text:
    A91A0595.
    THE STATE v. PITTS.
    (405 SE2d 115)
   McMurray, Presiding Judge.

Defendant was accused of driving under the influence of alcohol (Count 1) and carrying a concealed weapon (Count 2). He entered a plea of nolo contendere on each count.

The judge sentenced defendant to confinement for a period of 12 months (probated) and ordered defendant to pay a fine of $500. In probating defendant’s sentence, the judge set forth various “terms of sentence.” One such term reads: “As Defendant’s plea of nolo con-tendere to Count 2 does not constitute a conviction as contemplated by law, the provisions of O.C.G.A. § 17-5-51 do not apply, and said weapon shall be returned to the Defendant rather than forfeited pursuant to O.C.G.A. § 17-5-51.”

The State appeals, contending the “term of sentence” that orders the weapon to be returned to defendant is null and void. Held:

1. “[T]his court has held that void sentences are appealable by the State. State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978); State v. Shuman, 161 Ga. App. 304, 306 (6) (287 SE2d 757) (1982). Thus, we will review this matter in light of the State’s contention that the trial court’s action in [ordering the weapon to be returned to defendant] is void.” State v. Johnson, 183 Ga. App. 236 (358 SE2d 840).

2. OCGA § 17-5-51 provides, in pertinent part: “Any device which is used as a weapon in the commission of any crime against any person or any attempt to commit any crime against any person and any weapon for which a person has been convicted of the crime of carrying a concealed weapon, as provided for by Code Section 16-11-126, are declared to be contraband and are forfeited.” Was defendant “convicted” of the crime of carrying a concealed weapon?

“In Wright v. State, 75 Ga. App. 764 (1) (44 SE2d 569) it was held that a plea of nolo contendere ‘differs from a plea of guilty only in that it cannot be used against the defendant in any other court or proceedings as an admission of guilt, or otherwise, or for any purpose, and it is not a plea of guilty for the purpose of effecting civil disqualifications.’ In other words, the plea itself cannot be used in another case as an admission of guilt. Nevertheless, in Nelson v. State, 87 Ga. App. 644, 648 (75 SE2d 39) a defendant sentenced under such a plea was held to have been ‘adjudged guilty and convicted.’ This accords with general law that a sentence based on a plea of nolo contendere is a conviction [cits.] but that the plea is technical only and does not constitute an admission of guilt in any other case [cits.], not even in a civil case involving the same act. [Cit.]” (Emphasis supplied.) Windsor Forest v. Rocker, 121 Ga. App. 773 (2) (175 SE2d 65).

Decided April 1, 1991.

Ralph T. Bowden, Jr., Solicitor, Cassandra J. Cook, W. Cliff Howard, Assistant Solicitors, for appellant.

Morgan W. Scott, for appellee.

The sentence based on defendant’s plea of nolo contendere constituted a conviction for carrying a concealed weapon. See Windsor Forest v. Rocker, 121 Ga. App. 773 (2), supra. See also George Weaver’s, The Effect in Georgia of a Plea of Nolo Contendere Entered in a Georgia Court, 13 Ga. L. Rev. 723, 742 (1979). It follows that the weapon was contraband and forfeited, OCGA § 17-5-51, and that the “term of sentence” ordering the weapon to be returned to defendant was a nullity. Cf. Cannington v. State, 154 Ga. App. 557 (2) (269 SE2d 62).

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A0668.
    DAY v. BURNETT.
    (405 SE2d 316)
   Beasley, Judge.

Plaintiff Day appeals the trial court’s dismissal of her personal property damage suit against defendant Burnett on the basis that it was outside the four-year statute of limitation, see OCGA § 9-3-31, as well as the court’s grant of defendant’s motion to strike the prayer for punitive damages.

The parties were involved in an automobile collision on December 5, 1984. Day filed a personal injury action against Burnett but that action was subsequently dismissed on the basis that Day failed to exercise due diligence in attempting to perfect timely service on Burnett. See Day v. Burnett, 189 Ga. App. 905 (377 SE2d 734) (1989). Day filed the present action on December 5, 1988, seeking property damage to her automobile and punitive damages. Burnett was served on December 12.

In dismissing the personalty action, the trial court expressly found that the pleadings and record disclosed that the complaint was filed four years and one day after the cause of action accrued. It further determined that service of process did not occur until seven days following filing of the complaint and that plaintiff Day had raised no issue which would toll the running of the statute of limitation nor had there been any showing of diligence regarding service of process.

1. Appellant Day contends that the trial court erred in computing both the day on which the statute of limitation ran and the last day on which service could have been perfected in a timely fashion.

OCGA §§ 1-3-1 (D) (3) and 9-11-4 (c) control.

Filing of the Complaint. OCGA § 1-3-1 (D) (3) as amended, effective July 1, 1985, applies to this case. See Hollingsworth v. Hubbard, 184 Ga. App. 121 (361 SE2d 12) (1987). It states in pertinent part: “Computation of Time. Except as otherwise provided by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty. . . . When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”

Applying the statute as amended, the complaint was timely filed on Monday, the fourth anniversary of the collision giving rise to the litigation. See Hollingsworth, supra; OCGA § 9-3-31.

Service of the Complaint. “ ‘A civil action is commenced by filing a complaint with the court.’ OCGA § 9-11-3. ‘The statute of limitation is tolled by the commencement of a civil action at law.’ OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. . . .” Land v. Casteel, 195 Ga. App. 455, 456 (393 SE2d 710) (1990). If service is within the five days, even though the statute of limitation runs between the date of filing suit and the date of service, the service will relate back to the time of filing so as to avoid the limitation. See Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975). No question arises as to a plaintiff’s reasonable diligence in perfecting service of process unless service is made outside the five-day grace period. See Land, supra.

Service on December 12, exactly one week after suit was filed, was within the prescribed five-day period, albeit after the statute of limitation would have run. Service related back and was timely, obviating any inquiry into plaintiff’s diligence.

Decided April 1, 1991.

Charles E. Muskett, for appellant.

Beck, Owen & Murray, William M. Dallas III, Albert B. Wallace, for appellee.

The suit was not time-barred.

2. Appellant also contends that the court erred in striking her prayer for punitive damages.

The basis of defendant’s “motion to strike” or alternatively for judgment on the pleadings was her assertion that the complaint failed to allege wilful or wanton negligence so as to authorize punitive damages.

The complaint alleged that defendant was negligent because, for one thing, she was driving under the influence of alcohol. Evidence that such driving caused a plaintiff’s injuries is evidence of wilful misconduct or wantonness authorizing imposition of punitive damages. See Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985). Plaintiff also alleged that defendant was negligent in following too closely and traveling too fast for conditions and in failing to maintain a proper lookout for other traffic. Evidence of such traffic violations, including illegal and excessive vehicle speed, would likewise be sufficient to allow a jury to award punitive damages. See Harrison v. S & B Trucking, 179 Ga. App. 291, 292 (1) (346 SE2d 101) (1986).

The complaint clearly alleged conduct amounting to more than mere negligence and such as would, if proved by plaintiff, permit punitive damages. The prayer for them was erroneously stricken.

Judgment reversed.

Banke, P. J., and Carley, J., concur.

       The essence of the motion was not one to strike, see OCGA § 9-11-12 (f), but rather one for judgment on the pleadings, see OCGA § 9-11-12 (c).


text:
    A91A0681.
    KING et al. v. KING.
    (405 SE2d 319)
   Beasley, Judge.

Ralph King died testate, leaving his son, appellee Larry King, and his two daughters, appellants Brenda Joy Freeman and Glenda King, as the primary beneficiaries of his will. The testator’s real property, consisting of his home and accompanying acreage, was to be “divided in equal portions, or sold in one piece but not for less value commensurate with prevailing prices of comparable land plots in this vicinity. And monies divided to three children.”

After Larry King was named executor, his sisters petitioned to have him removed. Although denying the petition, the probate court questioned the validity of a contract for the sale of the house entered into among the parties, because the will did not specifically grant the executor the authority to sell any property without leave of court. Noting a great disparity between two appraisals, the probate court ordered the executor to obtain an additional appraisal and enter into a contract for sale of the property for its market value. Direction was given that “due consideration should be given the beneficiary, to wit, Brenda Joy King Freeman, to purchase said real property due to the fact that she has moved into the property and caused repairs to be made to same; should she not be able to purchase said property, she shall be reimbursed by the executor for all out-of-pocket expenses which can be verified.”

A subsequent order stated: “It appearing that the parties agree that one of the heirs, Joy Freeman, will purchase the homeplace and 4 acres more or less for the sum of $65,000.00. It appearing that the heir, Joy Freeman had improved the property in the sum of approximately $13,663.35. The executor is authorized to sell to the heir, Joy Freeman, and convey to her or her designee the real estate of testator.”

A hearing for a final settlement transpired pursuant to OCGA § 53-7-163. Testimony showed that the subject property had been conveyed to Glenda King rather than to Brenda Joy Freeman. Glenda acknowledged that contrary to the earlier court order, the property was sold to her rather than Brenda, but Brenda was living with her in the house. Counsel, who represented both sisters at trial, confirmed this and stated to the court that Glenda had purchased the house in trust for her sister. Brenda did not testify.

Brenda, who is represented by new counsel on appeal, contends that she never assigned her right to purchase the property to Glenda. She contends that the sale to her sister was in legal effect an invalid private sale because the probate court never granted the executor leave to sell to Glenda, as required by Code law. She also contends that she has neither been reimbursed for her improvements nor been disbursed her share of the sale proceeds.

The executor argues that Brenda did agree to sell the property to Glenda and that she is precluded from raising this issue on appeal since it was not raised at trial. He also contends that the Code sections concerning a private sale of real property by the executor are not applicable where, as here, the beneficiaries of a will, in termination of a family controversy, have entered into an agreement for the distribution or division of property devised to them, in lieu of the manner provided by the will.

1. Notations in the closing statement of the sale to Glenda indicate that Brenda was given credit for her improvements to the property and for her share of the proceeds of the sale, although such funds may not have been actually disbursed to her.

2. If it becomes necessary to sell real property to pay debts of an estate or to make distributions other than in kind, the administrator or executor is required to petition the probate court for leave to sell the property at public or private sale. See OCGA §§ 53-8-23; 53-8-34; 53-8-36; Duncan v. Baggett, 247 Ga. 609, 610-611 (1) (277 SE2d 733) (1981); Lowell v. Bouchillon, 246 Ga. 357 (2) (271 SE2d 498) (1980). Notice of the petition for a public sale must be published in the newspaper in which county advertisements are published. OCGA § 53-8-23. The method of private sale is generally the same as that prescribed for the sale of property by guardians. OCGA § 53-8-34. If the sale is conducted pursuant to a power of sale in a will, leave of court is not required, although statutory requirements for the sale may become applicable to the extent that the power of sale fails to specify the manner of its execution. See Vickers v. Vickers, 234 Ga. 849 (218 SE2d 565) (1975); Turner v. Baird, 159 Ga. 277 (125 SE 475) (1924); OCGA § 23-2-115; 2 Redfearn, Wills, Ga., p. 347, § 306 (5th ed.).

Where the parties have agreed among themselves to a division of the property, a public or private sale in accordance with the statutory directives is not required. See Copelan v. Kimbrough, 149 Ga. 683, 689-692 (5) (102 SE 162) (1919); McCook v. Pond, 72 Ga. 150 (1883); compare Veale v. Vandiver, 167 Ga. App. 865 (307 SE2d 749) (1983); compare also Guthrie v. Moran, 192 Ga. 607 (1) (15 SE2d 890) (1941). Consequently, the sale to Glenda need not have been conducted as a public sale or private sale within the scope of the foregoing Code sections.

3. Nonetheless, the probate court authorized a sale of the property to Brenda “or her designee” for the sum of $65,000 based on an agreement of the parties.

“ ‘It is well settled that agreements among heirs at law to distribute or divide property devised under a will, in lieu of that manner provided by the will, are valid and enforceable.’ West v. Downer, 218 Ga. 235, 241 [(5)] (127 SE2d 359) (1962). Such agreements have as their consideration the termination of family controversies. Id. The | agreements are supported by the public policy of furthering family J harmony and avoiding lengthy litigation. See 42 ALR2d 1312 (1955). | The agreements are in essence solely contractual and governed by the rules applicable to all contracts. West, supra.” Beckworth v. Beckworth, 255 Ga. 241, 243 (1a) (336 SE2d 782) (1985).

Although there is no requirement that such agreements be approved by the court, the parties may submit them for approval so as to bind the parties and serve as res judicata. Beckworth, 255 Ga. at 243 (1b), supra; accord Gray v. Trust Co. of Ga., 211 Ga. 332 (85 SE2d 721) (1955).

Decided April 1, 1991.

George R. Moss, Richard J. Joseph, for appellants.

Donald F. Defoor, for appellee.

Glenda Sue King, pro se.

The probate court entered an order of final settlement, based on the representation by counsel that under the parties’ agreement, Brenda had agreed to have title to the property conveyed to Glenda as Brenda’s trustee. Consequently, the final order is subject to attack on the ground that the sale to Glenda was in breach of the parties’ agreement, unless Brenda is bound by counsel’s contrary statement to the probate court.

4. Where a client has authorized an attorney to represent him, the client is bound by the attorney’s settlement of the case and entry of judgment, unless the attorney’s action is in violation of express directions of the client which are known by the other party or his attorney, or is fraudulent or collusive. Petty v. Complete Auto Transit, 215 Ga. 66, 67 (1) (108 SE2d 697) (1959) and cits. Where the other party or his attorney lacks such knowledge, and the actions of counsel within his apparent authority lead to the entry of orders or judgments, they will not be set aside at the instance of the client, who must seek redress against his attorney. Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983); Cochran v. Eason, 227 Ga. 316, 318-319 (1) (180 SE2d 702) (1971); Perkerson v. Reams, 84 Ga. 298, 299 (10 SE 624) (1889). See OCGA § 15-19-5.

Brenda’s essential allegation is that counsel, with the knowledge of Glenda, obtained the order of final settlement by falsely stating that Brenda had designated Glenda as the authorized transferee of the property. If this is true, Brenda is not barred by counsel’s actions, and she is entitled to conveyance of the property to her. If the allegation is false, Glenda holds the property in trust for Brenda. Brenda is entitled to a hearing on this issue of fact.

The judgment is therefore vacated and the case remanded for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Banke, P. J., and Carley, J., concur.


text:
    A91A0316.
    GATLIN v. THE STATE.
    (405 SE2d 118)
   Beasley, Judge.

Defendant was convicted of three counts of armed robbery, OCGA § 16-8-41, and three counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106. His sole enumeration of error is that his convictions of armed robbery (count three) and possession of a firearm (count four) are not sustained by the evidence.

1. The State’s only witness with reference to these two counts was Helen Wood, the assistant manager of a Pac & Sack store in Thomasville. She testified that she knew defendant as a customer in the store and that he was in the store on May 20, 1990, and sought to purchase a Kist cola. As Ms. Wood opened the cash register to make change for his 50 cents, “he reached over with his left hand, grabbed three five-dollar bills out of my drawer.” She then related: “I said what the hell do you think you’re doing? He said this is a robbery. I said like hell it is. I jerked my money back out the man’s hand and he got a center piece of my five-dollar bill, that’s all he got. And I slammed my drawer shut, turned the key, throwed it in the floor. He then pulls the gun with his right hand out of his pocket and he said you don’t understand, this is a robbery, and put the gun up on my cash register at me.”

Ms. Wood described the gun and explained that she was afraid to reach for the key on the floor because defendant might misunderstand her action and shoot her. She testified: “So I said to myself I’ll just play it through. So ... he said you don’t understand, this is a robbery. I said you don’t understand, get the hell out of my store and don’t come back and I’ll call the law and I did.” Defendant left without any further incident.

Armed robbery is committed when a person, with intent to commit a theft, takes another’s property from the person or immediate presence of another by use of an offensive weapon. OCGA § 16-8-41. Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987), held the Code section “to encompass armed robbers who have concealed offensive weapons in their pockets or under wraps or other devices.” It added the caveat that “[s]ome physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.”

Initially defendant snatched the money, and his weapon was not used to obtain it. After the money had been retrieved by the witness, defendant sought to re-acquire it by use of a gun. The witness refused to yield to his threat and nothing of value was obtained by use of an offensive weapon.

The evidence might have shown attempted armed robbery or robbery. “ ‘The slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation.’ ... It is not required that the property taken be permanently appropriated.” James v. State, 232 Ga. 834, 835 (209 SE2d 176) (1974). The proof was insufficient to sustain a conviction for armed robbery because the weapon was not an ingredient; it did not figure until after the taking occurred. Hicks v. State, 232 Ga. 393, 402-403 (207 SE2d 30) (1974). Compare McKissic v. State, 178 Ga. App. 23 (1) (341 SE2d 903) (1986). The judgment entered on count three must be reversed.

Decided April 2, 1991.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

2. Defendant was charged with possession of a firearm during the commission of the crime of armed robbery, a felony. The evidence did not sustain armed robbery but, as pointed out, did show that defendant was in possession of a firearm while attempting to commit a felony. OCGA § 16-11-106 does not require undue specificity, but only that the crime be a felony falling within one of the categories set forth therein. Because defendant was charged with armed robbery, attempted armed robbery is an included offense even though he was not specifically charged with the criminal attempt. OCGA § 16-4-3. There was no fatal variance, see DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800, 801 (3) (221 SE2d 576) (1976), and the evidence sustained the conviction under count four.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A0637.
    PIERCE v. THE STATE.
    (405 SE2d 325)
   McMurray, Presiding Judge.

Defendant Pierce appeals his conviction of five felony offenses, three counts of armed robbery and two counts of possession of a firearm during the commission of a felony, as well as the misdemeanor offense of driving under the influence of alcohol. The jury returned verdicts of guilty but mentally ill on all of the felony offenses. Held:

1. Three of defendant’s enumerations of error relate to issues concerning the voluntariness of defendant’s ceasing to take certain medication. For 17 or more years prior to the occurrence of the offenses with which defendant is charged, he was under virtually continuous treatment for mental problems. Defendant had been diagnosed as a chronic paranoid schizophrenic and been placed on psychotropic medication. Several months prior to the dates of the offenses with which he is charged defendant ceased to take his medication. Such a decision to cease the medication is common among those who suffer defendant’s affliction and may be viewed as a symptom of the disease. While the court-appointed psychologist testified that due to the absence of the medication it was extremely likely that defendant was experiencing psychotic behavior at the time of the offenses, he opined that defendant did not meet the test for being insane.

Nonetheless, neither the disease nor the cessation of medication, whether viewed as having occurred voluntarily or involuntarily, amounts to a basis for an insanity defense where a defendant retains his ability to distinguish between right and wrong at the time of the crime and there is no delusional compulsion that overmastered defendant’s will to resist committing crime. Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124); Nelms v. State, 255 Ga. 473, 475 (2) (340 SE2d 1). It follows that the trial court did not err in curtailing the defendant’s cross-examination of the court-appointed psychologist, called to testify pursuant to OCGA § 17-7-130.1, since defendant’s queries concerning the “voluntariness” of defendant’s cessation of his medication were not relevant to the issues being tried. Nor did the trial court err in failing to give defendant’s requested charge on this issue. Furthermore, we find no merit in defendant’s contention that the trial court’s charge on the definition of “voluntary,” given in connection with a charge on the defense of intoxication, was not adjusted to the evidence.

2. The indictment also charged defendant in count six with the offense of possession of a firearm by a convicted felon. A bifurcated trial, as to count six, was directed so that evidence in this regard would be placed before the jury only after it had returned a verdict as to the other counts. During the first portion of the bifurcated procedure, a redacted copy of the indictment was prepared to be sent out with the jury. Prior to the redacted indictment being sent out with the jury the parties were provided an opportunity to examine it and state any objection. Defendant made no objection related to the charge of possession of a firearm by a convicted felon. After the redacted indictment was sent out with the jury and deliberations begun, the jury returned with a question which made it apparent that a reference to the offense of possession of a firearm by a convicted felon had not been masked out. While the trial court gave corrective instructions, defendant moved for a mistrial.

We hold that the defendant waived any objection to the redacted indictment which was not stated when requested by the trial court. The subsequent motion for mistrial was not timely. Thompson v. State, 258 Ga. 816, 817 (2) (375 SE2d 219); Nixon v. State, 255 Ga. 656, 658 (2a) (340 SE2d 7); McCounly v. State, 191 Ga. App. 266, 269 (5) (381 SE2d 552); Brooks v. State, 190 Ga. App. 430, 432 (2) (379 SE2d 228); Martin v. State, 189 Ga. App. 483, 491 (7) (376 SE2d 888).

Decided April 2, 1991.

Shaw, Maddox, Graham, Monk & Boling, C. Wade Monk II, Scott M. Smith, for appellant.

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

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0687.
    CONCEPT MANAGEMENT, LTD. et al. v. CARPENTER.
    (405 SE2d 119)
   McMurray, Presiding Judge.

J. Robert Carpenter sought confirmation of sale of real estate under a power of sale contained in a deed to secure debt executed by Concept Management, Ltd., a Georgia Limited Partnership, and Arthur M. DeFrancis, as general partner (debtors). The deed to secure debt was supported by a “wraparound” promissory note in the original principal amount of $753,200 and it encompassed an assembled parcel of real estate, formerly two parcels that are encumbered by separate security deeds executed in favor of Windsor Federal Savings & Loan Association (“Windsor Federal”). Carpenter’s deed to secure debt was subordinate to Windsor Federal’s security deeds, but Carpenter agreed to service the Windsor Federal debts so long as the debtors complied with the terms of the “wraparound” promissory note, i.e., paid the purchase money debt to Carpenter.

Carpenter foreclosed on the secured property when the debtors defaulted on the “wraparound” promissory note and he caused the property to be advertised for public sale. The property sold to Carpenter at public auction for $272,175.38. The trial court confirmed the sale and this appeal followed. Held:

1. The debtors contend the trial court erred in confirming the sale, arguing that the advertisement giving notice of the sale caused the property to sell for less than its fair market value. More specifically, the debtors argue that the advertisement was deficient because it failed “to state the relationship between the senior encumbrances and the two (2) parcels of land in that each parcel is secured by a separate Note and Deed to Secure Debt.” This contention is not supported by the record.

The advertisement for public sale described Carpenter’s deed to secure debt and the “Wraparound Promissory Note ... in the original principal amount of $753,200.00. . . .” The advertisement also provided, in pertinent part, that the property “will be sold subject to that certain Deed to Secure Debt held by Windsor Federal Savings and Loan Association, of Windsor, Connecticut recorded in Deed Book 6795, page 367, Fulton County, Georgia Records, and subject to that certain Deed to Secure Debt held by Windsor Federal Savings and Loan Association, of Windsor, Connecticut recorded in Deed Book 6795, page 372, Fulton County, Georgia Records. . . .” These provisions were more than sufficient to place potential bidders on notice of the financial encumbrances of the real property. In fact, a full examination of the advertisement shows that it fully complied with the requirement that “the advertisement. . . give a full and complete description of the property to be sold, making known the names of the plaintiff, the defendant, and any person who may be in the possession of the property.” OCGA § 9-13-140 (a). See Shingler v. Coastal Plain &c. Assn., 180 Ga. App. 539 (2), 540 (a) (349 SE2d 785). Further, according to the debtor’s notice of appeal, there was no transcript prepared of the confirmation hearing and thus there is no evidence in the record to support the debtors’ contention that the advertisement chilled the price on the sale of the real estate. See Oates v. Sea Island Bank, 172 Ga. App. 178 (2) (322 SE2d 291). Under these circumstances, we must assume that the evidence adduced at the confirmation hearing supported the trial court’s finding that there was “no evidence of irregularity of sale and ... no evidence of chilling of the bids for the Property.” See Oates v. Sea Island Bank, 172 Ga. App. 178 (1), supra. This enumeration is without merit.

2. Carpenter moves for a penalty to be imposed upon the debtors for frivolous appeal pursuant to Rule 26 (b) of the Rules of the Court of Appeals of the State of Georgia and argues that the appeal was prosecuted only to delay the “pursuit of the deficiency judgment.” We agree.

“[N]ot every irregularity or deficiency in the advertisement will void the sale. See Walker v. Northeast &c. Credit Assn., 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978). The issue to be decided by the trial court is whether the error contributed to chilling the price on the sale of the property or voiding the advertisement. Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712, 714 (244 SE2d 643) (1978).” Oates v. Sea Island Bank, 172 Ga. App. 178 (2), 179, supra.

Decided April 2, 1991.

Ronald S. Stevens, for appellants.

Alston & Bird, Linda K. Disantis, John I. Spangler III, for ap-pellee.

In the case sub judice, the debtors did not provide any evidence on appeal to support their sole contention that the sale was chilled as a result of the allegedly deficient advertisement. In fact, the debtors state in the notice of appeal that a transcript of the confirmation “trial” was not “taken down” and that it is unnecessary for the clerk of the superior court to include “a transcript of the trial. . .” on appeal. It is therefore impossible to review the trial court’s finding that there was “no evidence of irregularity of sale and ... no evidence of chilling of the bids for the Property.” Under these circumstances, we conclude that the debtors knew or should have known that the appeal was ill-founded. See Dependable Equip. &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 138 (4) (361 SE2d 23). Consequently, a penalty pursuant to Rule 26 (b) of this Court in the amount of $200 is assessed against the debtors. “We direct that the penalty so imposed be included in the remittitur transmitted to the trial court.” Lamb v. U. S. Sales Corp., 194 Ga. App. 333, 334 (3) (390 SE2d 440).

Judgment affirmed with direction.

Sognier, C. J., and Andrews, J., concur.

       The debts supporting the Windsor Federal security deeds were in the original principal amounts of $275,000 and $217,500.


text:
    A91A0706.
    HENDRIX v. THE STATE.
    (405 SE2d 121)
   McMurray, Presiding Judge.

In this case, the defendant was charged with two counts of murder, one count of aggravated assault, one count of carrying a concealed weapon and one count of carrying a pistol without a license. This appeal follows the denial of defendant’s motion for a new trial. Held:

1. In his first enumeration of error, defendant contends the trial court erred in refusing to give the following request to charge: “In considering defendant’s defense of self-defense, I charge you that you may consider any evidence, if any there be, introduced in this case as to the victims’ . . . general character and reputation; their reputation, if any, for being violent; their reputation, if any, for committing robberies; their reputation; if any, for carrying dangerous weapons; and their prior acts, if any, of violence against the defendant and against third parties (of which defendant had knowledge). ...”

Decided April 2, 1991.

John A. Pickens, Douglas B. Ammar, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Richard E. Hicks, Assistant District Attorneys, for appellee.

We find no error. The portion of the request to charge that pertains to prior acts of violence committed by the victims against third persons was an incorrect statement of the law. Hill v. State, 259 Ga. 655 (386 SE2d 133); Lolley v. State, 259 Ga. 605 (385 SE2d 285).

2. Defendant presented evidence of self-defense. In his second enumeration of error, he contends the trial court erred in refusing to permit him to testify about a specific act of violence which the victims committed against a third party and of which he had personal knowledge. This contention is without merit in light of Hill v. State, 259 Ga. 655, supra; Lolley v. State, 259 Ga. 605, supra.

3. The prosecution’s characterization of defendant during closing argument as an “executioner” did not present grounds for reversal. The characterization was supported by the State’s version of the evidence. See Lee v. State, 186 Ga. App. 332, 334 (2) (367 SE2d 115) (characterization of defendant as a “bandit”). Besides, in view of defendant’s acquittal on the murder counts, it cannot be said that the prosecution’s characterization harmed defendant.

Nor can it be said that a mistrial should have been granted when the prosecution argued that defendant should not be permitted to go back on the street after killing two people. “ ‘A solicitor general may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard. See 23A CJS 202, Criminal Law, § 1107; 53 AmJur 371, Trial, § 465.’ Terhune v. State, 117 Ga. App. 59, 60 (159 SE2d 291).” Chambers v. State, 134 Ga. App. 53, 54 (4) (213 SE2d 158). Accord Lumpkin v. State, 136 Ga. App. 828, 829 (3) (222 SE2d 669).

Defendant’s third enumeration of error is without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0306.
    SHELTON v. THE STATE.
    (405 SE2d 123)
   Banke, Presiding Judge.

The appellant was convicted of rape, statutory rape, incest, and child molestation. The incest conviction was, however, merged with the statutory rape conviction for sentencing. In a prior appearance of the case before this court, we held that the trial court erred in excluding certain purported evidence that the victim had previously falsely accused another person of raping her, without having first made a threshold determination that no reasonable probability of falsity existed. See Shelton v. State, 196 Ga. App. 163 (395 SE2d 618) (1990). See generally Smith v. State, 259 Ga. 135 (1) (377 SE2d 158) (1989). However, we held that the error could be cured by a post-trial hearing on this issue and accordingly remanded the case to the trial court for such a hearing. Based on the evidence introduced at that hearing, the trial court determined that no reasonable probability of falsity existed and adhered to its original ruling excluding the evidence. The case is now before us on appeal from that ruling. Held:

The appellant called three witnesses to testify at the hearing. The first was Rondell Tinker, a 17-year-old cousin of the victim. He testified that the victim’s sister, Sherry Shelton Wilson, had accused him of raping the victim and that when this story began circulating at his school, he confronted the victim about the matter and told her that if she did not change her story he “was going to hit her, going to belt the crap out of her.” He testified that the victim made no response to this threat but did not seem surprised by it.

The second witness was Doris Shelton, who was the appellant’s sister-in-law and the victim’s aunt. She stated that when she heard about the accusation regarding Tinker, she confronted the victim about it and that “she [the victim] said he [Tinker] did [it].” She testified that the following exchange then took place between them: “And I says, ‘What did you mean,’ and she says, ‘He throwed me down and he tried to take my blouse oíf me.’ And I said, ‘Did he tear it,’ she says, ‘No.’ I said, ‘Well, what do you mean rape,’ she said ‘He got grass stains on my pants.’ And I said, ‘Did he do anything to you, did he get your pants oif of you.’ And she says, ‘No.’ And I said, ‘And you call that rape,’ and she says, ‘Sherry [her sister] is the one that put the rape to it.’ ”

The appellant also called Sherry as a witness. She testified that the victim had come running back from Tinker’s house crying, with her shirt ripped and dirty, and that when she asked her what had happened, the victim responded that Tinker had tried to take her shirt oif. Sherry further testified that the victim never actually told her that Tinker had raped her or tried to rape her.

Based on the foregoing testimony, we hold that the trial court did not abuse its discretion in concluding that there was “no reasonable probability” that the victim had falsely accused Tinker of raping her. Accordingly, we hold that the trial court did not err in adhering to its original ruling excluding this evidence.

Judgment affirmed.

Carley and Beasley, JJ., concur.

Decided April 3, 1991.

John R. Emmett, Hill & Henry, Wm. Ralph Hill, Jr., for appellant.

Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.


text:
    A91A0578.
    MAGHER v. THE STATE.
    (405 SE2d 327)
   McMurray, Presiding Judge.

Defendant Magher appeals her conviction of the offense of driving under the influence of alcohol. Held:

1. Defendant contends the results of the breath test given her should not have been admitted into evidence since she was denied an opportunity to obtain an independent blood test. The State presented evidence that defendant was repeatedly instructed as to her right to an additional test as provided under OCGA § 40-6-392 (a) (3), and that defendant, while confused, eventually stated that she did not want an additional test. Defendant presented evidence that she had repeatedly asked for an additional test. The trial court’s order refers to an “unintentional misunderstanding” by law enforcement officers and defendant resulting in a “ ‘justifiable failure to obtain an additional test.’ ” Nonetheless, it is clear that the trial court resolved the credibility issues in favor of the State, finding that the law enforcement officers were patient in explaining the implied consent rights to defendant and that “this is not an instance where the officers totally refused a defendant’s request [for an additional test].” The conflict in the evidence having been resolved in favor of the State, that is, the trial court having concluded that defendant did not effectively communicate to the officers any desire for an additional test, the trial court did not err in denying defendant’s motion to suppress the evidence. Mainor v. State, 259 Ga. 803, 805 (3) (387 SE2d 882).

2. In her second enumeration of error, defendant contends that evidence concerning the results of the intoximeter test of her breath should not have been admitted into evidence since the breath test was not performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. This contention is based in large part on the alleged failure of officers to observe defendant for a period prior to administering the test in order to avoid erroneous test results. There was evidence that alcohol residue in the mouth from recent consumption of alcohol or regurgitation after consumption could result in elevated intoximeter test results so that a 20-minute waiting period prior to testing is necessary to avoid contamination of the breath sample. Assuming, without deciding, that defendant has presented evidence that this 20-minute waiting period has been incorporated in the objective methods administratively promulgated in accordance with OCGA § 40-6-392 (a) (1), we find that there is ample evidence that defendant was observed for at least this period of time prior to the breath test by either the arresting officer, the intoximeter operator, or both. Compare State v. Richardson, 186 Ga. App. 888, 889 (1) (368 SE2d 825). The testimony of these officers shows that the defendant was in custody and did not exhibit any illness which could result in contamination of her breath sample.

Similarly, the State’s evidence contradicts defendant’s contention that she had any volatile materials on or about her person such as would influence the results of an intoximeter test. Nor was there any transmission made from radio equipment in close proximity to the intoximeter. This enumeration of error is without merit.

3. Defendant contends in her third enumeration that the trial court erred in admitting evidence that an alkasensor test gave a positive reading for alcohol since the State failed to lay a proper foundation by showing that the test had been performed by an instrument approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. However, under the reasoning stated in Riley v. State, 175 Ga. App. 810 (1) (334 SE2d 863), any error was harmless.

4. Next, the defendant contends that the trial court erred in charging as to the presumptions provided in OCGA § 40-6-392 (b) since results of the intoximeter test provided no evidence of alcohol in her blood. It is clear from our statutes, as well as the evidence in the case sub judice, that a breath test is used to determine the amount of alcohol in a person’s blood. There was no lack of evidence of the correlation between the alcohol content of a person’s blood and breath. This contention is without merit. Fudge v. State, 184 Ga. App. 590, 592 (5) (362 SE2d 147).

5. Lastly, defendant contends that the trial court erred in admitting into evidence an “in-custody” statement of the defendant that was not supplied to the defendant after a request for same in accordance with OCGA § 17-7-210. The State maintained that defendant was not in custody at the time the statement was made. At a hearing outside the presence of the jury, the arresting officer testified that after giving defendant the alkasensor test she had made the statement at issue, that she had had more to drink that evening than she had earlier indicated. The officer stated that based on this statement, combined with other factors, he decided to arrest and did arrest defendant.

“The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Berkemer v. Mc Carty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).” Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853). The trial court’s determination that defendant was not in custody prior to the time of the officer’s decision to arrest her is not clearly erroneous, thus will not be disturbed on appeal. Mainor v. State, 259 Ga. 803, 805 (3), supra.

Decided April 3, 1991.

M. Lynn Young, for appellant.

Lydia S. Jackson, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0642.
    ROME INDUSTRIES, INC. v. McBRIDE.
    (405 SE2d 329)
   McMurray, Presiding Judge.

This complicated commercial litigation began when plaintiff Tow Tractors, Inc., filed an action against defendants Rome Industries, Inc., and Wyman-Gordon Company. Defendants answered and defendant Rome Industries, Inc., also filed its counterclaim against plaintiff, and against McBride, Powell, and Jonsson as defendants in counterclaim. This appeal is concerned only with the counterclaim against McBride. Defendant Rome Industries, Inc., appeals the grant of summary judgment in favor of defendant in counterclaim McBride. Held:

The counterclaim of defendant Rome Industries, Inc., against McBride is predicated on two theories. First, Rome Industries, Inc., alleges tortious interference with fiduciary duty in that McBride and another owner of an interest in Tow Tractors, Inc., induced Williamson, president of Rome Industries, Inc., to engage in a course of conduct designed to benefit and improve the financial condition of Tow Tractors, Inc., at the expense of Rome Industries, Inc. Furthermore, Rome Industries, Inc., alleges a conspiracy including McBride and others to commit a breach of fiduciary duty. Rome Industries, Inc., contends that the culmination of the conspirators’ plan was that they would acquire ownership of Tow Tractors, Inc., upon favorable terms.

The testimony of the alleged conspirators consistently denies any participation by McBride in any plan, whether lawful or unlawful, to acquire ownership (or in the case of McBride, a larger share of ownership) in Tow Tractors, Inc. While Rome Industries, Inc., relies primarily upon notes and letters by Kirby, a consultant employed by Williamson and Rome Industries, Inc., and while the documents ere-ated by Kirby suggest participation by McBride in a plan involving Kirby and others, Kirby testified that they were the product of his speculation and were not based on any actual commitment by McBride. McBride’s testimony reveals that he did not regard communications concerning plans to acquire Tow Tractors, Inc., as serious proposals and in a conversation with Kirby and Williamson, McBride stated he had no interest in a proposal that the three of them acquire Tow Tractors, Inc. Furthermore, there is no evidence that McBride himself induced any unlawful activities or design on the part of anyone, or had any knowledge of such activities by others. The superior court did not err in granting a summary judgment in favor of McBride and against Rome Industries, Inc. McElroy v. Wilson, 143 Ga. App. 893, 895 (2) (240 SE2d 155).

Decided April 3, 1991.

Troutman, Sanders, Lockerman & Ashmore, June Ann Kirkland, James A. Lamberth, for appellant.

Alagia, Day, Marshall, Mintmire & Chauvin, A. Keith Logue, Andrew J. Ekonomou, Thomas J. Cullen, for appellee.

Robert N. Powell, pro se.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0105.
    RANSAW v. THE STATE.
    (405 SE2d 330)
   Banke, Presiding Judge.

The appellant was convicted of voluntary manslaughter and financial transaction fraud. He brings this appeal from the denial of his motion for new trial.

The appellant’s roommate was found by the .police lying on the living room floor of their apartment, killed by a gunshot wound to the head. Two shell casings were lying near the body; and the weapon, an automatic pistol, was found wrapped in a bedspread in the appellant’s bedroom. The pistol was unloaded at the time, and the bullet clip was missing. The appellant did not testify at trial. However, during a tape-recorded interview with police investigators following his arrest, he told the officers that the gun had discharged as he was wrestling with the victim in an attempt to prevent him from committing suicide and that he had left the victim lying on the living room floor while he went to another apartment to summon help. The appellant was unable, however, to explain how the pistol had gotten into his bedroom, how it came to be unloaded, or what had become of the bullet clip. When asked whether his fingerprints were on the clip, he responded, “I don’t know how or where the clip is . . . maybe it fell out, I don’t know.” The recording of this interview was played to the jury during the trial. Held:

Decided April 4, 1991.

Mark V. Cloud, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Assistant District Attorneys, for appellee.

1. The appellant contends that the trial court erred in refusing to declare a mistrial based on the following comments made by the state’s attorney during closing argument: “[W]here is the clip . . . are your fingerprints on the clip, Mr. Ransaw? I don’t know. I don’t know where my fingerprints are.” Appellant’s counsel contends that these comments constituted an impermissible comment on his exercise of his right not to testify.

“ ‘In Ranger v. State, 249 Ga. 315 (290 SE2d 63) (1982), [the Supreme Court] applied the two-prong test set forth in United States v. Rochan, 563 F2d 1246 (5th Cir. 1977). Under the test, reversal for improper prosecutorial conduct requires a finding that (1) “the prosecutor’s manifest intention was to comment upon the accused’s failure to testify” or (2) the comment was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Ranger, supra at 319.’ [Cits.]” Turner v. State, 258 Ga. 97 (4) (365 SE2d 822) (1988). We find no violation of either prong of the Rochan, 563 F2d 1246 (5th Cir. 1977), test. The prosecutor was clearly commenting on the implausibility of the appellant’s version of the events; and under the circumstances, we do not believe the jury would necessarily have taken the argument as a comment on his failure to testify at trial. Accordingly, we find this enumeration of error to be without merit.

2. The appellant contends that the trial court erred in admitting into evidence a “post-autopsy” photograph of the decedent depicting the fatal gunshot wound to his head. This photograph did not depict any alteration of the body which may have occurred during the autopsy and was relevant to show the bullet wound which caused the decedent’s death. While a photograph showing the state of the victim’s body as altered by an autopsy will not generally be admissible, “[a] photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.” Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) (1983). Under the circumstances, the trial court did not err in admitting the photograph.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0211.
    DUNSON et al. v. GOLDEN et al.
    (405 SE2d 332)
   Banke, Presiding Judge.

The appellants filed this action against the appellees on April 27, 1989, seeking to recover for injuries they had allegedly sustained in an automobile accident which had taken place on April 28, 1987. Service was not perfected on the appellees until October 24, 1989, some 30 months after the accident and some six months after the filing of the complaint. The appellees filed an answer on December 6, 1989, asserting, inter alia, that the claim was barred by the running of the statute of limitation. The trial court dismissed the case on that ground based on a determination that the appellants had failed to exercise due diligence in perfecting service upon the appellees, and this appeal followed.

Counsel for the appellants submitted his own affidavit as well as affidavits from two of his secretaries detailing their cumulative efforts to locate the appellees during the six-month period after the complaint was filed. The attorney stated that the service address provided in the complaint was the address contained in the accident report but that in May of 1989, “we were given an address [in Spalding County].” On the basis of that information, he filed a motion to transfer the case from Pike County, where it had been filed, to Spalding County. He averred that it was not until October of 1989 that he “received” the Henry County address at which the appellees were finally served later that month. One of the secretaries averred that after making some unsuccessful telephone inquiries as to the whereabouts of the appellees, she “turned the investigation over to [another secretary in the office].” The latter secretary averred that in July of 1989 she “called Clayton County to see if Harry Golden had a business license” and ultimately, “in early October,” obtained the correct address from the appellees’ insurance company. Held:

“Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cit.] The plaintiff has the burden of showing that due diligence was exercised. [Cits.] Ordinarily, ‘(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Shears v. Harris, 196 Ga. App. 61-62 (395 SE2d 300) (1990).

Decided April 4, 1991.

Johnny B. Mostiler, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, G. Keith Richardson, for appellees.

The trial court based its determination that the appellants had failed to exercise diligence in obtaining the appellees’ address, on findings that “the address was readily available from the defendants’ insurer” and that there was “nothing to suggest that the defendants concealed themselves from plaintiffs or in any way hindered, obstructed or delayed service.” The burden was on the appellants to show they had exercised due diligence to effect service as quickly as possible, and we conclude that the evidence did not demand a finding that they had done so. Accord Shears v. Harris, supra at 62. Accordingly, we hold that the trial court did not err in dismissing the complaint based on the running of the statute of limitation.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0377.
    WILDER v. THE STATE.
    (405 SE2d 337)
   Banke, Presiding Judge.

The appellant was convicted of robbery. His sole contention on appeal is that the trial court erred in denying his motion to dismiss the case for want of prosecution.

The trial commenced on July 17, 1990. After presenting its first witness, the state informed the court that its remaining two witnesses were enroute from Missouri and that their flight had not yet arrived. The court thereupon recessed the jury until “4 o’clock” and commenced jury selection in another case. The missing witnesses arrived later that day; but when they did, the judge decided, sua sponte, to recess the trial until the next morning. Held:

The appellant complains that the trial court should have dismissed the case under the circumstances rather than grant the state an unauthorized continuance. However, it is apparent from the transcript that no continuance was granted. Rather, the trial court simply recessed the trial for a few hours to await the arrival of the missing witnesses and then, after they arrived, decided to recess for the day. The appellant does not suggest how he was prejudiced by this procedure, and we are unable to imagine how he could have been. Moreover, even if a continuance had been granted, it is axiomatic that it is within the discretion of the trial court to grant or refuse to grant a continuance to either party. See Foster v. State, 213 Ga. 601 (100 SE2d 426) (1957).

Decided April 4, 1991.

M. Byron Morgan, for appellant.

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

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0396.
    SWINT v. THE STATE.
    (405 SE2d 333)
   McMurray, Presiding Judge.

Defendant was indicted on two counts for violating Georgia’s Controlled Substances Act, distribution of cocaine. The case was tried before a jury and defendant was found guilty on Count 1 and not guilty on Count 2. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for mistrial after the State’s attorney asked defense counsel during voir dire, “you intend to tell me who your witnesses are?”

During voir dire, the State’s attorney informed prospective jurors that “[t]he State furnished a copy of a list of witnesses to the Defense . . .” and qualified the prospective jurors as to the witnesses listed by the State. The State’s attorney then addressed defense counsel, “you intend to tell me who your witnesses are?” Defense counsel responded, “We move for a mistrial. There is no burden upon us to call any witnesses whatsoever. It’s totally improper, Judge, and we object to it and ask for a mistrial and ask that he be admonished for that.” The trial court denied the motion for mistrial and admonished the State’s attorney, “I don’t think there’s any requirement that the Defendant furnish a list of witnesses or anything, Mr. Walke. I’ll ask you not to refer to that again.”

A mistrial is not a viable remedy before a jury has been empaneled and sworn. Hughey v. State, 180 Ga. App. 375, 377 (2) (348 SE2d 901). A postponement until a new panel of jurors could be selected or a challenge to the poll “are. the. two remedies available where, upon the call of a case but before a jury is struck, the panel of potential jurors is exposed to a prejudicial remark (or, as here, a prejudicial question). Nave v. State, 171 Ga. App. 165, 167 (3) (318 SE2d 753) (1984); Bankston v. State, 169 Ga. App. 955 (1) (315 SE2d 671) (1984).” Cherry v. State, 174 Ga. App. 145 (1) (329 SE2d 580). “However, this court has held that even though the counsel failed to follow the correct procedure or to use the proper procedural tool, we will not rely upon his inaccurate nomenclature, where the relief sought in a motion is clear. Lingerfelt v. State, 147 Ga. App. 371, 373 (249 SE2d 100).” Hughey v. State, 180 Ga. App. 375, 377 (2), supra.

In the case sub judice, defense counsel’s objection and motion for mistrial pointed to the only available remedy, i.e., that the jury panel be excused and that another panel be made available. See Giles v. State, 253 Ga. 144, 145 (2) (317 SE2d 527). Consequently, the controlling issue is whether the venire was tainted by the State’s attorney’s question to defense counsel, “you intend to tell me who your witnesses are?” In this regard, defendant argues that the question amounted to a “burden shifting comment . . .” which “gave the improper impression to the jury that [defendant] was required to produce witnesses in his defense.”

We agree that the State’s attorney’s question to defense counsel was inappropriate and that it could have improperly led prospective jurors to believe that defendant had a duty to present evidence at trial. However, we find no harmful error since the trial court stated in the presence of the jury panel that he didn’t “think there’s any requirement that the Defendant furnish a list of witnesses or anything ...” and since the trial court later instructed the jury that defendant is presumed innocent; that the State has the burden of proving defendant’s guilt beyond a reasonable doubt; that “[t]here is no burden of proof upon the Defendant whatever [and that] the burden never shifts to the Defendant to prove his innocence.” See Stone v. State, 170 Ga. App. 234 (1), 235 (316 SE2d 836). This enumeration is without merit.

2. In his second enumeration, defendant contends the trial court erred in “quashing [his] subpoena for Frankie Diana.”

Defendant subpoenaed Frankie Diana and Mr. Diana appeared to testify at trial. However, before presenting evidence, the State pressed a motion to quash the subpoena, alleging that Diana’s testimony would reveal the identity of an unidentified confidential informant. Defense counsel alleged that Diana is an eyewitness to the incident which gave rise to the crimes charged and that his testimony would show that defendant did not distribute cocaine as alleged in the indictment. The State’s attorney argued that the identity of police informants is privileged and alleged that defense counsel was “on a fishing expedition in an attempt to find out the confidential informant or to find out who may be a confidential informant.” Defense counsel admitted that he had not interviewed Diana before trial, but insisted that Diana’s eyewitness testimony was important to defendant’s case. Defense counsel then stated, “I’ll assure the Court I will not ask Frankie Diana on the stand who the confidential informant is if it’s another person” and that he would only question Diana as to matters pertinent to the incident leading to defendant’s arrest. The State’s attorney later suggested that the trial court “have an in camera interview with this Mr. Diana[; that defendant’s attorney] be there, that [a State’s attorney] be there and that [defendant’s attorney] be ordered not to reveal to anybody what the testimony of Mr. Diana is unless the Court says he’s going to testify.” In response, defense counsel suggested that “the Court . . . conduct an in camera inspection . . ., just in camera with the witness[; that] neither party be there [and that whatever] the Court says on that, should be the rule.” The trial court accepted defense counsel’s suggestion and conducted a closed hearing and questioned Diana. (The trial court ordered the certified court reporter to seal the closed hearing transcript.) The trial court then granted the State’s motion to quash the subpoena and held “that the State’s interest in non-disclosure outweighs that of the Defendant’s relevancy or assistance to the Defendant in his defense.”

“ ‘The informer’s privilege is grounded in (OCGA § 24-9-27 (Code Ann. § 38-1102)) which states that no official shall be “called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” The public policy underlying this privilege is to protect and encourage the flow of information to law enforcement officials.’ Thornton v. State, 238 Ga. 160, 163 (231 SE2d 729).” Miller v. State, 169 Ga. App. 552, 553 (1) (314 SE2d 120). “Public policy inhering in the need to protect an informer and to encourage information is so strong that it may, in particular circumstances, outweigh a defendant’s right to summons a witness even if the witness is essential to the defense. State v. Mason, [181 Ga. App. 806, 809 (3) (353 SE2d 915)]. In such a case, . . . there are particular requirements placed upon the defendant to justify identifying or summonsing the informer. The defendant must ask the trial court for an in camera examination of the matter, by first showing not only the materiality but the necessity of the witness’ testimony in the defense. State v. Mason, supra, p. 813.” Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677). See Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511).

In the case sub judice, defendant was not seeking disclosure of the identity of a confidential informer, nor was he seeking an informer’s testimony. Defendant was seeking the testimony of an eyewitness to the incident which formed the basis of the crimes charged. Diana was therefore not subject to protection as a confidential informer and defendant did not have the burden of proving the materiality or necessity of Diana’s testimony. To say otherwise would allow the State to assert the “informer’s privilege” as a basis for excluding any defense witness who may be familiar with sensitive police information. Consequently, the trial court erred in failing to allow defendant to compel Diana’s eyewitness’ testimony at trial. See Roberts v. State, 72 Ga. 673, 675 (1), 676 (1884). However, we find no reversible error.

“ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. . . . Acquiescence deprives him of the right to complain further. (Cits.)’ Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536) (1986).” McGarity v. State, 190 Ga. App. 139, 140 (2) (378 SE2d 179). In the case sub judice, defense counsel acquiesced in the trial court’s ruling by agreeing to a closed hearing to determine the admissibility of Diana’s testimony and by suggesting that “the Court. . . conduct an in camera inspection . . ., just in camera with the witness[; that] neither party be there[and that whatever] the Court says on that, should be the rule.” Consequently, this enumeration is without merit.

3. In his last enumeration, defendant contends the trial court erred in denying his motion for continuance.

Defense counsel moved for a continuance after the exclusion of Frankie Diana’s testimony, arguing that Frankie Diana was defendant’s only subpoenaed witness and that he needed additional time to talk to other witnesses to the incident which formed the basis of the crimes charged. Defense counsel did not then name the other witnesses, but stated that one eyewitness was “in the Laurens County Jail” and that other eyewitnesses were known only by their first name and that they may be “in the Laurens County area.” The trial court denied the motion for continuance, but he gave defense counsel the opportunity “during the morning or lunchtime or before you’re required to put up any evidence to talk with [any witnesses].” The trial court also informed defense counsel that “[i]f you know of some people right now that you want subpoenaed, I’ll ask that a subpoena be issued and that the Sheriff’s department drop whatever they’re doing and locate whoever it is and get them in here. . . .”

“[Defendant] has failed to meet the statutory requirements for a continuance upon the ground of ‘the absence of a witness,’ OCGA § 17-8-25, nor has he met any other statutory criteria which under the circumstances would mandate such relief. Unless otherwise mandated by law, see, e.g., McGuire v. State, 185 Ga. App. 233, 236 (363 SE2d 850), ‘ “ ‘(a) refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard.’ (Cits.)” ’ Pope v. State, 256 Ga. 195, 207 (345 SE2d 831).” Moore v. State, 187 Ga. App. 387, 388 (1), supra. Under the circumstances of the case sub judice, we find no abuse of discretion in denying defendant’s motion for continuance.

Decided April 4, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       This is evidenced by defense counsel’s statement that he would not question “Frankie Diana [as to] who the confidential informant is if it’s another person” and that he would only question Mr. Diana as to pertinent events leading to defendant’s arrest.


text:
    A91A0464.
    WALKER v. THE STATE.
    (405 SE2d 322)
   McMurray, Presiding Judge.

Defendant was found guilty in probate court of speeding. He appealed to the superior court pursuant to OCGA § 40-13-28. The superior court affirmed defendant’s conviction, reciting that the affirmance was based on the review of a transcript of the probate court proceedings. Defendant appealed to this court. The notice of appeal recited that a transcript “has been filed” for inclusion in the appellate record. In fact, although a summary of the evidence was prepared by the probate judge, a transcript did not appear in the record. Accordingly, in an unpublished opinion, this Court remanded “the case to the superior court for inclusion of the transcript in the record on appeal if one exists, or in the alternative, if there is no transcript of the probate proceedings, for clarification by the superior court as to the basis upon which it made its determination that the evidence was sufficient to support the appellant’s conviction.” Walker v. State, Case No. A90A1364, decided October 24, 1990.

Following the remand, the superior court entered an order which reiterated the facts set forth in the probate court’s summary of the evidence and concluded that defendant was guilty of the offense of speeding beyond a reasonable doubt. In so doing, the superior court made it clear that its findings and conclusion were based on the summary of the evidence which the probate court certified.

Defendant appeals again, contending the evidence was insufficient to enable the superior court to find defendant guilty of speeding beyond a reasonable doubt. In this regard, defendant asserts the probate court’s summary of the evidence could not serve as the basis for a new determination of guilt or innocence in light of our ruling in the previous appeal. We disagree.

Decided April 1, 1991

Rehearing denied April 8, 1991

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

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

We did not, in the previous appeal, reject the probate court’s summary of the evidence as insufficient. We merely held that if a transcript of the evidence had been made and relied upon by the superior court, it should be included in the record on appeal. We made no determination whatsoever with regard to the sufficiency of the summary of the evidence prepared and certified by the probate court.

Defendant also argues that the summary of the evidence is insufficient on its face because it does not show whether or not the witnesses were administered an oath before giving testimony. This argument fails too. It is too late for defendant to complain that the witnesses were permitted to testify without being sworn. Neidlinger v. Mobley, 76 Ga. App. 599, 600 (1) (46 SE2d 747).

The summary of evidence certified by the probate court was sufficient to enable the superior court to conduct a de novo proceeding, reviewing the record of the lower court, and make a new determination of guilt. See generally Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0107.
    YOUNG v. THE STATE.
    (405 SE2d 338)
   Birdsong, Presiding Judge.

Newton Young appeals his convictions of child molestation, statutory rape, incest, and enticing a child for indecent purposes. He was sentenced to 15 years imprisonment on each count. Young asserts that the trial court erred by sentencing him separately for incest and statutory rape because he contends the two offenses merged for sentencing, that the trial court erred by admitting evidence of the victim’s statement in violation of the child hearsay statute, and that the trial court erred by admitting the statement Young gave to a GBI agent. Held:

1. Relying on McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263), Young contends that his conviction and sentencing for both incest and statutory rape violated OCGA § 16-1-7. In McCranie, we held that as a matter of fact the incest offense was included in the statutory rape offense so that sentencing for both offenses was prohibited because both offenses were based upon the same act of sexual intercourse. This appeal, however, is factually different from McCra-nie, because the evidence shows there were at least two acts of sexual intercourse, and thus the trial court could sentence Young for the two separate offenses. Kirby v. State, 187 Ga. App. 88, 89 (369 SE2d 274); Copeland v. State, 160 Ga. App. 786, 789 (287 SE2d 120).

2. Young alleges that the trial court erred in admitting testimony about the victim’s description of her sexual abuse without following the procedures for admission of the testimony or making a finding that the testimony was reliable. The evidence shows that after the victim testified, a GBI agent testified about what the victim told her. Young contends the trial court was required to follow the exact procedures established in Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562), and that the child hearsay statute, OCGA § 24-3-16, should be limited to circumstances in which the State wishes to avoid having the child victim testify. We are satisfied that the record shows the necessary predicates for testimony under OCGA § 24-3-16 were met. The victim was obviously available to testify because she did testify. Further, the trial court’s failure to make a specific finding of reliability was not error. Reynolds v. State, 257 Ga. 725, 726 (363 SE2d 249). In any event, since the victim actually testified in this case, the GBI agent’s testimony was otherwise admissible. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661); Waters v. State, 192 Ga. App. 677 (385 SE2d 765). Further, we specifically reject Young’s argument that the GBI agent’s testimony was inadmissible because she testified after the victim testified.

3. Young’s last enumeration of error contends that the trial court erred by admitting the statement he gave to the GBI agent because the statement was not freely and voluntarily given. This contention is based on his contention that he did not understand the rights that were read to him and because the statement was procured by threats and promise of reward.

After a Jackson v. Denno hearing in which these issues were contested, the trial court determined that the statement was voluntarily given. On appeal such a finding will be accepted by an appellate court unless it is clearly erroneous. Brown v. State, 259 Ga. 453, 454 (383 SE2d 882); Short v. State, 256 Ga. 165, 167 (345 SE2d 340); Head v. State, 191 Ga. App. 262, 264-265 (381 SE2d 519). In this case there is evidence supporting the trial court’s finding of voluntariness, and accordingly, there is no error.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided April 8, 1991.

Thomas E. Pujadas, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.


text:
    A91A0183.
    MOXLEY v. LARISCY et al.
    (405 SE2d 339)
   McMurray, Presiding Judge.

Charles Moxley brought suit against David Lariscy and James Lariscy in the Superior Court of Burke County. He alleged that on August 1, 1986, he suffered personal injuries and property damage when David Lariscy negligently operated a motorcycle (owned by James Lariscy) in such a manner as to collide with a “1982 Ford” owned and operated by plaintiff.

Defendants answered the complaint and denied any liability to plaintiff. Additionally, defendant David Lariscy counterclaimed against plaintiff to recover damages for the personal injuries he suffered as a result of the August 1, 1986 collision.

The case proceeded to trial and the jury returned a verdict in favor of defendant David Lariscy and against plaintiff in the amount of $100,000. Judgment was entered accordingly and plaintiff moved for a new trial. The motion for a new trial was denied and plaintiff appeals. Held:

1. The evidence was more than sufficient to support the verdict. Witnesses testified that plaintiff’s vehicle was traveling 35-45 mph on a dirt road which was used frequently by children riding motorcycles; that three-fourths of plaintiff’s vehicle was traveling on the wrong side of the road; and that defendant David Lariscy was unable to take any steps to avoid the collision. There was also testimony that following the collision, plaintiff moved the Ford to his side of the road, covered the Ford’s tracks, and moved broken glass from David Lariscy’s side of the road to his side of the road. Plaintiff’s first and second enumerations of error, challenging the sufficiency of the evidence, are without merit.

2. Defendant interposed a “hearsay” objection when plaintiff started to recount a conversation which took place between plaintiff’s father and “the same two boys,” one of which was David Lariscy. (According to plaintiff, his father admonished the boys to “drive it slow.”) The trial court sustained the objection. We find no error. The father’s statement was properly excluded. OCGA § 24-3-1. See also Security Life Ins. Co. v. Newsome, 122 Ga. App. 137, 138 (2) (176 SE2d 463). Plaintiff’s third enumeration of error is without merit.

Decided April 8, 1991.

Percy J. Blount, for appellant.

Jacque D. Hawk, for appellees.

3. Pursuant to OCGA § 5-6-6, defendant David Lariscy filed a motion to assess ten percent damages for a frivolous appeal. Upon our consideration of the case sub judice we decline to grant defendant’s motion to assess damages for frivolous appeal.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0280.
    COOK v. THE STATE.
    (405 SE2d 341)
   Beasley, Judge.

Cook appeals his convictions for the aggravated battery, OCGA § 16-5-24 (a), and false imprisonment, OCGA § 16-5-41 (a), of his girl friend’s mentally impaired 18-year-old daughter. He, along with the victim’s mother, was charged with illegally confining the girl and maliciously causing her bodily harm by seriously disfiguring her body and by failing and refusing to provide her with sufficient food necessary to sustain proper health, resulting in extreme loss of body weight. When the victim was found and taken for medical treatment she weighed 42a/2 pounds.

1. Appellant contends that the trial court erred in allowing the State to introduce testimony concerning alleged sexual contact between himself and the victim. He maintains that the testimony had no relevance to the charges for which he was on trial, that the testified-to actions were not properly admissible as part of the res gestae, and that the testimony prejudicially placed his character in issue.

First, there was no objection to the victim’s initial testimony that appellant had “messed” with her. The State explored the subject with about another ten questions, which were answered, before the defense lodged any objection.

Second, even assuming that defendant’s protest was timely, it was different from the objections now raised: defense counsel requested a mistrial on the basis of prejudice because there was no notice that defendant was on trial for the alleged sexual actions. Bases of objection which were not considered by and ruled on by the trial court will not be considered. See Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).

Third, prior to the testimony at issue, two State’s witnesses testified without objection regarding appellant’s sexual abuse of the vie-tim, rendering the complained-of evidence cumulative.

2. Appellant contends the trial court erred in allowing testimony from a police officer who had not been listed as a State’s witness in violation of OCGA § 17-7-110 and Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution.

The constitutional ground is not argued. “We will therefore consider the invocation of the state constitution as abandoned. [Cits.]” Mitchell v. State, 173 Ga. App. 560 (1) (327 SE2d 537) (1985).

The witness, Officer Thurman, was sent by the District Attorney’s office five or six days prior to trial to check with appellant’s mother on appellant’s background. The State called Thurman to rebut the mother’s trial testimony about where appellant was living during the time of the victim’s injuries. The State explained that it had not furnished Thurman’s name because it did not know whether it would call Thurman since it did not know whether appellant’s mother would testify, what she would testify to, and whether or not she would testify differently from what she had related to Thurman.

In contrast to the situation in Allison v. State, 256 Ga. 851, 853 (8) (353 SE2d 805) (1987), where the expert witnesses were not true rebuttal witnesses but were an important component of the State’s main case, Thurman’s testimony was not a part of the State’s case-in-chief but was a response to defendant’s evidence. “ ‘(C) ailing an unlisted witness in rebuttal is not error and does not violate (OCGA) § 17-7-110. (Cits.)’ Forney v. State, 255 Ga. 316, 318 (2) (338 SE2d 252) (1986).” Crosby v. State, 188 Ga. App. 191, 193 (4) (372 SE2d 471) (1988).

Secondly, although appellant asserts that the lack of prior disclosure impaired his defense because he was unable to do a background check of the witness, question him prior to trial, or inquire about any juror relationship to the witness, appellant does not allege or demonstrate how prior knowledge of the witness would have altered presentation of the defense. He fails to show harm. See Huff v. State, 141 Ga. App. 66 (1) (232 SE2d 403) (1977).

Thirdly, appellant does not show that he requested and/or was denied an opportunity to question Thurman prior to his testifying, or that he was denied access to the witness. See Felker v. State, 252 Ga. 351, 377 (12) (314 SE2d 621) (1984), cert. denied, 469 U. S. 873 (105 SC 229, 83 LE2d 158) (1984).

3. The last enumeration is that the trial court erred in allowing the victim to testify because she was incompetent to do so. He relies on testimony that the victim had an IQ of 40 and maintains that the court’s competency examination of the victim revealed that she had no concept as to the meaning of an oath or what it means to tell the truth.

Evidence that a witness may lack full or optimal mental capacity does not in and of itself render the witness incompetent to testify. See e.g., Haslem v. State, 160 Ga. App. 251 (1) (286 SE2d 748) (1981); Lee v. State, 108 Ga. App. 97 (1) (132 SE2d 107) (1963). Contrary to appellant’s contention the record of the court’s examination of the victim shows that she could conceptualize truth. Pursuant to the court’s questioning, see OCGA § 24-9-7, the victim stated that if you tell a lie you get in trouble, affirmed that it was good to tell the truth and bad to tell a lie, and agreed that she would tell the truth on the witness stand. She also demonstrated her understanding of the difference between truth and falsehood by her appropriate responses to purposefully true and false statements by the trial court.

Decided April 8, 1991.

Morris & Webster, Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, for appellee.

“The rules governing courts in the admission of evidence of . . . one alleged to be ... of insufficient mental capacity to understand the nature of an oath and appreciate its sanctity, are analogous to those applicable to a case where testimony of a child is offered and objected to on the ground that the child, because of its tender years and the mental incapacity resulting therefrom, is incapable .of understanding the nature of an oath. [Cits.]” Langston v. State, 153 Ga. 127 (2) (111 SE 561) (1922). A child witness need not be able to define or understand the meaning of an oath. What is critical is that the witness be able to appreciate the difference between the truth and a lie and that there is the obligation to tell the truth on the witness stand. See Raborn v. State, 192 Ga. App. 99 (1) (383 SE2d 650) (1989).

The victim qualified, so the trial court did not abuse its discretion in finding her competent.

Judgments affirmed.

Banke, P. J., and Carley, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0376.
    BROOKS v. THE STATE.
    (405 SE2d 343)
   Sognier, Chief Judge.

Bennie Brooks was convicted of aggravated assault with a deadly weapon, aggravated assault with intent to rape, and false imprisonment stemming from an attack on a former coworker. He appeals.

1. Appellant first contends the trial court committed reversible error by failing to give curative instructions to the jury after two statements the victim made during her testimony placed his character into evidence. The victim testified that at about 7:00 p.m. on March 9, 1990, appellant, with whom she was acquainted because both were employed in the administrative offices of a local college, appeared at her apartment and stated he wanted to wait there until a friend returned to drive him to the airport. After talking with him for an hour or more, the victim left to visit a neighbor in a nearby apartment, leaving appellant alone in her apartment. When she returned, appellant grabbed her, holding her with his arm around her neck, and brandished a knife. She stated that “he told me to be quiet, that he was there because he needed a place to stay because he was running from the police.” The victim testified that appellant then led her to her bedroom and placed her on her bed, tied her wrists and ankles, and told her he would not allow her to leave. Later in her testimony, in response to a question from the prosecutor asking what appellant said about why he wanted to stay at her apartment, the victim responded that “he told me because he had committed two other crimes and that . . . this was the only place that he could go.” Appellant, who represented himself at trial, did not request limiting instructions, and no such instructions were requested or given.

We hold the statements were admissible as part of the res gestae of the crime. “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. [Cit.] Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. [Cit.]” Fuqua v. State, 183 Ga. App. 414, 419 (359 SE2d 165) (1987). Here, appellant’s statements suggesting his fugitive status were part of the res gestae and thus were admissible. Japhet v. State, 176 Ga. App. 189, 191 (6) (335 SE2d 425) (1985); accord Guthrie v. State, 147 Ga. App. 351, 355-356 (6) (248 SE2d 714) (1978). Moreover, evidence otherwise admissible does not become inadmissible because it incidentally puts the defendant’s character in issue. McKenzie v. State, 248 Ga. 294, 296 (5) (282 SE2d 95) (1981). Since the statements were admissible for the purpose of explaining the circumstances surrounding the crime, no limiting instructions were required in the absence of a request. See Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978).

2. The admission into evidence of the knife found in appellant’s sock when he was apprehended at the victim’s apartment, which was not the knife he used to threaten the victim, likewise was not error because the evidence was admissible as part of the circumstances surrounding the arrest. See Fuqua, supra.

3. Appellant’s contention that the two aggravated assault charges merged as a matter of fact is also without merit. The trial testimony showed that the aggravated assault with a deadly weapon was com-píete when appellant grabbed the victim in the living room and wielded the knife. See OCGA § 16-5-21 (a) (2). The subsequent aggravated assault with intent to rape occurred in the bedroom when appellant bound the victim and made threatening statements concerning rape while the knife was on the dresser near his hand. See OCGA §§ 16-5-20 (a) (2); 16-5-21 (a) (1); see also Watson v. State, 178 Ga. App. 778, 780-781 (2) (344 SE2d 667) (1986).

Decided April 8, 1991.

Warren A. Sellers, for appellant.

Bennie Brooks, pro se.

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

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A0564.
    McBRIDE v. THE STATE.
    (405 SE2d 345)
   Pope, Judge.

Defendant Stephen Lewis McBride was indicted and convicted of five counts of first degree forgery. Each count of the indictment charged defendant with “unlawfully and knowingly, with intent to defraud, [possessing and uttering] a certain check and writing signed in the fictitious name of Angela Shaw . . . .” Each of the checks was issued on a commercial account in the name of Biltmore Atlanta and the checks were imprinted with a telephone number which was the same as that of the Atlanta Biltmore Hotel and with an address confusingly similar to the hotel’s. Each indicated on its face that it was a payroll check.

The evidence presented at trial showed that the Atlanta Biltmore Hotel was no longer operational and had no checking account and no employees by the name of Stephen McBride or Angela Shaw. Defendant testified that the account on which the checks were drawn was the business account for a business he ran known as Biltmore Atlanta Catering Service which operated in a building next to the former hotel. Angela Shaw is defendant’s former wife and an employee of defendant’s catering business. Defendant testified he authorized her to write the checks in question and admitted he knew they were bad checks and the account contained insufficient funds to cover them.

Defendant moved for directed verdict on the ground that the State failed to prove the offenses charged in the indictment, but the motion was denied. After his conviction defendant moved for new trial on the general grounds, including the ground that the evidence was insufficient to support the verdict. The motion was denied and defendant appeals.

1. In his first enumeration of error defendant asserts the trial court erred in denying the motion for new trial on the ground that the verdict is decidedly and strongly against the weight of the evidence. Numerous cases have held that the trial court alone has the authority to grant a new trial because the verdict is against the weight of the evidence. See, e.g., Josey v. State, 197 Ga. 82 (28 SE2d 290) (1943); Hood v. State, 192 Ga. App. 150 (2) (384 SE2d 242) (1989). “An appellate court considers only the sufficiency and not the weight of the evidence.” Young v. State, 243 Ga. 546, 547 (1) (255 SE2d 20) (1979). Where no evidence is presented from which a rational trier of fact could find the defendant guilty of the offense as charged, however, the issue of the weight of the evidence becomes an issue of the sufficiency of the evidence. Here, no evidence sufficient to support a guilty verdict was presented for the trial court to weigh against exculpatory evidence. Consequently, we must, in fairness, treat this enumeration as one raising the sufficiency of the evidence to support the verdict, which is an issue on which the appellate court can rule.

By statutory definition, forgery in the first degree can be committed in either of three ways: By knowingly and with intent to defraud uttering a writing (1) in a fictitious name; or (2) in such a manner that the writing purports to have been made by another person, at another time, with different provisions; or (3) in such a manner that the writing purports to have been made by the authority of one who did not give such authority. OCGA § 16-9-1 (a). While the facts adduced at trial show a jury might have been authorized to find defendant guilty of forgery under the second or third manner for committing the crime, as set forth in the statute, defendant was charged by indictment only for issuing checks “signed in the fictitious name of Angela Shaw . . . .” The evidence showed Angela Shaw was not a fictitious person, and we reject the State’s argument that Angela Shaw was a “fictitious” person for purposes of writing the check since she was not authorized to wyite checks for the Atlanta Biltmore Hotel. No evidence was presented that the check was written on a hotel account. The only evidence concerning the identity of the account on which the check was written showed the check was written on the account of Angela Shaw’s employer. The only issue is whether the averment concerning Angela Shaw was an unnecessary averment which did not need to be proved in order to obtain a conviction.

“[N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. If evidence can be offered in support of the allegation, the allegation can not be rejected as surplusage.” Henderson v. State, 113 Ga. 1148, 1149 (39 SE 446) (1901). Here, the averment that the checks in question were signed by a fictitious person is most definitely a necessary element of the offense charged in the indictment. “ ‘If the indictment sets out the offense as done in a particular way, the proof must show it, or there will be a variance.’ ” Fulford v. State, 50 Ga. 591, 593 (1874). Accord Walker v. State, 146 Ga. App. 237 (1b) (246 SE2d 206) (1978). In this case, although other allegations against the defendant could have been charged in additional indictments, the only allegations actually set forth in the indictments stated that he uttered writings signed in a fictitious name. The proof did not correspond to these allegations. Consequently, the evidence was insufficient to support the convictions because a rational trier of fact could not have found beyond a reasonable doubt that defendant was guilty of the crimes as charged in the indictment.

Decided April 8, 1991.

Andrei G. Howze, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Constance C. Russell, Richard E. Hicks, Assistant District Attorneys, for appel-lee.

2. Because of our holding in Division 1, we need not address defendant’s remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0764.
    PINKNEY v. UNION et al.
    (405 SE2d 521)
   McMurray, Presiding Judge.

Defendant Thomas Union’s motion to dismiss this professional malpractice case was granted in an order entered on November 15, 1990. On December 12,1990, plaintiff Joe Lewis Pinkney filed his motion for extension of time to file notice of appeal, pursuant to OCGA § 9-11-6 (b), and his motion for reconsideration of the order dismissing his complaint. Also, on December 12, 1990, the superior court granted an extension of time for the filing of plaintiff’s notice of appeal until December 21, 1990. However, plaintiff’s notice of appeal was not filed until December 26, 1990. Plaintiff having failed to satisfy his burden to file his notice of appeal within the 30-day period provided under OCGA § 5-6-38 (a) or within an extension of that period duly authorized under OCGA § 5-6-39, plaintiff’s appeal must be dismissed. Associated Distributors v. Willard, 242 Ga. 247 (248 SE2d 645). We further note that plaintiff’s motion for reconsideration is not one of those motions which will extend the time for filing a notice of appeal. Morton v. Morton, 163 Ga. App. 830 (296 SE2d 362).

Decided April 8, 1991.

Mays & Washington, W. Roy Mays III, for appellant.

Martin, Snow, Grant & Napier, John C. Edwards, for appellees.

Appeal dismissed.

Sognier, C. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A90A0446.
    THORPE v. THORPE et al.
    (406 SE2d 141)
    Decided April 9, 1991.

      Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, Rebecca A. Copeland, for appellant.

      McGee & Oxford, Stanley P. Meyerson, for appellees.
   Andrews, Judge.

On certiorari our decision reversing the trial court in Thorpe v. Thorpe, 196 Ga. App. 499 (396 SE2d 247) (1990) was reversed in Thorpe v. Thorpe, 260 Ga. 799 (400 SE2d 620) (1991). Accordingly, our decision is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley and Cooper, JJ., concur.