseph Gannam, for appellants.

Don Smart, Allison K. Luke, for appellee.

A plaintiff must also show that she was without knowledge of the presence of the foreign substance allegedly causing the injury. As we held in Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991): “The customer must exercise ordinary care for his-own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.)

Hudson slid on the floor shortly before she fell. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). It is clear that she had actual knowledge of the condition of the floor in the vicinity in which she ultimately fell.

The trial court did not err in granting summary judgment to Quise since Hudson failed to exercise due care for her own safety and therefore cannot recover. OCGA § 51-11-7; see also Smith v. Wal-Mart, supra; Allen v. Big Star Food Market, 172 Ga. App. 879 (324 SE2d 820) (1984).

Judgment affirmed.

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


text:
    A92A1269.
    LAWAL v. THE STATE.
    (424 SE2d 36)
    Decided October 6, 1992
    Reconsideration denied October 16, 1992

      Dorothy W. Coprich, for appellant.
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of misdemeanor theft by shoplifting. In Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991), we vacated appellant’s conviction and remanded the case “to the trial court for an evidentiary hearing on the question of whether he made a knowing and intelligent waiver of his right to trial by jury.” Thereafter, the trial court conducted the evidentiary hearing and entered an order finding “that [appellant], being cognizant of [his] right [to a jury trial], nonetheless intelligently elected to have a non-jury trial. [Appellant] personally made a knowing and intelligent waiver of his right to a trial by jury. See Pahnke v. The State, [203 Ga. App. 88 (416 SE2d 324) (1992)].” In the instant case, appellant appeals from the reinstated judgment of conviction and sentence for misdemeanor theft by shoplifting.

1. A transcript of the hearing which resulted in the issuance of the trial court’s order has not been provided on appeal.

“[N]o facts stated in the [order] show on their face that it was incorrect, and we have no way of knowing what other evidence was presented. The presumption is that the trial judge faithfully performed the duties devolving upon him. An appeal with enumerations of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, be affirmed. [Cit.]” Russell v. State, 155 Ga. App. 555, 556 (3) (271 SE2d 689) (1980). It follows, therefore, that the judgment in the instant case must be affirmed. In the absence of a transcript, it is presumed that the evidence authorized a finding that appellant “elected to have a non-jury trial. [Appellant] personally made a knowing and intelligent waiver of his right to a jury trial.” Pahnke v. State, supra at 90.

2. In the prior appeal, we held that, “[i]n the event the trial court determines from the evidence adduced at [the] hearing that the appellant did make ... a [knowing and intelligent] waiver [of his right to trial by jury], then the conviction and sentence may be reinstated, in which event the appellant shall be entitled to file a new appeal directed to this issue and this issue alone.” (Emphasis supplied.) Lawal v. State, supra at 798 (2). Accordingly, we will not consider remaining issues, which do not relate to appellant’s waiver of his right to trial by jury.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.


text:
    A92A1549.
    HENRICKSON v. PAIN CONTROL & REHABILITATION INSTITUTE OF GEORGIA, INC. et al.
    (424 SE2d 27)
   Carley, Presiding Judge.

Alleging that his employment had been terminated as the result of his handicapped status, appellant-plaintiff brought suit against appellee-defendants. After discovery, appellees moved for summary judgment. The trial court granted appellees’ motion and appellant appeals.

1. One of appellant’s claims was that the termination of his employment had been in violation of 29 USCA § 794, which provides, in relevant part, that “[n]o otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” The trial court found that appellant’s claim under this federal statute was time-barred by OCGA § 34-6A-6 (a), the 180-day statute of limitations applicable to a claim under the Georgia Equal Employment for the Handicapped Code. Appellant enumerates this ruling as error, urging that his claim under the federal statute was timely filed within the two-year statute of limitations established by OCGA § 9-3-33 for personal injury claims.

Federal law does not provide a statute of limitations for claims predicated upon 29 USCA § 794. “When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U. S. 261, 266-267 (I) (105 SC 1938, 85 LE2d 254) (1985). Accordingly, the issue for resolution is whether it is OCGA § 34-6A-6 (a) or OCGA § 9-3-33 that constitutes “the most analogous state statute of limitations. . . .” Board of Regents &c. of New York v. Tomanio, 446 U. S. 478, 488 (III) (100 SC 1790, 64 LE2d 440) (1980).

OCGA § 34-6A-1 et seq. prohibits discrimination in the employment of handicapped individuals and must, therefore, certainly be deemed the “most analogous” state statute to appellant’s specific claim under 29 USCA § 794. Appellant urges, however, that OCGA § 34-6A-1 et seq. is not the “most analogous” state statute to the general provisions of 29 USCA § 794. Although appellant’s specific claim may be predicated upon discrimination in his employment, the scope of the federal statute is broader than OCGA § 34-6A-1 et seq. and generally prohibits discrimination against handicapped individuals in any program or activity receiving federal financial assistance. It is appellant’s contention that, under these circumstances, it is the broader provisions of OCGA § 9-3-33, which provide for a two-year statute of limitations for all personal injury claims, that constitutes the “most analogous state statute of limitations” to any and all claims predicated upon 29 USCA § 794.

Appellant relies upon Wilson v. Garcia, supra, as authority for this proposition. In that case, the Supreme Court of the United States mandated the “selection], in each State, [of] the one most appropriate statute of limitations for all [42 USCA] § 1983 claims.” Wilson v. Garcia, supra at 275 (III). Appellant urges that the one most appropriate statute of limitations for all 29 USCA § 794 claims must likewise be selected. However, the holding in Wilson v. Garcia, was predicated upon the fact that 42 USCA § 1983 affords a “unique remedy” which is without any “precise counterpart in state law” and that “any analogies to [state] causes of action are bound to be imperfect.” Wilson v. Garcia, supra at 272 (III). These observations are certainly not applicable in the instant case. As exemplified by OCGA § 34-6A-1 et seq. and various other state statutes, there is nothing “unique” about the remedy that might be afforded a handicapped individual under 29 USCA § 794. Unlike 42 USCA § 1983, 29 USCA § 794 is not broadly drawn so as to encompass numerous and diverse claims of discrimination. It is narrowly drawn so as to encompass only claims of discrimination based solely upon handicapped status. Insofar as employment discrimination is concerned, OCGA § 34-6A-1 et seq. “provide[s] for equivalent remedies” to those afforded handicapped individuals under 29 USCA § 794. Wilson v. Garcia, supra at 272 (III). Under these circumstances, it would be anomalous to hold that a handicapped individual who can predicate his claim of employment discrimination upon 29 USCA § 794, because of the fortuitous existence of Federal financial assistance, would be subject to a different statute of limitations than would the handicapped individual who must predicate his claim of employment discrimination upon OCGA § 34-6A-1 et seq., because of the fortuitous absence of Federal financial assistance. As noted in Wilson v. Garcia, supra at 275 (III), “uniformity within each State is entirely consistent with the borrowing principle” whereby the “most analogous” state statute of limitations is deemed to apply to a federal claim for which no statute of limitations has likewise been established. Insofar as employment discrimination against handicapped individuals is concerned, such intrastate uniformity can only be achieved by applying the 180-day statute of limitations established by OCGA § 34-6A-6 (a) to a federal claim premised upon 29 USCA § 794. It follows that the trial court did not err in so holding.

Decided October 2, 1992

Reconsideration denied October 16, 1992

Mary P. Schildmeyer, for appellant.

Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Eleanor L. Martel, for appellees.

2. Appellant’s state claim for the intentional infliction of emotional distress was filed within the applicable two-year statute of limitations. However, the trial court granted summary judgment in favor of appellees on the merits of this claim and a review of the record shows that summary judgment was properly granted on that basis. “Since, under applicable provisions of state tort law, at-will employment can be terminated for any or no reason, that [appellees determined to demote or discharge appellant] for whatever reason, without more, gives rise to no claim for the intentional infliction of emotional distress. [Cit.]” Borden v. Johnson, 196 Ga. App. 288, 290-291 (2) (395 SE2d 628) (1990). The actions attributed to appellees, “even if done in a manner that embarrassed or humiliated appellant, cannot be characterized as the type of shocking and outrageous behavior necessary for a recovery of damages. [Cits.]” Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992).

3. Uniform State Court Rule 6.6 provides, in relevant part, that “[n]o trial shall be continued by reason of the delayed filing of a motion for summary judgment.” In the instant case, there was no continuance of the trial of appellant’s case. Instead, the trial was obviated by the grant of appellees’ motion for summary judgment, which was filed more than 30 days before the scheduled date of trial. Accordingly, appellant’s contention that Rule 6.6 was violated is without merit.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1608.
    WILENSKY v. BLALOCK.
    (424 SE2d 26)
   Carley, Presiding Judge.

A jury verdict against appellant-defendant was returned in favor of appellee-plaintiff and, on February 15, 1990, the trial court entered judgment thereon. However, appellant moved for judgment n.o.v. and that motion was granted. Appellee appealed and this court reversed the grant of appellant’s motion for judgment n.o.v. Arford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991). On certiorari, the Supreme Court affirmed. Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992). On April 2, 1992, the judgment of this court reversing the grant of appellant’s motion for judgment n.o.v. was made the judgment of the trial court. The issue presented for resolution in the instant appeal is the date upon which post-judgment interest commences. Appellee urged, and the trial court held, that post-judgment interest runs from February 15, 1990, the date of the original judgment entered on the jury’s verdict. Appellant appeals, urging that post-judgment interest runs only from April 2, 1992, the date that the judgment of this court reversing the grant of appellant’s motion for judgment n.o.v. was made the judgment of the trial court.

“All judgments in this state shall bear interest upon the principal amount recovered. . . .” OCGA § 7-4-12. The judgment in appellee’s favor was entered on the jury’s verdict on February 15, 1990. If the trial court had correctly denied appellant’s motion for judgment n.o.v., interest on appellee’s judgment would clearly run from the date of its entry. Accordingly, the issue for resolution is whether appellee is to be deprived of interest running from that date because he was required to secure an appellate reversal of the trial court’s erroneous ruling.

The erroneous grant of appellant’s motion for judgment n.o.v. was a final order for appeal purposes, but it never became final for res judicata purposes. This court reversed the trial court and the Supreme Court affirmed this court. “The legal effect of the reversal of a judgment on appeal is to nullify the effect of such judgment in all its aspects and place the parties in the same position in which they were before such judgment. [Cits.]” McKay v. McKay, 93 Ga. App. 42 (3) (90 SE2d 627) (1955). See also Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3, 4 (6a) (375 SE2d 848) (1989). Accordingly, the legal effect of the appellate reversal of the erroneous grant of appellant’s motion for judgment n.o.v. was to nullify the effect of that erroneous order in all its aspects and to place appellee and appellant in the same position in which they were before that erroneous order was entered. Before that erroneous order was entered, appellee was the creditor and appellant was the debtor on a judgment that had been entered on February 15, 1990. Thus, pending appeal, the trial court’s erroneous order was a mere impediment to the enforceability of the judgment entered on the jury’s verdict. On appeal, that impediment was removed. It follows that interest runs from February 15, 1990, the date that judgment was properly entered on the jury’s verdict. See Wilcher v. Hamilton, 15 Ga. 435, 441 (4) (1854).

Judgment affirmed.

Pope and Johnson, JJ., concur.

Decided October 2, 1992

Reconsideration denied October 16, 1992

Weinstock & Scavo, Michael Weinstock, Alan R. Heath, for appellant.

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, for appellee.


author: Andrews, Judge.

text:
    A92A1276.
    In the Interest of J. E. H., a child
    (424 SE2d 61)
   Andrews, Judge.

In the first appearance of this case, we determined that a disposition had been made by the Juvenile Court without the benefit of a disposition hearing, and remanded the case for a hearing. In the Interest of J. E. H., 202 Ga. App. 29 (413 SE2d 227) (1991). J. E. H. now appeals from the dispositional order entered in the Juvenile Court pursuant to the hearing, claiming that it impermissibly increased punishment by ordering additional probation, a special condition of which included 40 hours of community service, and driver’s license suspension until 18 years of age. Appellant contends these increases violate the Fifth Amendment prohibition against double jeopardy. See Hudson v. State, 248 Ga. 397, 398 (283 SE2d 271) (1981).

The record indicates that prior to the docketing of this appeal, J. E. H. moved for and was granted supersedeas staying enforcement of the disposition order pending appeal. In the order granting supersedeas, however, the Juvenile Court recited that J. E. H. has attained the age of 18 years, and ordered the driver’s license returned. Furthermore, recognizing that the purposes of the disposition order had been accomplished, the Court ordered J. E. H. relieved from the additional conditions of probation at issue. See OCGA § 15-11-41 (h), (i); Uniform Juvenile Court Rule 15.3.

“Under the Appellate Practice Act, the dismissal of an appeal is mandatory . . . [w]here the questions presented have become moot. A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.” (Citations and punctuation omitted.) Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241) (1986); OCGA § 5-6-48. The provisions of the disposition order at issue having been terminated by the Court, the questions presented by this appeal are moot notwithstanding the supersedeas. The case is not one which is nevertheless appealable because the error, if any, is capable of repetition and yet evades review. Id. at 433-434.

Appeal dismissed.

Birdsong, P. J., and Beasley, J., concur.

Decided October 16, 1992.

Robert L. Ferguson, for appellant.

W. Fletcher Sams, District Attorney, W. Hawley Stevens, Assistant District Attorney, for appellee.


text:
    A92A1288, A92A1289.
    SMITH v. THE STATE (two cases).
    (424 SE2d 60)
   Andrews, Judge.

Smith entered her plea of guilty to possession of cocaine, contingent upon our review of the court’s denial of her motion to suppress below.

Case No. A92A1289

1. Upon the denial of the motion to suppress by order of December 5, 1991, the court issued a certificate of immediate review and Smith filed her application for interlocutory review with this court. That application was denied by this court’s order of January 6, 1992.

Case No. A92A1289 is a direct appeal from the order denying the motion to suppress. That order not being final, the only mechanism for interlocutory appeal was that followed and denied by this court. Therefore, this appeal is dismissed.

Case No. A92A1288

2. This appeal from the final judgment and conviction enumerates as error the denial of the motion to suppress and will be considered.

Smith has enumerated three errors regarding the motion to suppress, alleging the court erred because: 1) the “warrant was changed or amended by a magistrate other than the magistrate issuing the warrant”; 2) “the warrant [did] not particularly describe the place or person, or both, to be searched and things to be seized”; and 3) “the magistrate made a determination of probable cause from the facts contained in the affidavit which were false at the time the warrant was issued.”

The motion to suppress filed below, however, does not raise the ground alleged in the first enumeration and it presents nothing for our review. Harris v. State, 168 Ga. App. 159 (308 SE2d 406) (1983).

The motion, in paragraphs 11 and 12, does adequately raise the issues in the second and third enumerations, because there it is contended that the search was “illegally executed on the unit 1206 ... as it had been amended from unit 1204 by the officer executing it and was therefore invalid . . and was “illegally executed on unit 1206 instead of 1204 ... as it had been amended by the officer executing it, more than 4 hours after its issuance which was more than adequate time to obtain another search warrant, pursuant to Delaney v. State, 135 Ga. App. 612 (218 SE2d 318) (1975).”

The premises to be searched were originally identified in typewriting as “2242 Walton Lane # 1204, City of Atlanta, DeKalb County, Georgia.” As explained by Detective McCord during the hearing on the motion, an undercover buy using a confidential informant had been made and was the factual premise upon which the warrant was sought. Apartment # 1204,was provided by the informant to the officers as the correct number. The officers had watched the informant go in and out of what was really apartment # 1206, next door to # 1204, but relied on the informant for the number. After Magistrate Malicki issued the warrant and just prior to executing it, the officers made another controlled buy from the same apartment and realized that it was, in fact, # 1206. Officer McCord then returned to the court and attempted to locate Judge Malicki, but was unsuccessful. He did locate Judge Mickle and explained the situation to him. Judge Mickle looked over the affidavit and Detective McCord swore to the truth of the contents. Judge Mickle instructed the officer to change the numeric identification of the apartment in his presence. The change was made, dated, and initialed by both the officer and Judge Mickle.

The efforts of the officer in correcting the numerical designation were reasonable and proper. Oliver v. State, 161 Ga. App. 567, 568 (1a) (287 SE2d 698) (1982); State v. Sanders, 155 Ga. App. 274, 275 (270 SE2d 850) (1980).

To the extent that intentional falsity was alleged as a basis for invalidating the search warrant, there was no showing of anything other than an unintentional mistake. This ground is without merit. Ledbetter v. State, 190 Ga. App. 843 (1) (380 SE2d 313) (1989); Wells v. State, 180 Ga. App. 133 (1) (348 SE2d 681) (1986).

3. Consideration of the fourth enumeration is made unnecessary by the conclusion reached in Division 2.

Judgment affirmed in Case No. A92A1288. Appeal dismissed in Case No. A92A1289.

Birdsong, P. J., and Beasley, J., concur.

Decided October 16, 1992.

Jacquelyn F. Luther, for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan III, Jeffrey H. Brickman, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

       Smith was sentenced under the provisions of the First Offender Statute, OCGA § 42-8-64, which is a final, appealable order or judgment. Littlejohn v. State, 185 Ga. App. 31 (363 SE2d 327) (1987).


text:
    A92A1363.
    HILL v. McGARITY et al.
    (424 SE2d 62)
   Sognier, Chief Judge.

In 1981, Thomas Hill entered into a contract to purchase real estate owned by Arch McGarity and 12 others as tenants in common. The other owners executed a power of attorney authorizing McGarity to sign the sales contract on their behalf. The sale failed to close, and Hill instituted this action in 1982 alleging the defendants had breached the sales contract and seeking to recover approximately $3,000 in expenses he had incurred for a survey and title examination in attempting to perform the contract, as well as attorney fees. Service was perfected only on McGarity and one other defendant. These two defendants moved for summary judgment, which was granted, and this court reversed that judgment in a prior appeal. Hill v. McGarity, 179 Ga. App. 788 (347 SE2d 679) (1986). In 1991, the two defendants who had been served filed motions to dismiss for failure to timely prosecute, which were granted by the trial court. Hill appeals.

The motions to dismiss were made on the ground that appellant had failed to serve 12 of the defendants in the action; that the running of the statute of limitation barred appellant’s claim against the unserved parties; that they were indispensable parties; and that as a result the action could not be maintained against appellees. Three of the unserved defendants filed affidavits in which they averred that they had not been served; had not waived their right to service or avoided service; and had resided openly and notoriously for more than ten years in the county in which suit had been brought. It is undisputed that the applicable statute of limitation is six years. OCGA § 9-3-24. The trial court found that the unserved defendants were indispensable parties pursuant to OCGA § 9-11-19, and granted the motions to dismiss because appellant had failed “to act reasonably and diligently in attempting service.”

Appellant contends the trial court erred by granting appellees’ motions to dismiss. Appellant argues, apparently based on an estoppel theory, that appellees’ failure to raise the question of joinder of the other landowners earlier should bar them from raising it after the statute of limitation had run. See generally Rigdon v. Walker Sales &c., 161 Ga. App. 459, 462-463 (288 SE2d 711) (1982). We note that unlike the usual situation in which the question of indispensable parties arises, e.g., Guhl v. Tuggle, 242 Ga. 412-414 (1) (249 SE2d 219) (1978), the parties in issue here were named in the original action. The lack of diligence found by the trial court was appellant’s failure to effect service of process on the remaining named defendants. While lack of service is an affirmative defense that is waived unless raised at the time for the first responsive pleading, OCGA § 9-11-12 (h) (1), we question whether appellees, the served defendants, had standing to raise the defense of lack of service on other parties. Moreover, the fact that the parties have allowed this action to languish in the trial court for over ten years is not easily condoned, particularly in view of the relatively modest sum involved. Nonetheless, it is undisputed that 12 of the named defendants were not served, and thus no valid action exists against them, Larsen v. Larsen, 224 Ga. 112-113 (3) (160 SE2d 383) (1968), and a defense of failure to join an indispensable party may be asserted at any time up to and including a trial on the merits. OCGA § 9-11-12 (h) (2); Rigdon, supra. Hence, appellees were not estopped to move for dismissal based on appellant’s failure to join indispensable parties.

The trial court found that “[e]ach of the parties’ relationship to the property and to each other is that of an undivided common interest. . . . Additionally, any right that [appellant] has arises under the contract.” Thus, as co-obligors under the real estate sales contract, the unserved defendants are indispensable parties. Wall v. Wall, 176 Ga. 757, 759 (168 SE 893) (1933); Turner Outdoor Advertising v. Old South Corp., 185 Ga. App. 582, 583 (365 SE2d 149) (1988). We agree with the trial court’s determination that the unserved defendants are indispensable parties'. We do not, however, agree with the trial court that this determination necessarily mandated dismissal of the action.

“Ordinarily, it is error to dismiss a petition or complaint for failure to join an indispensable party. Such a party should be joined in the action ... so the case can be considered on its merits.” Dismuke v. Stynchcombe, 237 Ga. 420, 421 (4) (228 SE2d 817) (1976). A reasonable time before dismissal must be allowed for joinder of the indispensable parties, Henry v. Moister, 155 Ga. App. 462, 463 (1) (271 SE2d 40) (1980), unless that would be fruitless, as in cases where the court lacks jurisdiction. Dismuke, supra. Nothing in the record indicates that the trial court lacks jurisdiction over the remaining landowners, that they would not be amenable to service of process, or that they cannot be joined for some other reason. Compare id. Although they may be entitled to raise the affirmative defense of the statute of limitation in the action against them, that defense would be waived if, once they are served, they do not assert it affirmatively in responsive pleadings. Wood v. Wood, 239 Ga. 120, 121 (6) (236 SE2d 68) (1977).

Decided October 19, 1992.

J. Wayne Moulton, Terry N. Massey, for appellant.

Arch W. McGarity, pro se.

R. Nathan Langford, Jr., Thomas D. Carr, for appellees.

Accordingly, we hold that the trial court erred by granting appellees’ motions to dismiss based on the running of the statute of limitation against the indispensable parties. The ruling of the trial court granting appellees’ motions to dismiss is reversed, and the case remanded to the trial court with direction that appellant be allowed a reasonable time to join the indispensable parties.

Judgment reversed and remanded with direction.

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


text:
    A92A1257.
    KARVONEN v. THE STATE.
    (424 SE2d 47)
   Johnson, Judge.

James Karvonen appeals from his conviction of three counts of child molestation and the denial of his motion for a new trial.

1. Karvonen contends that the trial court erred in denying his motion for a new trial on the basis of newly-discovered evidence. This newly-discovered evidence consists of the post-trial declaration of the victim, Karvonen’s ten-year-old nephew, that he lied when he testified that Karvonen had molested him. “The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” (Citation and punctuation omitted.) Cato v. State, 195 Ga. App. 619, 620 (2) (394 SE2d 413) (1990); Richey v. State, 132 Ga. App. 188 (207 SE2d 672) (1974). Accordingly, the court did not err in denying Karvonen’s motion for a new trial on this ground.

2. Karvonen claims that the trial court erred in denying his motion for a new trial because he was denied effective assistance of counsel. This claim is without merit.

“There are two components to a claim for ineffective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance. Both components must be shown before we can find that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation and punctuation omitted.) Whitner v. State, 202 Ga. App. 608 (415 SE2d 52) (1992). Here, Karvonen claims that his trial counsel was ineffective because he failed to interview the two alleged victims prior to trial. At the hearing on the motion for new trial, however, the attorney testified that he attempted to interview the alleged victims, but was denied access to the children by their legal guardian. Further, the trial transcript shows that the attorney thoroughly cross-examined both of the alleged victims. In fact, one of the children testified on cross-examination that he did not remember Karvonen ever molesting him and Karvonen was acquitted as to all charges relating to that child. Karvonen has failed to show either of the components required to support a claim for ineffective assistance of counsel.

Karvonen also claims that his attorney was ineffective because he failed to call a medical expert as a defense witness. “The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992).

Karvonen further complains that his attorney was inadequate because he failed to object when the State’s expert witness, the pediatrician who examined the victim, testified as to the ultimate issue in the case. The expert, however, did not testify as to the ultimate issue in the case. He testified that in his opinion the child had been molested, but he made no comment as to whether Karvonen was the molester. Thus, the expert’s opinion testimony was not objectionable. OCGA § 24-9-67.

“The burden is on the defendant to establish his claim of ineffective assistance of counsel. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Cauley, supra at 301. The trial court’s finding in this case was not clearly erroneous and therefore it must be upheld.

3. In his final enumeration, Karvonen alleges that the trial court erred in refusing to allow him to introduce evidence to show that someone else committed the molestations, in failing to explain its ruling and in failing to allow him to make a proffer of evidence. These allegations are unfounded.

Karvonen attempted to question a State’s witness as to whether he was aware that another man babysat the victim prior to the molestations. The court sustained the State’s objection to the question on the ground that such testimony was not relevant without some evidence actually linking the other person to the offenses for which Karvonen was on trial. Karvonen made no such showing. “The trial court initially determines admissibility of evidence and has great discretion in determining relevancy. And, in the absence of abuse of such discretion, an appellate court will not interfere.” (Citations and punctuation omitted.) Masters v. State, 186 Ga. App. 795, 798 (4) (368 SE2d 557) (1988). We find that the trial court did not abuse its discretion in sustaining the State’s objection. See Daniel v. State, 196 Ga. App. 160 (1) (395 SE2d 638) (1990). Even if the court had erred, no reversal is required because Karvonen has shown no harm. Butts v. State, 198 Ga. App. 368 (4) (401 SE2d 763) (1991). Karvonen was allowed to introduce evidence that another man babysat the victim through four other witnesses and his attorney was allowed to comment upon this evidence during closing arguments.

Decided October 8, 1992

Reconsideration denied October 20, 1992

Robert L. Waller III, Leslie J. Cardin, for appellant.

Thomas C. Lawler III, District Attorney, Dan W. Mayfield, Debra K. Turner, Assistant District Attorneys, for appellee.

Karvonen’s allegations that the trial court did not explain its reasons for sustaining the State’s objection and did not allow Karvonen to make an offer of proof are not supported by the record. “This court has reiterated on numerous occasions that error must be shown affirmatively by the record and not by mere recitations in a brief.” (Citations and punctuation omitted.) Collins v. State, 201 Ga. App. 433, 435 (4) (411 SE2d 341) (1991). For the foregoing reasons, Karvonen’s final enumeration of error is without merit.

Judgment affirmed.

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


text:
    A92A1371.
    LONGABAUGH v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (424 SE2d 49)
   Johnson, Judge.

Melissa Otis, her two children and her husband filed a complaint against John Henry Longabaugh claiming personal injury, loss of consortium and intentional infliction of emotional distress arising out of an automobile collision. The claims for intentional infliction of emotional distress are based on Melissa Otis’ assertion that after the collision Longabaugh was abusive, threatening, and used racial slurs toward her in the presence of her children. Otis testified at her deposition that after the accident Longabaugh, amongst other things, said to his father, “We are going to get this nigger bitch.”

Decided October 9, 1992

Action on policy. Gwinnett Superior Court. Before Judge Stark.

William L. Skinner, for appellant.

After the Otises filed their complaint, State Farm Mutual Automobile Insurance Company filed a declaratory judgment action against Longabaugh and the Otises solely to determine if an insurance policy it had issued to Longabaugh covered the Otises’ claims for intentional infliction of emotional distress. The liability coverage section of the policy provides that State Farm will “pay damages which an insured becomes legally liable to pay because of bodily injury to others, and damage to or destruction of property including loss of its use, caused by accident resulting from the ownership maintenance or use of [the insured’s] car.” Based on this language in the policy, State Farm filed a motion for summary judgment. The trial court granted State Farm’s motion, finding that the policy does not cover the claims for intentional infliction of emotional distress. Longabaugh appeals.

1. Longabaugh contends that any emotional distress suffered by Otis and her two children because of his alleged abusive and threatening conduct after the accident is covered by his insurance policy. This position is wholly without merit.

The relevant inquiry is whether the Otises’ alleged emotional distress was caused by the use of Longabaugh’s automobile so as to trigger the liability coverage section of Longabaugh’s policy with State Farm. Rustin v. State Farm Mut. Auto. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985). It is clear that the car was not used for any purpose regarding the alleged injuries within the meaning of the policy. The Otises’ alleged emotional distress did not result from the ownership, maintenance or use of the vehicle; rather, it resulted from the alleged abusive conduct and use of racial slurs by Longabaugh after the accident. Accordingly, the trial court did not err in granting summary judgment to State Farm.

2. “Based upon our review of the record in the case and the briefs filed in this court, we find no basis upon which a reversal of the trial court’s judgment could reasonably have been anticipated. Acting pursuant to Court of Appeals Rule 26 (b), we accordingly assess against the appellant a penalty in the amount of $500 for filing a frivolous appeal. [Cit.]” Smitherman v. Mary House Ministries, 200 Ga. App. 116, 118 (3) (407 SE2d 58) (1991).

Judgment affirmed with direction.

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

Greer, Klosik & Daugherty, Robert J. McCune, for appellee.


text:
    A92A1388.
    CRAIG v. THE STATE.
    (424 SE2d 902)
    Decided October 5, 1992
    Reconsideration denied October 20, 1992.

      Ronnie K. Batchelor, for appellant.

      Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.
   Johnson, Judge.

James A. Craig appeals from his conviction of child molestation and the denial of his motion for a new trial.

1. In his first enumeration of error, Craig contends that the trial court erroneously charged the jury on the definition of the offense of child molestation. The record reveals that the court asked Craig if he had any objections to the charge as given. Craig stated that he had no objections and he did not reserve the right to make any objections at a later time. “Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the right to make such objections on motion for new trial or on appeal or waive any such objections.” (Citation and punctuation omitted.) Seidel v. State, 197 Ga. App. 14, 15 (2) (397 SE2d 480) (1990). Due to Craig’s failure to object or reserve objections to the charge upon the trial court’s inquiry, such objections were waived and cannot be considered on appeal.

2. Craig’s remaining three enumerations of error are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2) because they are not supported by argument. In his brief, Craig has set forth purported arguments in support of the remaining enumerations. Those arguments, however, are insufficient because they simply rephrase the enumerated errors. “Insofar as the enumerations themselves contain argument, it is conclusory and insufficient to raise justiciable issues.” Hunter v. State, 201 Ga. App. 9 (2), 10 (410 SE2d 204) (1991).

Judgment affirmed.

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