text:
    A93A1241.
    GRAM CORPORATION v. WILKINSON.
    (437 SE2d 341)
   Johnson, Judge.

The Gram Corporation entered into a written contract to employ M. J. Wilkinson as its office manager for ten years at a salary of $6,011 per month. Wilkinson filed this lawsuit against Gram, alleging that it breached the contract by prematurely terminating her employment. Gram answered that it did not terminate Wilkinson’s employment and that she breached the contract by refusing to continue her employment when Gram relocated its corporate office from Georgia to Florida. The jury returned a verdict of $71,246 in favor of Wilkinson. Gram appeals from the trial court’s entry of judgment on the verdict and the denial of its motion for a directed verdict and motion for j.n.o.v. or, in the alternative, a new trial.

1. Gram contends that the contract is unenforceable because it is too vague and indefinite regarding the type of services and place of performance. See McTerry v. Free For All Missionary Baptist Church No. 1, 129 Ga. App. 724 (200 SE2d 915) (1973). Gram makes no real argument that the parties did not understand these terms of the contract. Instead, it construes the contract as so indefinite that the court should not have considered parol evidence in interpreting it.

At the outset, we note that because Gram’s attorney drafted the contract, any ambiguity will be construed most strongly against Gram. Considine Co. of Ga. v. Turner Communications Corp., 155 Ga. App. 911, 914-915 (5) (273 SE2d 652) (1980); Oak Creek Dev. Corp. v. Hartline-Thomas, Inc., 138 Ga. App. 83, 85 (1) (a) (225 SE2d 515) (1976). “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.” (Citations and punctuation omitted.) Derosa v. Shiah, 205 Ga. App. 106, 107 (1) (421 SE2d 718) (1992). Here, the pertinent portions of the contract provide only that Wilkinson is employed by Gram as its “Office Manager” and that her duties will be prescribed and directed by Gram’s president. The trial court properly found these portions of the contract to be ambiguous as to the duties to be performed by Wilkinson and the place of performance.

Upon making such a finding, the trial court correctly admitted parol evidence to explain the ambiguities. “ Tt is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.’ Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439-440 (291 SE2d 35) (1982).” Brunson v. C. B. A., Inc., 189 Ga. App. 621, 622-623 (1) (376 SE2d 706) (1988); see also Indian Trail Village v. Smith, 139 Ga. App. 691, 694-695 (4) (229 SE2d 508) (1976). “Parol evidence is admissible to explain an ambiguity but where the degree of indefiniteness imparts no meaning at all, there is nothing to explain.” McTerry, supra at 725. Here, the contract description of Wilkinson’s position as “Office Manager” is not so indefinite as to impart no meaning at all as to her duties and the place of performance. As the trial court noted, the parties clearly intended Wilkinson to manage Gram’s office, wherever it is located.

“The test as to whether the contract is sufficiently definite as to the place where the services are to be performed will vary with the circumstances of each type contract. [Cit.]” Mallory v. Erickson, 118 Ga. App. 838, 840 (2) (165 SE2d 913) (1968). Parol evidence showed that at the time the parties executed the contract, Gram’s only corporate office was located in Tucker, Georgia, and Wilkinson had been working in that office as its manager for approximately eight months. Over two years after entering into the contract, Gram relocated the corporate office from Tucker to West Palm Beach, Florida. Under these circumstances, the court did not err in finding the contract to be sufficiently definite as to the place of performance; the parties clearly intended Wilkinson’s place of employment to be Gram’s sole corporate office, initially located in Georgia and later moved to Florida.

Parol evidence also showed that, as office manager, Wilkinson was responsible for maintaining Gram’s general ledger, doing all of Gram’s banking and accounting, and arranging the corporation’s board meetings. This evidence was sufficient to make certain any ambiguity which existed in the contract as to the type of services to be performed by Wilkinson. Mallory, supra at 839 (1). Where, as here, the parties abided by the terms of the contract without dispute for approximately two years, it was not error to find it to be enforceable. See Atlantis Realty Co. v. Morris, 142 Ga. App. 470, 472 (2) (236 SE2d 163) (1977).

2. Gram argues that the trial court erred in denying its motion for a directed verdict and its motion for j.n.o.v. or, alternatively, a new trial because there is no evidence that Wilkinson demanded performance by Gram under the contract. Gram relies on Beach v. First Fed. Savings &c. Assn., 140 Ga. App. 882, 883-884 (2) (232 SE2d 158) (1977), in which we held that if a contract requires two acts to be done simultaneously, it is necessary for the party complaining of a breach of that contract to show performance on her part or that she made a demand on the other party to perform. Because Wilkinson presented evidence showing performance on her part until the time she was allegedly terminated by Gram, it is immaterial whether she demanded performance by Gram under the employment contract. “If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. Since Wilkinson presented evidence that she performed pursuant to the contract until Gram’s conduct excused her from performance, the jury was authorized to find that she was not required to demand performance from Gram. “A directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations, punctuation and emphasis omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268) (1990). The court did not err in denying Gram’s motions on this ground.

3. Gram contends that the court erred in denying its motions for a directed verdict, j.n.o.v. or, alternatively, a new trial because Wilkinson failed to mitigate her damages by refusing Gram’s offer to continue her employment in Florida. See OCGA § 13-6-5. This contention is without merit because there was evidence presented at trial from which the jury could have found that Gram’s offer of continued employment was not bona fide. Moreover, it is undisputed that Wilkinson has mitigated her damages by taking another job with Gram in Georgia. Because the evidence did not demand a finding that Wilkinson failed to mitigate her damages, the court did not err in denying Gram’s motions. Southern Store, supra.

4. Gram, relying on OCGA § 13-4-4, argues that the award of damages to Wilkinson was unauthorized because the parties mutually departed from the exact terms of the contract. Gram states that it preserved this argument for appellate review by including it in the motion for j.n.o.v. or a new trial. In support of this statement, Gram cites the pages in the record where the motion is found. A review of that motion, however, reveals that it does not include this argument. Because this argument was not raised in the trial court, Gram cannot raise it for the first time on appeal. Ga. Ports Auth. v. Southeast Atlantic Cargo Operators, 202 Ga. App. 318, 323 (3) (a) (414 SE2d 232) (1991).

Decided October 14, 1993

Reconsideration denied October 28, 1993

Stokes, Lazarus & Carmichael, William K. Carmichael, Richard J. Joseph, for appellant.

Lawson & Daniel, John W. Lawson, Christopher D. Langley, for appellee.

5. Gram complains that the court erred in refusing to give its requested jury charge that the duties of the employee and the place of performance are essential terms of an employment contract and must be stated with sufficient definiteness in the contract to show the intent of the parties. “The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” OCGA § 13-2-1. As discussed in Division 1 of this opinion, the trial court properly resolved the ambiguities in the contract regarding Wilkinson’s duties and the place of her employment. There was no matter of fact to be found by the jury as to the definiteness of these terms. The trial court therefore properly refused to give the requested charge.

6. Gram claims that the court erred in refusing to give its requested jury charge that the defendant is excused from performing under the contract if the plaintiff failed to perform her obligations under the contract or made no demand upon the defendant to perform. The court, however, substantially covered the requested charge by instructing the jury on Wilkinson’s burden of proof, the definition of a contract, that either party can breach a contract and that repudiation of the contract by either party excuses the other party from performance. “A requested charge is properly refused when the principle involved is substantially covered by the court’s general charge.” (Citations and punctuation omitted.) Bryson v. Button Gwinnett Savings Bank, 205 Ga. App. 668, 669 (1) (423 SE2d 691) (1992).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The contract was initially entered into by Wilkinson and The Dee Rivers Group, Inc., which, pursuant to paragraph nine of the contract, assigned it to the Gram Corporation. Both Dee Rivers and Gram are owned by members of the same family.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A1583.
    DRUID ASSOCIATES, LTD. et al. v. NATIONAL INCOME REALTY TRUST.
    (436 SE2d 721)
   Johnson, Judge.

National Income Realty Trust (NIRT) (formerly Consolidated Capital Income Trust [CCIT]) sold property located at 963 Ponce de Leon Avenue, Atlanta, to Druid Associates, Ltd. in October 1984. NIRT financed the loan amount of $1.5 million, taking back a deed to secure the debt.

On January 1, 1989, Druid leased the property to Atlanta Cooperative Enterprises, Ltd. (ACE). ACE defaulted on payments to Druid for part of April 1989 and the months of May-December 1989 inclusive. Consequently Druid failed to make payments on the loan to NIRT and ultimately NIRT foreclosed on the property pursuant to a power of sale clause in the deed on January 2, 1990.

NIRT filed this action in the State Court of Fulton County seeking to recover, inter alia, a delinquent $42,746 water bill against ACE, Druid and its general partner, Harry M. Epstein. Summary judgment was entered in NIRT’s favor and Druid and Epstein appeal.

Paragraph 9 of the “All-Inclusive Deed to Secure Debt, Assignment of Rents and Security Agreement” provided that: “Borrower . . . shall pay and discharge all taxes ... all water and sewer charges and all other public charges . . . imposed upon or assessed. . . .” Clearly Druid was liable for the water bill and, prior to the date of foreclosure, any unpaid amounts constituted a lien on the property.

Under most circumstances, the doctrine of merger would have extinguished any liens at the time of foreclosure. “[W]here the holder of the legal title under a security deed purchases the equity of redemption, the whole estate is vested in him; and both the lien and the debt upon which it is founded are extinguished, unless the actual value of the property be ascertained, by foreclosure and sale under the lien, or by express stipulation between the parties.” Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 (159 SE 599) (1931). Obligations for water service, however, constitute a recognized exception to the general doctrine, binding a subsequent owner even after a sale or foreclosure. See Bowery Savings Bank v. DeKalb County, 240 Ga. 528 (242 SE2d 50) (1978); Pease v. City of College Park, 155 Ga. App. 120 (270 SE2d 329) (1980). Any outstanding amounts due the City of Atlanta for water would survive the foreclosure and become the obligation of the lender. The amount would normally be ascertained prior to the foreclosure and included in the amount of the bid made at the foreclosure sale and presumably awarded in subsequent deficiency proceedings, if any. This option was not available to NIRT, however because the “All-Inclusive Deed to Secure Debt, Assignment of Rents and Security Agreement,” as well as, the “All-Inclusive Promissory Note Secured by Deed to Secure Debt,” were executed without recourse.

NIRT claims that it became subrogated to the rights of the City of Atlanta with regard to the debt. “Subrogation is the substitution of another person in the place of the creditor, so that the person in whose favor it is exercised succeeds to all the rights of the creditor. It is of equitable origin, being founded upon the dictates of refined justice, and its basis is the doing of complete, essential, and perfect justice between the parties, and its object is the prevention of injustice . . . Legal subrogation takes place as a matter of equity, without any agreement to that effect made with the person paying the debt, and is independent of both creditor and debtor. . . . Hence, legal subrogation arises as a matter of equity without any agreement to that effect, and conventional subrogation depends upon contract, and upon payment of the debt of another one is entitled to the securities and rights of the creditor so paid.” (Citations and punctuation omitted.) Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 140 (305 SE2d 790) (1983). NIRT is not laying claim to conventional subrogation, admitting that the loans were without recourse, and advances only on a theory of equitable subrogation.

The issue in this case is whether a no recourse loan will defeat a post-foreclosure claim for legal subrogation. We believe that it does. A claim for subrogation will lie in “those cases where the party claiming it advanced the money to pay the debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect. . . .” Gilbert v. Dunn, 218 Ga. 531, 533 (128 SE2d 739) (1962). In this case, however, the terms of the note and the security deed specifically stated that the loan was without recourse. The language contained in the note: “It is understood that the Maker hereof shall have no personal liability hereunder of (sic) for a deficiency judgment upon foreclosure under the Deed to Secure Debt, and that in the event of default, the sole and exclusive remedy of the Holder is to look to the property through foreclosure pursuant to the Deed to Secure Debt”; as well as, the language contained in the Deed to Secure Debt: “There shall be no recourse hereunder to Borrower, or its general or limited partners,” make it perfectly clear that recovery of the property through foreclosure was the sole remedy available to NIRT in the event of default. See Davidson v. Baier Corp., 151 Ga. App. 314 (259 SE2d 707) (1979); Baier Corp. v. Davidson, 158 Ga. App. 804 (282 SE2d 388) (1981). “It is clear that a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies. It is likewise clear that when the grantor of a security deed grants a power of sale he does so not for his ultimate benefit but, rather, for the benefit of the grantee. ‘The power of sale in a mortgage simply gives to the (mortgagee) a remedy for the collection of his debt in a summary way. . . . The power is conferred for the purpose of enabling the mortgagee to collect, his debt.’ [Cit.]” Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 328 (270 SE2d 867) (1980). See also Averitt v. Swainsboro Methodist Church, 190 Ga. 549, 555 (9 SE2d 888) (1940).

Decided October 5, 1993

Reconsideration denied October 28, 1993.

Schreeder, Wheeler & Flint, John A. Christy, Debra A. Wilson, for appellants.

Venema, Towery, Thompson & Chambliss, Howard M. Delashmit, Holt, Ney, Zatcoff & Wasserman, Stephen C. Greenberg, Jay F. Castle, for appellee.

Even if the claim for legal subrogation survived the no-recourse terms of the loan and security deed, NIRT would not be entitled to an award of the entire amount of the debt when there is no evidence before the trial court that the entire debt has been paid. A subrogee is entitled to indemnification only to the extent of the money actually paid. Southern R. Co. v. Malone Freight Lines, 174 Ga. App. 405, 408 (330 SE2d 371) (1985).

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2285.
    O’KELLEY v. THE STATE.
    (436 SE2d 760)
   Johnson, Judge.

Candy O’Kelley pled guilty to driving under the influence of alcohol after the trial court denied her motion to suppress the results of a breath test which revealed a blood-alcohol concentration of 2.0 grams percent. The denial of the motion to suppress was properly preserved for review on appeal. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991).

1. O’Kelley contends the roadblock at which she was stopped was unconstitutional because the officers exercised discretion in stopping cars. O’Kelley’s car was stopped at 4:27 a.m. at a roadblock located on a well-lit ramp exiting off Interstate 85. At the motion to suppress hearing, the arresting officer testified that it was his practice to stop every car. He admitted that if traffic got backed up on the exit ramp, he and the other police officer conducting the roadblock would let some cars pass to prevent accidents with cars leaving the highway, but that at the time of O’Kelley’s arrest, traffic was light and they were stopping every car. He also testified that only if both officers were engaged would a car be allowed to pass, but that he did not recall that happening during O’Kelley’s arrest.

O’Kelley relies on State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984), in which this court affirmed a roadblock noting that all vehicles were stopped and citing Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979) in which the U. S. Supreme Court expressly disapproved random stops of motorists. There is no evidence in the record of the present case, however, to support O’Kelley’s contention that the officers were making random stops or exercising discretion in choosing which cars to stop at the time of her arrest.

2. Similarly, there is no factual support for O’Kelley’s assertion that the trial court erred in finding that a supervisory officer had approved the roadblock. The arresting officer testified that the DUI task force, of which he was a member, had a standing order from their highest supervisor to initiate roadblocks at any of four main locations. The night of O’Kelley’s arrest the location of the roadblock was verified with a supervising officer. In Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989) the court noted only that Golden, supra, considered whether a supervisor had approved the roadblock. Neither Golden nor Evans hold that supervisory approval is a requirement for a roadblock. Both cases merely note that it is one factor to be considered in evaluating the “totality of the circumstances surrounding the roadblock.” Evans, supra at 857. And, in Mims v. State, supra, this court upheld the legality of a roadblock, noting that the factors discussed in Golden and Evans were not absolute requirements. “[N]either Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this court looked at the totality of the circumstances surrounding the roadblock to decide whether the factors in Golden were satisfied.” (Citations and punctuation omitted.) Weeks v. State, 206 Ga. App. 431, 432 (425 SE2d 421) (1992).

3. O’Kelley contends that roadblocks violate Art. I, Sec. I, Par. XIII of the Georgia Constitution and OCGA § 17-5-30. This argument was not raised below and may not be raised for the first time on appeal. French v. State, 198 Ga. App. 210, 211 (2) (401 SE2d 67) (1990). See also State v. Swift, 232 Ga. 535 (207 SE2d 459) (1974).

4. Finally, O’Kelley argues that the roadblock failed to meet minimum standards of advanced publicity and visibility. There is no advanced publicity requirement in Georgia. Georgia law requires only that the roadblock be identified as a police checkpoint. Evans, supra. In this case, two police cars, one with strobe lights flashing and the other with blue and red lights flashing were parked on the side of the road at the end of the exit ramp. Both cars had reflective lettering identifying them as police vehicles. Both officers were in uniform. We find no error in the trial court’s determination that the roadblock satisfied the requirement that it be identifiable as a police checkpoint.

Decided October 14, 1993

Reconsideration denied October 28, 1993

Glenn Zell, Rodney Zell, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A93A1213.
    MOSS et al. v. WILKIE et al.
    (437 SE2d 367)
   Pope, Chief Judge.

Plaintiffs brought suit against Ted M. Wilkie, Jr., Alice Whitney, f/k/a Alice Wilkie (defendants), who were formerly husband and wife, and others, alleging that defendants failed to disclose and fraudulently concealed that the house defendants sold to them had been damaged by termite infestation. Plaintiffs subsequently amended their complaint against Ted Wilkie by adding a claim for failure to disclose all material defects in the house. Defendant Wilkie answered and denied the allegations against him, but defendant Whitney failed to answer the complaint. The case proceeded to trial against Wilkie and the jury returned a verdict in favor of plaintiffs for $47,500. The trial court initially entered judgment for plaintiffs for “the sum of $47,500.00, less $20,500.00 previously recovered. . . .” Defendant Wilkie filed a motion for j.n.o.v., and the trial court entered an order granting that motion on the basis that plaintiffs had failed to prove their claim of fraud. The trial court also made its findings applicable to defendant Whitney, and entered no judgment against her, although acknowledging that Whitney was in default because she failed to answer the complaint. Plaintiffs appeal.

1. Our review of the record and transcript in this case leads us to conclude that the trial court, for the reasons stated in its order, properly granted Wilkie’s motion for j.n.o.v. See, e.g., Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986); U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280 (312 SE2d 618) (1983); Lively v. Garnick, 160 Ga. App. 591 (1) (287 SE2d 553) (1981). Plaintiffs’ first and second enumerations are thus without merit.

2. Plaintiffs also contend the trial court erred by failing to enter a default judgment against Whitney. We agree and reverse the trial court’s judgment as to that defendant. “ ‘Due to (her) default [Whitney] is in a position of having admitted each and every material allegation of [plaintiffs’] complaint except as to the amount of damages suffered by [plaintiffs]. (Cits.) Defenses which go to the right of recovery are not available to [Whitney] in default even though the same defense may also go to the assessment of damages. (Cit.)’. Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979). See OCGA § 9-11-55 (a). Evidence which serves to relieve [Whitney] of liability which she has already admitted by virtue of the default judgment is inadmissible. First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99 (3) (400 SE2d 393) (1990). See Lee v. Morrison, 138 Ga. App. 332 (226 SE2d 124) (1976). [It follows that] the trial court erred in considering evidence which spoke to the liability of [Whitney]. By [virtue of failing to answer the complaint filed against her, Whitney’s] liability . . . was admitted, and the only issue to be determined by the court was the amount of the damages. Therefore, we reverse the order of the trial court and remand for a [determination, based on the evidence presented at trial, of the damages to be awarded to plaintiffs. In this regard we note that the only claim asserted in plaintiffs’ complaint against Whitney related to the termite infestation damage. Consequently, plaintiffs’ recovery of damages will likewise be so limited].” Holland v. Tennyson, 201 Ga. App. 125 (410 SE2d 447) (1991). See also Cole v. Smith, 182 Ga. App. 59, 63 (3) (354 SE2d 835) (1987); Flanders v. Hill Aircraft &c. Corp., 137 Ga. App. 286 (223 SE2d 482) (1976).

Decided October 28, 1993.

Douglas R. Thompson, for appellants.

Alice Whitney, pro se.

Barksdale, Irwin, Talley & Sharp, David B. Irwin, for Wilkie.

Judgment affirmed as to appellee Ted M. Wilkie, Jr.; judgment reversed and case remanded as to appellee Alice Whitney.

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


text:
    A93A1330.
    MCDONALD v. THE STATE.
    (436 SE2d 811)
   Pope, Chief Judge.

Following denial of his motion for new trial, defendant Kenneth McDonald appeals his conviction for involuntary manslaughter, possession of a firearm during the commission of a crime, and hindering the apprehension and punishment of a criminal.

Construing the evidence in the light most favorable to support the verdict, the defendant and the victim had a dispute concerning the victim talking to defendant’s girl friend. On October 31, 1991, defendant confronted the victim while he waited for his girl friend to return to his car. There was an altercation between the two but it ended without violence. The next evening defendant and some friends were driving and saw the victim’s car parked outside a house. They parked a short distance away and defendant instructed one of his companions to remove a gun from the glove compartment of the car. They then walked down the street, allegedly for the purpose of shooting the tires of the victim’s car. As they walked down the street they saw the victim walking with the aunt of his girl friend. Defendant approached the victim and hit him. The two men then began scuffling. Shortly thereafter, defendant’s two companions became involved in the scuffling. One of those companions was holding the gun, which discharged during the scuffle. The victim was killed by a bullet wound to the head. Defendant was tried with his two companions. Only defendant was convicted.

1. There was sufficient evidence from which a rational trier of fact could find the defendant guilty of the crimes of which he was convicted beyond a reasonable doubt.

2. Defendant next argues the trial court committed reversible error by admitting over his objections the statements of his co-defendants in which the names of the other companions that evening were omitted and blanks were inserted.

“Every defendant has the right under the Sixth Amendment ‘to be confronted with the witnesses against him.’ Bruton [c. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968)] holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the co-defendant cannot be cross examined by the non-confessing defendant. In this situation the Supreme Court has held that the co-defendants should be tried separately so that the demands of the confrontation clause can be met. [Cits.] Further, the Supreme Court has held that if a confession directly implicates a co-defendant, the confession is so highly prejudicial that a curative instruction is not sufficient to obviate application of the Bruton rule. [Cit.]” United States v. Espinoza-Seanez, 862 F2d 526, 533-534 (5th Cir. 1988).

We initially note that defendant’s argument with regard to the statement given by co-defendant Woods is without merit since he took the stand to testify and could be cross-examined by defendant. With regard to the statement given by co-defendant Stephens, who exercised his right not to testify, we hold that simply removing the name of the co-defendants and inserting in lieu thereof a “blank” was not sufficient to avoid a Bruton violation. Each statement by the co-defendants in this case had blanks left for two persons. Defendant argues, and we agree, that since each defendant had two other co-defendants, the jury would readily fill in the blanks with the names of the co-defendants. See United States v. Danzey, 594 F2d 905 (2d Cir. 1979), cert. denied sub nom. Gore v. United States, 441 U. S. 951 (99 SC 2179, 60 LE2d 1056) (1979) (finding a Bruton violation by the use of “blanks” in a statement); Hodges v. Rose, 570 F2d 643 (6th Cir. 1978), cert. denied sub nom. Lewis v. Rose, 436 U. S. 909 (98 SC 2243, 56 LE2d 408) (1978) (holding use of a “blank” made it clear the person redacted was the co-defendant); cf. Richardson v. Marsh, 481 U. S. 200 (107 SC 1702, 95 LE2d 176) (1987) (holding the confrontation clause of the Sixth Amendment is not violated by the admission of a non-testifying co-defendant’s confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant’s name but any reference to the defendant’s existence).

However, our holding that the procedure followed by the trial court regarding Stephens’ statement violated Bruton does not end our inquiry in this case, since we will not reverse unless error is shown to be harmful. In this case, there was overwhelming evidence of defendant’s guilt. There were several witnesses to the confrontation between the victim and defendant. Each statement of the co-defendants was essentially the same. Co-defendant Stephens’ testimony did not implicate defendant’s guilt in this case more than the statement given by defendant, the statement given by co-defendant Woods, or the testimony of the woman who was walking with the victim at the time he was attacked by defendant. Accordingly, we hold the admission of Stephens’ statement was harmless error under the facts of this case. Guimond v. State, 259 Ga. 752, 755 (3) (386 SE2d 158) (1989).

3. Defendant contends the trial court erred in admitting certain similar transaction evidence. The evidence about which defendant complains was not admitted as similar transaction evidence. This enumeration is without merit.

4. Defendant filed an enumeration of error contending the trial court erred in failing to grant his motion for directed verdict on the issue of intent. This enumeration is not supported by argument or citation of authority and is deemed abandoned. Court of Appeals Rule 15 (c).

5. Defendant argues that the trial court’s use of the following language during the jury charge constitutes reversible error: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty.” (Emphasis supplied.) Our Supreme Court disapproved of that language in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992), but held that because the trial court’s charge repeatedly and accurately conveyed to the jury the concept of reasonable doubt and because there was overwhelming evidence of defendant’s guilt, the use of that language was harmless error. The charge in this case and the charge in Vance are essentially the same. Furthermore, there is overwhelming evidence of defendant’s guilt in this case as well. Accordingly, we are constrained to follow our Supreme Court’s decision in Vance.

We note, however, that recent decisions from the United States Supreme Court indicate that the holding of our Supreme Court in Vance may be ripe for reconsideration by that Court. In Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990) (per curiam), the Supreme Court held that an instruction on reasonable doubt, which included “moral certainty” language could have been interpreted by a reasonable juror as allowing “a finding of guilt based on a degree of proof below that required by the Due Process Clause.” 498 U. S. at 41. Then, in Sullivan v. Louisiana, 508 U. S._(113 SC 2078, 124 LE2d 182) (1993), the Supreme Court had occasion to decide whether use of the charge it had declared unconstitutional in Cage could constitute harmless error. The Court held that harmless error analysis was not applicable to an “instructional error [which] consists of a misdescription of the burden of proof.” 124 LE2d at 190. Although the charge condemned in Cage and Sullivan is somewhat different than the charge in this case and in Vance, the Supreme Court of North Carolina held in State v. Bryant, 432 SE2d 291 (N.C. 1993) that “the crucial term . . . condemned by the United States Supreme Court in Cage is ‘moral certainty.’ ” Id. at 297. Use of that term “increases the possibility that a jury may convict a person because the jury believes he is morally guilty without regard to the sufficiency of the evidence presented at trial. . . .” Id. We also note that the United States Supreme Court recently accepted certiorari in State v. Victor, 494 NW2d 565 (Neb. 1993) and People v. Sandoval, 841 P2d 862 (Cal. 1992). Victor v. Nebraska, _ U. S. _ (62 USLW 3241) (October 1, 1993) and Sandoval v. California, _ U. S._(62 USLW 3241) (October 1, 1993). In each of those cases the courts upheld the use of charges on reasonable doubt containing “moral certainty” language against challenges that the charges were constitutionally flawed as set forth in Cage. Victor, 494 NW2d at 569; Sandoval, 841 P2d at 878; see also State v. Morley, 474 NW2d 660, 669-670 (Neb. 1991).

Decided October 28, 1993.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       There is no indication in Vance that our Supreme Court considered the United States Supreme Court’s decision in Cage at the time it issued that opinion.

       The charge considered in Cage follows: “ ‘If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. [Cit.]’ ” 498 U. S. at 40.


author: Blackburn, Judge.

text:
    A93A1411.
    LOYLESS v. THE STATE.
    (436 SE2d 814)
   Blackburn, Judge.

The appellant, John Loyless, was indicted as a recidivist on one count of child molestation and one count of simple battery. Following a trial by jury, he was convicted of both offenses, and sentenced to 20 years’ imprisonment for child molestation and 12 months’ imprisonment for simple battery, to serve consecutively. This appeal follows the trial court’s denial of his motion for a new trial.

The evidence produced at trial shows that Loyless resided in the same neighborhood as both victims and was drinking at the time of each incident. The 28-year-old, mentally slow, battery victim testified that Loyless came to his home where he lived with his mother and requested to use their bathroom. Once inside the victim’s home, Loyless did not use the bathroom as requested, but sat next to the victim, grabbed the victim’s shirt, and tried to unbuckle the victim’s pants. He also fondled the victim’s genital area and tried to have sex with him. Loyless was identified in court as the perpetrator.

The molestation victim, who was six years old at the time of trial, was in his back yard when Loyless picked him up over the fence that separates his yard from the yard of Loyless, and touched his buttocks. He also fondled his genital area. The victim informed a detective investigating the incident and a child protective service worker that Loyless fondled him. He also informed his kindergarten teacher that an older person fondled his genital area, although he did not identify Loyless by name.

During his testimony, Loyless admitted that he went to the home of the battery victim and sat near the victim after he used the bathroom. He maintained that he did not touch the battery victim in an improper manner, although he did admit that he touched the battery victim’s knee before he exited the home. He further denied touching the molestation victim on his buttocks or in his genital area. In 1969, Loyless pled guilty to the sodomy of a male child under the age of 16, and over objection, a copy of his conviction was admitted to impeach his testimony that he was not a child molester. No error was raised on appeal concerning the admission of the prior conviction evidence or the examination of defendant in connection therewith and will not therefore be addressed.

1. Loyless asserts that a new trial is warranted because the evidence produced at trial does not support his conviction. We conclude otherwise.

Viewing the evidence in the light most favorable to the jury’s verdict, including the testimony of the witnesses, we find that there was sufficient evidence such that a rational trier of fact could find Loyless guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Teasley v. State, 207 Ga. App. 719 (1) (429 SE2d 127) (1993); Sisk v. State, 207 Ga. App. 817, 819 (1) (429 SE2d 274) (1993). See also Wells v. State, 204 Ga. App. 90 (418 SE2d 450) (1992). Accordingly, the trial court did not abuse its discretion in denying his motion for a new trial.

2. Loyless additionally asserts that the trial court erred in allowing the jury to determine the competency of the minor child molestation victim after the minor’s competency was challenged. We disagree.

Under OCGA § 24-9-7, the competency of a witness is determined by the court and if there is any objection to the witness’ competency, it must be made before the witness is examined. “Although the statute calls for a preliminary examination . . . even the complete failure of the court to hold a preliminary proceeding has been held not reversible error, where [as in the case sub judice] an examination on the question of competency is in fact made by counsel in the presence of the court and the jury, and the court is satisfied from such examination that a prima facie case of competency is shown. Any procedural defect or error made by the trial court during an examination to determine competency must be ‘very flagrant’ to authorize this court to reverse the trial court’s judgment on this question. [Cit.]” Sprayberry v. State, 174 Ga. App. 574, 576 (1) (330 SE2d 731) (1985).

There was sufficient evidence for the trial court to determine that the child met the standard of intelligence required for qualification as a witness. The child’s responses to the questions posed by the prosecution “clearly demonstrated that [he] understood both the difference between truth and falsehood and the importance of telling only the truth, thereby complying with the requirements of OCGA § 24-9-5. [Cit.]” Wood v. State, 195 Ga. App. 424, 425 (393 SE2d 720) (1990). See also Cook v. State, 199 Ga. App. 523 (405 SE2d 341) (1991). Any failure by the trial court to make a preliminary determination on the competency of the molestation victim was not such error as to warrant reversal under the facts of this case. In any event, Loyless did not voice any objection to the procedure employed by the trial court in determining the competency of the molestation victim and cannot now complain, having waived any right to do so.

3. Lastly, Loyless asserts that the trial court erred in denying his motion to sever the child molestation and simple battery offenses. He further contends that the trial court’s erroneous denial of his motion to sever the offenses denied him a fair and impartial trial, warranting a new trial.

“Severance is required if offenses are joined solely because they are similar in nature. Severance is not mandated, however, where the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind. Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to severance in the interests of justice. Severance in this particular kind of circumstance lies within the sound discretion of the trial judge.” (Citations and punctuation omit- . ted.) Jefferson v. State, 206 Ga. App. 544, 546-547 (3) (425 SE2d 915) (1992). See also Williams v. State, 206 Ga. App. 533 (426 SE2d 32) (1992); Jordan v. State, 172 Ga. App. 496, 497 (323 SE2d 657) (1984); Gober v. State, 247 Ga. 652 (1) (278 SE2d 386) (1981).

It is apparent that the joined offenses were part of a pattern of conduct in which Loyless sexually attacked two neighbors, one being very young and the other being mentally slow. The evidence presented at trial showed that Loyless, while drinking, was the perpetrator of the offenses against the victims, both of whom he knew, which demonstrates a bent of mind of sexual deviancy and a pattern of sexual abuse. As a result, severance was not mandated. “The joined offenses were not similar merely because they were sexual crimes against [a young boy and a young man] but because they allegedly were committed in a similar manner, i.e., fondling of the genital areas.” Hammock v. State, 201 Ga. App. 614, 618 (5) (411 SE2d 743) (1991). “ ‘Moreover, the offenses charged were not so numerous or the evidence so complex that, prior to trial, the court could find that the trier of fact would be unable to distinguish the evidence and apply the law intelligently as to each offense.’ [Cit.]” Campbell v. State, 206 Ga. App. 456, 458 (2) (426 SE2d 45) (1992). Consequently, we conclude that the trial court did not abuse its discretion in denying Loyless’ motion to sever and motion for new trial on this basis.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided October 28, 1993.

John W. Sherrer, Jr., for appellant.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.


text:
    A93A1570.
    BIGSBY v. THE STATE.
    (436 SE2d 817)
   Pope, Chief Judge.

Defendant was convicted by a jury of robbery by snatching. On appeal, he challenges the denial of his motion to suppress identification evidence against him as well as the sufficiency of the evidence.

Neighbors Robin Schoening and Janna Ates returned home in Schoening’s car at approximately 12:30 in the morning. The passenger side window was broken, and Schoening stopped to adjust it after they got out of the car. While she was working on the window and Ates was standing next to her, Ates saw two men approaching. When they reached Schoening’s car, the two men split up and stood on either side of the two women. One of the men asked the women if they had any money, and they said no. The man then said, “Give me what you got.” When they refused, the same man yelled “Get ‘em,” grabbed Schoening’s purse and ran off, with Schoening chasing him. The second man also fled in the same direction. Schoening’s boyfriend and Ates’ husband heard their screams and joined the chase. A few blocks away, the perpetrators split apart and Schoening lost them. Police then arrived, and Schoening was describing the purse snatcher — a tall black man wearing a silver jacket — to Sergeant Sheryl Martin when her boyfriend pointed to a man fitting that description emerging from the bushes several houses down the block. Schoening yelled, “I see him,” and started running, and Sergeant Martin jumped in her car to follow. Another police car arrived from the opposite direction, and the man was apprehended. Schoening immediately identified the man as the purse snatcher, and identified him at trial as defendant. Ates also identified defendant as the purse snatcher at the time of his apprehension and at trial. The morning after the robbery, Schoening found her purse and its contents in the same bushes from which defendant emerged the night before.

1. Defendant’s contention that Schoening and Ates’ show-up identification of him just after the robbery occurred was impermissibly suggestive is without merit. Even if Schoening’s identification of defendant after she pointed him out to police prior to his apprehension can be considered a show-up, “‘[s]uch on-the-scene “show-up”

Decided October 28, 1993.

Rodney S. Zell, for appellant.

Lewis R. Slaton, District Attorney, Bill Fincher, Vivian D. Hoard, Assistant District Attorneys, for appellee.

identifications have been held not to be impermissibly suggestive’ ” where they are necessary due to the practicalities of the situation. Gatling v. State, 203 Ga. App. 407, 409 (2) (416 SE2d 877) (1992). See also Williams v. State, 188 Ga. App. 496 (373 SE2d 281) (1988) (“Practicalities inherent in this type of situation suggest that an immediate on-the-scene confrontation between victim and suspect is essential both to law enforcement and to fairness toward innocent suspects. [Cits.]”). (Punctuation omitted.) Williams, 188 Ga. App. at 498 (2). Schoening and Ates saw the purse snatcher’s face for about ten seconds in a well lighted area, and their attention was focused on him. The challenged “show-up” identification occurred about ten minutes after the robbery. Moreover, both Schoening and Ates were absolutely certain that defendant was the purse snatcher. Under these circumstances, there was not a substantial likelihood of misidentification. See Jones v. State, 258 Ga. 25 (3) (365 SE2d 263) (1988). The trial court did not err in denying defendant’s motion to suppress.

2. Viewing the evidence in the light most favorable to the verdict, it was sufficient to enable the jury to find defendant guilty of robbery by snatching beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A93A1600.
    BRIDGES v. CITY OF MOULTRIE.
    (437 SE2d 368)
   Beasley, Presiding Judge.

The City of Moultrie was granted partial summary judgment and a writ of possession against defendants Truett and Bridges. The order is not subject to OCGA § 5-6-35 (a) (3). In May 1977, Truett purchased from CSX Transportation (formerly Seaboard Coast Railroad Company) a station depot building in Moultrie to use as a warehouse. The bill of sale provided that the building was to be considered severed from the real estate as personal property and that the “instrument conveys no rights, title or interest in the real estate of Seller, nor right to leave or maintain said building on the real estate where situate.” It further provided: “This bill of sale is delivered contemporaneously with a certain Lease between the parties named herein and all subsequent rights and obligations of the Purchaser are to be governed by said Lease, which Lease is incorporated herein. ...” The lease, effective June 1, 1977, was for a 0.14 acre parcel of land on which the building was situated. It was terminable by either party upon 30 days’ written notice, at which time the lessee was required to vacate and remove all structures not owned by the lessor. It was amended in February 1991 to reflect an increase in rent. All other terms were to remain in force.

On November 8, the city acquired the parcel by quitclaim deed from CSX, plus an assignment of the lease. On January 2, 1992, the city notified Truett by certified letter of its termination of the lease, effective 30 days thereafter.

According to the verified petition for writ of possession and admitted in the answer, Bridges occupies the building on the leased premises, in which he operates a recycling business. After notice of termination, defendants were granted an additional 30 days to remove their property, but refused to do so or to surrender possession of the premises.

In support of summary judgment, the city produced certified copies of a series of deeds beginning in 1899 to establish its ownership of the property through an unbroken fee simple chain of title. In response, defendants claimed that the original deed of 1899 is in error and the city failed to prove that it acquired fee simple title to the parcel.

Bridges asserts that a factual issue exists as to the existence of a landlord-tenant relationship. His argument is two-fold. First, as he asserted in answer to the petition, a condition to the 1977 purchase/ lease agreement between Truett and CSX’s predecessor-in-title conveyed to Truett a right of first refusal to purchase the parcel in the event it or its successors ceased to operate a railroad on the adjoining tracks. Second, as he claimed in response to interrogatories, CSX abandoned the property and had nothing to convey to plaintiff.

1. Although the defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action, Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 594 (3) (409 SE2d 71) (1991), “[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under [OCGA § 44-7-50 et seq.].” McKinney v. South Boston Savings Bank, 156 Ga. App. 114 (2) (274 SE2d 34) (1980).

In a joint answer to the petition, Truett admitted that he leased the property from CSX in 1977, and Bridges admitted that CSX attempted to transfer the property to the city. Bridges now asserts that the assignment was not made in accordance with law and disputes CSX’s title and its authority to convey anything to plaintiff city. His challenge to the existence of a landlord-tenant relationship is predicated on an attack of the validity of CSX’s original title to the land, but the law precludes him from disputing his landlord’s title “while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord’s title, or while he is taking any position that is inconsistent with the position that the landlord’s title is defective.” OCGA § 44-7-9. “[A] landlord is authorized to file a complaint for the ejectment of his tenant alleging, not that the landlord has a presently enforceable legal title to the land, but, that the landlord has a presently enforceable lease contract with the tenant, and, that the tenant has breached said contract so as to entitle the landlord to possession.” Ingold, Inc. v. Adair, 247 Ga. 155, 156 (274 SE2d 560) (1981). Since Bridges may not do indirectly what the law prohibits him from doing directly, he cannot defend the dispossessory action by challenging plaintiff’s title.

Decided October 28, 1993.

Richard T. Kent, Gardner & Weathers, Sam J. Gardner, Jr., Joseph D. Weathers, for appellant.

Whelchel, Whelchel & Carlton, Hoyt H. Whelchel, Jr., James C. Whelchel, for appellee.

2. Nor does Bridges’ claim of abandonment avoid summary judgment. This assertion is predicated on evidence of a November 7, 1989 decision by the Interstate Commerce Commission approving CSX’s request to abandon a portion of the railroad line. Bridges relies on Fambro v. Davis, 256 Ga. 326, 327 (1) (348 SE2d 882) (1986), for the proposition that “[w]henever a railroad line is abandoned, the presumption is that the fee is in the adjacent landowners and that their right extends to the centerline, unless the contrary appears.” His claim is that when CSX abandoned the line it no longer had anything to convey to the city. An abandonment of the rail line merely, again, presents a challenge to the landlord’s title, which is not a proper defense to the dispossessory action. Moreover, the railroad line is not the subject property. The lease covers the parcel of land, adjacent to the line on which the former depot is situated.

No evidence has been offered to defeat plaintiff’s claim for summary judgment with respect to the issuance of a writ of possession.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Judgment was entered against both defendants, but only Bridges appeals.


author: Smith, Judge.

text:
    A93A1601.
    TOUCHTON v. THE STATE.
    (437 SE2d 370)
   Smith, Judge.

Willie Inos Touchton was convicted of child molestation, OCGA § 16-6-4 (a), and sexual battery, OCGA § 16-6-22.1 (b). The victim was his step-granddaughter, who was then 13 years old.

1. Touchton contends the trial court erred in denying his motions for a directed verdict of acquittal on both counts. Specifically, he argues that the State failed to prove that any touching of the victim was done with the intent to arouse Touchton’s own sexual desires, as required by OCGA § 16-6-4 (a), or that he intentionally made physical contact with any intimate parts of the victim’s body without her consent, as required by OCGA § 16-6-22.1 (b).

Whether or not the accused had the requisite intent is a question for the jury. Carsner v. State, 190 Ga. App. 141 (378 SE2d 181) (1989). It is not error to refuse to direct a verdict when, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime, including intent, beyond a reasonable doubt. Rautenberg v. State, 178 Ga. App. 165, 167 (1) (342 SE2d 355) (1986). Although Touchton, who had recently married the victim’s grandmother, denied touching the victim improperly and insisted that he had touched her only to dance with her at her request and to hug her as a grandfather, the victim testified that on numerous occasions Touchton had rubbed her breasts inside her clothing even after she became “teary-eyed” and asked him to stop, and that he touched her genitals through her clothing about five or six times. A school counselor testified that a teacher called her attention to a poem the victim had written expressing suicidal ideation. The victim then revealed to the counselor that Touchton had touched her offensively. The counselor informed the victim’s mother and made a report to DFCS. A detective with the Clayton County Police Department testified that the victim told her Touchton had been making sexual advances toward her and had touched her breasts and attempted to touch her genitals.

Viewing this evidence in the light most favorable to the prosecution, Rautenberg, supra, it was sufficient to authorize the jury to find the essential elements of the crimes charged, including intent, beyond a reasonable doubt. The trial court therefore did not err in denying Touchton’s motions for a directed verdict of acquittal.

2. Pursuant to USCR 31.3, the State provided Touchton with notice prior to trial that it would seek to introduce evidence of his prior plea of guilty to sending and receiving child pornography through the mail. After a hearing out of the presence of the jury, the trial court permitted the State to introduce this evidence for the limited purpose of showing Touchton’s lustful disposition. Touchton enumerates this ruling as error, arguing that his previous conviction was insufficiently similar.

The trial court permitted the introduction of a certified copy of the conviction and allowed testimony from the postal inspector who executed the search warrant for Touchton’s home in the prior case. He testified that he found a collection of women’s and girls’ underwear stapled or tacked to a wall in Touchton’s closet and a number of photographs of nude young girls, including Touchton’s natural granddaughter, in a cabinet in Touchton’s room. Some of these photographs, which were also introduced into evidence, depicted the young women engaged in explicit sexual behavior; some showed Touchton nude as well, with his hands on the girls. A friend of Touchton’s granddaughter testified that she had posed for some of the photographs, and that Touchton had fondled and molested her and his granddaughter over a period of about a year.

There is no requirement that the prior crime or transaction be absolutely identical to the crime charged. If sufficient similarity exists such that proof of the prior act tends to prove the charged act, evidence of similar crimes is admissible to show the accused’s lustful disposition and to corroborate the victim’s testimony that the accused acted in the manner charged. McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328) (1991). Although Touchton’s prior conviction was not for child molestation but for sending and receiving child pornography, the evidence sought to be admitted differs from the photographs sought to be admitted in Roose v. State, 182 Ga. App. 748, 749 (1) (356 SE2d 675) (1987), cited by Touchton, in that it shows behavior on Touchton’s part that was strikingly similar to the acts for which he was on trial. Since the evidence admitted here was sufficiently similar, the trial court did not err in admitting it.

3. Touchton also contends the trial court erred by allowing the State to ask questions regarding his bad character when he had not first placed his character in issue.

He complains of two instances in which the State impermissibly placed his character into evidence. The first instance occurred in the State’s case-in-chief during the testimony of the young woman who, with Touchton’s granddaughter, had posed for nude photographs taken by Touchton. During the direct examination, in an attempt to reveal why the girls had posed, the prosecutor asked her whether Touchton ever gave them anything, “any money, or gifts, or any incentive to do that.” The witness answered that he had not, but “[h]e bought us beer though and he gave us beer.” The prosecutor then continued this line of questioning, asking how many times he had bought beer. This time the defense objected and, outside the presence of the jury, moved for a mistrial on the ground that because furnishing alcohol to a minor was a crime, Touchton’s character had been placed in issue. The trial court indicated that it was a “rather close call,” but denied the motion, overruled the objection, and admonished the State to be very careful.

The trial court ruled correctly. The question and answer established part of the res gestae of the similar crime, and it was therefore proper, even though it incidentally placed Touchton’s character in evidence. See Belcher v. State, 201 Ga. App. 139, 140-141 (2) (410 SE2d 344) (1991).

In the second instance, the record does not support Touchton’s contention that the trial court permitted the State to place his character in issue. A defense witness, Touchton’s mother-in-law, was called by Touchton primarily to testify that the victim’s reputation for veracity was not good. During cross-examination, the prosecutor asked her if she knew that Touchton had pled guilty to child pornography in 1986. She replied that she did not. The defense did not object to the question or the answer. Several questions later, the prosecutor asked the witness what she would think about Touchton’s reputation if she knew that he had pled guilty to child pornography. The defense then objected to the question and moved for a mistrial. The State argued that the question was asked for the purpose of impeaching the witness. She had testified that she knew Touchton very well and saw him every day, but was not aware of his prior conviction. Yet she also testified that the victim’s reputation for veracity was poor, even though she admitted seeing the victim only a few times a year. The court denied the motion for mistrial. However, the judge sustained Touchton’s objection to the question, rebuked the prosecutor for her attempt to use the prior crime to impeach the witness, and instructed the jury extensively and emphatically that it was to consider the prior guilty plea for the limited purpose for which it was admitted and for no other purpose. The court also asked the members of the jury to raise their hands if in their own minds they felt unable to restrict the use of the similar crime evidence to the limited purpose for which it was admitted. No juror raised a hand. The witness was not permitted to answer the question.

We need not address the propriety of the trial court’s denial of Touchton’s motion for a mistrial, as Touchton does not enumerate that ruling as error, and the trial court ruled in Touchton’s favor on his objection. The jury heard credible evidence from the victim and several others that Touchton had committed the crimes charged, and the jury indicated it understood that the prior conviction was admitted for a limited purpose only. The prosecutor’s question was improper. However, given the trial court’s curative instruction, poll of the jury, and admonition of the prosecutor, it is highly unlikely that the question contributed to the jury’s verdict. See generally Stevens v. State, 195 Ga. App., 324, 326 (393 SE2d 482) (1990).

Decided October 28, 1993.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge. Johnson, Judge,

text:
    A93A1732.
    FABIAN v. DYKES et al.
    (436 SE2d 819)
   Blackburn, Judge.

On March 13, 1992, Carl Dykes brought the instant action against the appellant, Bobby Fabian and William Woodall as president and vice president of Fabian and Woodall, Inc. (the corporation), seeking reimbursement for monies paid as a guarantor on a September 30, 1982, promissory note from said corporation to The Coastal' Bank. Fabian responded to the complaint, asserting several defenses and denying liability based upon a release executed by the bank within two months of the execution of the promissory note. Woodall was never located or served with a summons or a copy ,of the complaint, and the action proceeded to trial against Fabian.

After the presentation of evidence by Dykes, Dykes moved for a directed verdict. The trial court deferred ruling on the motion, indicating that the court would submit to the jury for its consideration the issue of whether Fabian had been released from the promissory note. After Fabian presented evidence in his defense, the jury deliberated on the issue of the release, and returned a verdict in favor of Fabian, finding that Fabian had been released from the debt. Thereafter, Dykes renewed his motion for a directed verdict, or in the alternative, a j.n.o.v., and the trial court entered a j.n.o.v., finding in favor of Dykes as a matter of law because, as a surety, Dykes had an independent right to collect from his principal, Fabian, under OCGA § 10-7-41. The trial court awarded Dykes the total amount of the payments that he made on the account in addition to the accrued per diem interest through February 24, 1993, the date of the trial. This appeal followed.

In Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (417 SE2d 423) (1992), relying on our Supreme Court’s decision in Connell v. Long, 248 Ga. 716, 719 (1) (286 SE2d 287) (1982), the majority of this court reversed the trial court’s grant of a motion for directed verdict, where, as in the present case, the trial court granted the motion after the jury returned its verdict in favor of the appellant, without entering a judgment on the jury’s verdict. We noted therein that “there is no authority for the proposition that a trial court, having reserved its ruling on a motion for a directed verdict, may grant the motion before entering judgment on the jury’s verdict.” Anaya, supra. We likewise reversed the trial court’s judgment in Wright v. Millines, 204 Ga. App. 111 (418 SE2d 453) (1992), where the trial court, without entering a judgment on the jury’s verdict, granted the original motion for directed verdict notwithstanding the verdict of the jury. As in Anaya, supra, in Wright, we held that the trial court should not have entered a j.n.o.v. prior to the entry of a judgment on the jury’s verdict.

In the case sub judice, after initially reserving its ruling on Dykes’ motion for directed verdict, the trial court entered a judgment in favor of Dykes prior to entering a judgment on the jury’s verdict that Fabian had been released from the promissory obligation. Accordingly, we are bound by our recent decisions in Anaya and Wright, and must reverse the trial court’s judgment, with direction that judgment be entered on the jury’s verdict. Thereafter, the parties will be entitled to pursue post-judgment remedies, including the right to file an appeal from any adverse final judgment in the case.

Judgment reversed with direction.

McMurray, P. J., concurs. Johnson, J., concurs specially.

Johnson, Judge,

concurring specially.

I am constrained to agree with the majority in this case because it correctly applies this court’s decision in Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (417 SE2d 423) (1992). However, I continue to believe that Anaya was wrongly decided for the reasons set forth in my dissent in that case. Here, as in Anaya, we return a case to the trial court for the entry of a judgment upon the jury’s verdict to correct a purely technical defect which, when corrected, will bring this case back to us for consideration of the merits. As I wrote in Anaya, “(a)ll of this is totally unnecessary and could be obviated by simply reaching the merits of the . . . appeal at the present time.”

Decided October 28, 1993.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellant.

Jones, Osteen, Jones & Arnold, G. Brinson Williams, Jr., for appellees.

       OCGA § 10-7-41 specifically provides that “[pjayment by a surety or endorser of a debt past due shall entitle him to proceed immediately against his principal for the sum paid, with interest thereon, and all legal costs to which he may have been subjected by the default of his principal.”

       Dykes died following the filing of this appeal. On June 21, 1993, this court substituted as party-appellees Debra Shuman and R. Lance Dykes, executors of Dykes’ estate pursuant to Court of Appeals Rule 39 (a).

       As we stated in Anaya, when a ruling on a motion for directed verdict is reserved by the trial court and ruled on after the verdict, it is treated as a j.n.o.v.


text:
    A93A0995.
    WILSON v. THE STATE.
    (436 SE2d 732)
   Beasley, Presiding Judge.

Count 1 of an indictment charged appellant with the molestation of 11-year-old G. K. by touching her breasts and vaginal area with the intent to arouse and satisfy his sexual desires. Count 2 charged him with the rape of 14-year-old M. B. This appeal relates to his conviction of G. K.’s molestation.

Thirteen days prior to trial, the State filed notice of its intent to present evidence of a similar transaction in which appellant drove a 13-year-old girl to a parking lot and touched her breasts and genital area over her clothes and rubbed her leg. A motion hearing was held the same day. The prosecutor stated that the evidence, offered to show bent of mind, showed that on two occasions appellant had taken off M. B.’s nightgown and underwear and touched her all over her body before having sexual intercourse with her, and appellant started kissing G. K. on the neck and rubbing her breasts and in between her legs, just like he did to the female in the other transaction.

Defendant objected on grounds that the rape victim was not a child, and a touching is not a similar transaction to a rape. The prosecutor responded that if the rape victim had been six to eight months younger, the offense would have been child molestation. The court stated that it was inclined to admit the similar transaction evidence as to the child molestation charge although this might cause the defendant to want a severance of the rape charge. The court instructed the parties to submit citations of authority.

One week later, defendant did file a motion for severance. The following day, the State filed a second notice of intent to present evidence of similar transactions, stating that subsequent to raping M. B., defendant had touched and grabbed her “all over” without her consent, and this incident led to her reporting to her mother that defendant had sexual intercourse with her on two prior occasions.

Four days after the State filed the second notice of intent, another motion hearing was held. At the hearing, the court granted defendant’s motion for severance and ruled that the State could admit evidence of M. B.’s rape and the third female’s molestation as similar transactions in the trial of the molestation of G. K., which the State elected to try first. The court stated that it would rule at trial on the State’s request to admit evidence of appellant’s fondling of M. B.

At the hearing, the prosecutor moved in limine to prohibit reference to any sexual activity of any victim with anyone other than defendant, on grounds that such evidence is irrelevant and that its admission would violate the rape shield statúte. Defense counsel argued that the rape shield statute was inapplicable because it concerns only voluntary activities; that one of the children in this case had been molested previously; and that evidence of this was relevant to credibility in that the prior molestation had so clouded the victim’s thinking that any kind of attention, no matter how harmless, caused her to relive these things and think that every man was attempting the same thing. The prosecutor argued that this evidence was not relevant as to a child in her teens, although it might be as to a very young child who would not have any knowledge of sexual matters. The court stated that it would allow defense counsel to cross-examine the child as to whether she would be upset if a man just touched her without going into past sexual behavior. The defense to the molestation charge was that although the defendant was present and spoke to the victim at the time she said she was molested, nothing happened between the two of them. The judge granted the motion unless the defendant could present expert testimony that a prior molestation could lead to a subsequent false accusation of molestation.

Later at the hearing, defense counsel complained that she had not been served with notice of the State’s intent to introduce evidence of M. B.’s rape as a similar transaction in the G. K. molestation trial. The prosecutor responded that Count 2 of the indictment constituted notice, and although USCR 31.1 required notice of the state’s intent to present evidence of similar transactions to be given and filed at least 10 days before trial, the time could be shortened. The court stated that it would permit the state to present evidence of this similar transaction but, if it appeared at trial that defendant had been prejudiced, a mistrial would be granted.

The trial began the following day and during its course appellant did request a mistrial, but the grounds did not concern the adequacy of the State’s notice of intent to present evidence of any similar transaction.

1. Appellant contends that the trial court erred in refusing to admit evidence concerning prior victimization of G. K. and the third girl, proifered by defendant to impeach their credibility concerning his acts against them.

“[E]vidence of a prior molestation as previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990); Stancil v. State, 196 Ga. App. 530 (396 SE2d 299) (1990).

It is admissible if relevant for another purpose related to an issue:

Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993), held that where a physician testified that she found evidence of repeated penetration of the vaginal area and anus of statutory rape and child molestation victims, the trial court should have allowed defendant’s evidence concerning prior alleged molestations of the victims to show that someone other than defendant caused their injuries, and to attack the victims’ credibility.

Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992), held that the trial court abused its discretion in not admitting evidence of the victims’ prior false allegations of child molestation by someone else, under circumstances similar to those in Strickland’s case, to show lack of credibility.

Hall v. State, supra at 524 (2), held that where the State admits evidence that a child exhibited symptoms consistent with the child sexual abuse accommodation syndrome, evidence of prior molestations is admissible to establish other possible causes for the behavioral symptoms; and a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility, as the credibility of a young child’s report of an improper touching must necessarily be weaker if the child has had occasion to learn about such behavior from prior incidents. Also see Marion v. State, 206 Ga. App. 159 (1) (424 SE2d 838) (1992).

Moody v. State, 205 Ga. App. 376, 377 (3) (422 SE2d 70) (1992), recognized that prior victimization may be admissible in a child molestation case to rebut evidence of child abuse accommodation syndrome and to attack the child’s credibility, citing Hall, supra.

Raines v. State, 191 Ga. App. 743, 744 (2) (382 SE2d 738) (1989), a rape and simple battery case, held that evidence of the victim’s past rape was relevant to explain her state of mind and conduct in failing physically to resist appellant.

This case involved a victim who was 11 years old at the time of the offense and 15 years old at the time of trial. She testified that she went into a utility house in her back yard. Appellant, who was working on her house at the time, came in behind her, closed the door part of the way, felt her on her chest and vaginal area, kissed her neck, said she was his girl friend, and asked her to kiss him. She pushed his hand away and told him to stop. He did it again, and she pushed him out of the way and ran out.

The trial court did not abuse its discretion in ruling that evidence that the victim had been previously molested was not relevant to the present molestation charge. Defendant did not show that it tended to undermine credibility, the purpose for which it was offered. The witness was not a child of tender years. Such a child might be confused and base her testimony on what she learned from prior acts Upon her by someone else. The probability of the witness in this case confusing the two events, considering her age, would be far weaker. On the other hand, the probability of her having general knowledge of such matters, not based on a prior incident, would be far greater. Thus it does not fall within the exception to inadmissibility as a matter of law.

2. Appellant contends that the trial court erred in admitting the testimony of M. B. regarding a rape as a similar transaction to a child molestation.

M. B. testified that she is appellant’s cousin and was living with his family. See Rouse v. State, 204 Ga. App. 845 (1) (420 SE2d 779) (1992). She was sleeping when appellant came into her room one night, held her down, put his hand over her mouth, starting touching her person, pulled her gown up and her underclothes down, and inserted his private part into her private part.

The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses. E.g., Byars v. State, 198 Ga. App. 793, 794 (3) (403 SE2d 82) (1991). Sexual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible. See Byars v. State, supra; Jackson v. State, 198 Ga. App. 447, 448 (1) (402 SE2d 279) (1991); Brown v. State, 173 Ga. App. 640, 641 (3) (327 SE2d 515) (1985); Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985). The testimony was admissible to show appellant’s inappropriate behavior, lustful disposition, and sexual proclivity toward young girls, i.e., his bent of mind. Sears v. State, 182 Ga. App. 480, 483 (5) (356 SE2d 72) (1987); Bloodworth v. State, 173 Ga. App. 688 (327 SE2d 756) (1985). Appellant fondled M. B. before raping her, just as he had fondled G. K., factual similarities between the child molestation and rape.

3. Appellant complains that he was not given timely notice of the State’s intent to present evidence of M. B.’s rape as a similar transaction.

Rule 31.1 requires notice to be filed at least ten days before trial, but it also allows shortening or lengthening of the ten-day period by the court. This clothes the court with discretion which will not be controlled absent abuse. Hall v. State, 181 Ga. App. 92, 93 (1b) (351 SE2d 236) (1986).

The prosecutor put appellant on notice at the first motion hearing, which was more than ten days prior to trial, that if the counts of the indictment were severed the State would seek to admit evidence of the rape as a similar transaction in the trial of the child-molestation charge. The court indicated then that it was inclined to allow it if there was a severance, and defendant later did seek and obtain a severance. Since defendant was thereby enabled to resolve questions regarding admissibility of this evidence in advance of trial, the court did not abuse its discretion. Nolton v. State, 196 Ga. App. 690, 691 (1) (396 SE2d 605) (1990).

4. Appellant contends that the trial court erred in refusing to grant an appeal bond. The issue is moot because we affirm the conviction. Dorminey v. State, 205 Ga. App. 806, 808 (2) (423 SE2d 698) (1992).

5. Appellant contends that the trial court erred in denying his motion for new trial, as amended, on the ground that he was denied his state and federal constitutional rights to effective assistance of trial counsel, but he does not pursue an independent state claim. Thomas v. State, 203 Ga. App. 529, 530 (1) (417 SE2d 353) (1992).

“[A] claim of inadequacy of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)] must meet a two-part test. [Cit.] First, the defendant must show that counsel’s performance was deficient. Strickland, supra at 687. Secondly, prejudice must be established by showing ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id. at 694.” Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316) (1992).

“ ‘Under Strickland’s first component, the defendant must show that counsel’s representation “fell below an objective standard of reasonableness.” 466 U. S. at 688. In regard to this component, Strickland emphasizes that counsel’s “overarching duty” is “to advocate the defendant’s cause ... to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. at 688. In determining whether the defendant has established that counsel’s performance was constitutionally deficient, the court should keep in mind that “counsel’s function ... is to make the adversarial testing process work in the particular case.” Id. at 690. “Counsel has a duty to make reasonable investigations.” Id. at 691. Moreover, the defendant must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U. S. 91, 101 (76 SC 158, 164, 100 LE 83) (1955).’ Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).” Wilson v. State, 199 Ga. App. 900, 901 (1) (406 SE2d 293) (1991).

“ ‘The burden is on the defendant to establish his claim of ineffective assistance of counsel. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ (Citation and punctuation omitted.) [Cit.]” Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

Appellant complains that defense counsel failed to inform him that the decision of whether he should testify was ultimately his, but counsel testified, and the court found, that she did inform defendant of this. The finding is supported by evidence and is not clearly erroneous. Minton v. State, 205 Ga. App. 430, 432 (2e) (422 SE2d 300) (1992). Appellant has not overcome the presumption that counsel’s advising him not to testify would have been reasonable trial strategy. Bridges v. State, 205 Ga. App. 664, 665 (2) (423 SE2d 293) (1992).

Appellant argues that trial counsel did not fully investigate and prepare the case. The court found that counsel thoroughly investigated the case, and the evidence supports it.

Appellant charges counsel with numerous omissions, such as failure to develop evidence of his prior medical history; question his brother-in-law as to the crime charged; fully interview his mother, wife, and sister concerning their knowledge of the crime charged; obtain and analyze doctors’ reports concerning M. B.; and present evidence of letters written by M. B.

Counsel testified that she was aware of appellant’s prior medical history, as well as doctors’ reports concerning M. B., but that this evidence was not helpful to the defense. At trial, counsel did question appellant’s brother-in-law as to the crime charged. Based upon their testimony at the hearing on appellant’s motion for new trial, it is speculation to suggest that the testimony of appellant’s mother, sister or wife would have resulted in appellant’s acquittal. Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990). Counsel testified that in her professional opinion the letters written by M. B. were inadmissible.

Appellant also complains of counsel’s failure to question the pastor of his church concerning the fact that he had spoken to G. K. as to her molestation charge and that she had vacillated in her accusations against him. Although counsel testified at the hearing on appellant’s motion for new trial that as best she could remember the pastor had made that statement to her, the trial transcript shows that counsel called the pastor as a defense witness because the third girl, who was also a member of appellant’s church, had denied her accusations against appellant.

The trial court’s conclusion in this case that appellant was afforded effective assistance of counsel was not clearly erroneous and therefore is upheld. Karvonen v. State, supra.

6. Appellant’s challenge to the sufficiency of the evidence to support the verdict is unavailing under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith and Cooper, JJ., concur.

Decided October 13, 1993

Reconsideration denied October 29, 1993.

Virginia K. Jacobs, for appellant.

Glenn W. Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A93A1285.
    FISHER v. CLARENDON NATIONAL INSURANCE COMPANY et al.
    (437 SE2d 344)
   Andrews, Judge.

Fisher appeals the grant of summary judgment to Clarendon National Insurance Company (Clarendon), the liability insurer of his employer, and The Hartford, his personal insurance company, in the insurers’ suit for declaratory judgment regarding uninsured motorist coverage. Fisher also appeals the denial of his motion for summary judgment on the coverage issue.

1. In ruling on a motion for summary judgment, the opposing party is given the benefit of all reasonable doubt, and the court should construe all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Langford v. Royal Indem. Co., 208 Ga. App. 128 (1) (430 SE2d 98) (1993).

So viewing the evidence on the insurers’ motions, Fisher was employed by Bo-Mark Transport as a long distance driver. On the afternoon of October 3, 1989, Fisher was operating his fully loaded tractor trailer rig on Highway 278 in Columbia County on his way from South Carolina to Atlanta. He was not using nearby Interstate 20 because his rig was overloaded and he was going to drive around the interstate weigh station.

As he pulled onto four-lane Highway 278, he first noticed a black sports car in front of his rig. Fisher travelled behind the car for some distance until the highway changed from a four-lane to three lanes, one in each direction with a center passing lane. At this point, although there was no other traffic in front of it, the sports car slowed to approximately 20 mph.

When the two vehicles arrived at the next available passing lane in their direction, Fisher pulled his rig into the center lane to attempt to pass. As his rig gained speed, the car also began to gain speed until it was traveling at the same speed as the rig, adjacent to the rig’s rear tandem. At this point, Fisher was nearing the end of the passing zone and he began to pull to the right to force his way back into the lane of travel.

The car then backed off and followed the rig to the next passing lane, at which point the car began to pass until it came adjacent to Fisher’s window, which was closed. There were two occupants in the car, but Fisher was able to see the driver’s arm come across the passenger and shots were fired into his cab. One bullet shattered the window, entering his left arm and then his chest, causing serious injury. Another slug was found in the driver’s door. The perpetrator was never apprehended. Other than the bullets, no contact occurred between the rig and the car.

Fisher was able to pull the rig to the side of the road and stop it. He flagged down a motorist and asked him to contact police and then went to a house nearby where Ms. Whitaker opened the door to find him bleeding profusely. He told her what had happened and she called authorities and attempted to stem the bleeding until they arrived.

2. “OCGA § 33-7-11 (b) (2) provides that ‘in order for the insured to recover under the (uninsured motorist) endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured,’ except where ‘the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.’ ” Nat. Surety Corp. v. O’Dell, 195 Ga. App. 374 (393 SE2d 504) (1990).

While the insurer and insured may contract for broader coverage than that provided by the statute, the policy must at least provide the coverage mandated by the statute. Martin v. Chicago Ins. Co., 184 Ga. App. 472, 473 (361 SE2d 835) (1987). Such coverage includes the intentional acts of third parties as an “accident” if the remaining criteria are met. USAA Property &c. Ins. Co. v. Wilbur, 207 Ga. App. 57, 58 (427 SE2d 49) (1993); Martin, supra at 473. The two policies here provide the minimum coverage.

Fisher’s arguments are, in the alternative, 1) that Ms. Whitaker corroborates his version of the incident, doing away with the necessity of contact between the vehicles; 2) that the bullet was a “phantom vehicle”; and 3) the act of firing from the car was “use of an uninsured vehicle.”

(a) Fisher’s argument is that Ms. Whitaker’s description of his condition and what he told her about the accident are part of the res gestae and are sufficient to corroborate his claim, absent physical contact between the vehicles.

The res gestae evidentiary rule, however, does not supply the “eyewitness” required by the statute. “Contrary to plaintiff’s contention otherwise, it is now well-settled that the corroboration requirement set forth in OCGA § 33-7-11 (b) (2) can only be met by the testimony of an eyewitness to the occurrence and not by circumstantial evidence, including statements given by the plaintiff to police, testimony of the plaintiff . . . and/or physical damage to the plaintiff’s automobile. [Cits.]” Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501, 502 (431 SE2d 147) (1993). While she could testify to the aftermath, Ms. Whitaker did not see the other vehicle and this is insufficient corroboration. Nat. Surety Corp. v. O’Dell, supra at 375; Hoffman v. Doe, 191 Ga. App. 319, 321 (381 SE2d 546) (1989).

(b) Assuming without deciding that the incident here can be said to have arisen from the operation, maintenance, or use of the uninsured motor vehicle as required by the two policies and Georgia law, this still does not answer the question of whether the bullet entering the rig from the car was “physical contact” between the vehicles for purposes of uninsured motorist coverage.

For this position, Fisher relies on an admitted extension of the rationale of Ins. Co. of N. America v. Dorris, 161 Ga. App. 46, 48 (288 SE2d 856) (1982). There, two pickup trucks met and passed. As they did, the mirrors attached to the side of each struck the other. Spears stopped to examine the damage and the other driver returned to the scene where an argument ensued, resulting in the unidentified driver pointing a pistol at Spears. Spears jumped into his truck and, with Dorris as his passenger, sped away. The unidentified driver pursued, firing shots, some of which hit Spears’ pickup. This pursuit resulted in Spears wrecking his truck and Dorris was injured in the wreck.

Now Justice Carley, writing for this court, concluded that the unidentified driver’s pursuit of Spears and Dorris was such as to conclude that the injury to Dorris “arose from,” “had its origins in,” “grew out of” or “flowed from” the unidentified assailant’s use of the truck and that “[i]t was because of the physical contact between the mirrors on the respective trucks that the entire incident began.” Id. at 49 (2).

No case since has extrapolated from this case to find that a projectile launched from the uninsured car which strikes the victim’s car is the required physical contact between the vehicles. We decline to do so here. This is an issue more appropriately addressed by the legislature or the contracting parties. Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987); Langford, supra at 128, 130 (3c).

Decided October 14, 1993

Reconsideration denied October 29, 1993

Thomas M. Hunter, for appellant.

Glover & Blount, Percy J. Blount, Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Sharon R. Blair, for appellees.

Judgment affirmed.

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

       The accident involved a “phantom vehicle,” allowing Fisher’s claim for recovery under the uninsured motorist coverage of his personal policy.

       See, e.g., USAA Property &c. Ins. Co. v. Wilbur, supra; First Fin. Ins. Co. v. Rainey, 195 Ga. App. 655 (394 SE2d 774) (1990); Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700, 701 (347 SE2d 688) (1986); Bennett v. Nat. Union Fire &c. Co., 170 Ga. App. 829, 830 (318 SE2d 670) (1984) which discuss this issue in the context of PIP no-fault coverage.

       This case was decided before the 1983 amendment which added OCGA § 33-7-11 (b) (2), allowing eyewitness corroboration in addition to physical contact. Martin v. Doe, 174 Ga. App. 156 (329 SE2d 291) (1985).


text:
    A93A1298.
    LLOYD v. WHITWORTH et al.
    (437 SE2d 636)
   Andrews, Judge.

Lloyd, an inmate at the Montgomery County Correctional Institute, appeals the trial court’s dismissal with prejudice of his complaint.

Lloyd filed this inmaté complaint on July 27, 1992, based on a disturbance at the correctional institute, in essence contending that officers were aware of threats made to his safety and failed to provide him reasonable protection.

The case was scheduled for trial on August 31, 1992 and on that date, Lloyd requested a continuance. The court granted the continuance and entered an order directing Lloyd to be ready to proceed to trial on October 26, 1992; the order stated that the case would be dismissed if Lloyd was unprepared.

On October 26, 1992, the case was called for trial. Lloyd, who was unrepresented by counsel on that date, requested that the court allow him to dismiss his action without prejudice. Defendants’ counsel requested that the dismissal be with prejudice and the court dismissed the action with prejudice.

Lloyd filed a motion for rehearing, claiming that the trial court’s refusal to allow his dismissal without prejudice and its entry of a dismissal with prejudice was erroneous. At the hearing on that motion, Lloyd testified that he had a written dismissal in his possession on October 26, 1992, but that because he was unrepresented and handcuffed, he was physically unable to file it. The trial court, citing Swartzel v. Garner, 193 Ga. App. 267 (387 SE2d 359) (1989), denied the motion on the basis that no written petition for dismissal was filed.

In two enumerations of error, Lloyd claims that the court erred in denying his petition to dismiss without prejudice and erred in denying his motion for rehearing/motion to set aside. We address first the question of whether the trial court was authorized to enter an order of involuntary dismissal with prejudice and thus properly denied Lloyd’s motion to reconsider. OCGA § 9-11-41 (b) provides that a defendant may move for dismissal of an action for failure of the plaintiff to prosecute or to comply with any order of the court. The statute continues: “[t]he effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section . . . does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.”

Decided November 1, 1993.

James L. Bass, for appellant.

Newton, Smith, Durden, Kaufold, & Rice, Wilson R. Smith, Sherri L. McDonald, Michael K. Dennard, for appellees.

Although we find that the trial court did not abuse its discretion in dismissing Lloyd’s case, the trial court did err in dismissing the case with prejudice. The trial court in essence dismissed the case for Lloyd’s failure to prosecute and for violating its order directing Lloyd to prosecute. Unlike in Kraft v. Abad, 262 Ga. 336 (417 SE2d 317)

(1992) , here the court did not go forward with the trial of the case, hear evidence and reach a judgment. In the instant case, the court simply dismissed the case as soon as it was apparent that the plaintiff was not prepared.

“Pursuant to OCGA § 9-11-41 (b), a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, therefore it follows that such a dismissal cannot be with prejudice. We remand this case to the trial court for entry of an order consistent with this opinion.” (Citations and punctuation omitted.) Allen v. Thompson, 198 Ga. App. 683, 684 (1) (402 SE2d 778) (1991); see also Health Images v. Green, 207 Ga. App. 455 (428 SE2d 378) (1993) ; Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253) (1990); Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984), aff’d 254 Ga. 265 (330 SE2d 596) (1985).

Because of our conclusion with respect to this enumeration, there is no need to address Lloyd’s claim that the trial court erred in refusing to allow him to voluntarily dismiss his action under OCGA § 9-11-41 (a).

Judgment affirmed in part and case remanded with direction.

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