text:
    74216.
    TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND et al. v. SCHENDEN.
    (356 SE2d 761)
   McMurray, Presiding Judge.

Plaintiff brought suit against defendants in the State Court of Hall County. The complaint was couched in two counts. In Count 1, plaintiff sought $157,045.42 against defendants pursuant to a policy of insurance. It also sought a penalty of 25 percent of the amount due, reasonable attorney fees and the cancellation of certain security instruments. In Count 2, plaintiff sought actual and punitive damages against defendant The Travelers Indemnity Company of Rhode Island (“Travelers”) under an intentional tort theory. The case was removed to the United States District Court. Defendant Travelers answered the complaint and plaintiff embarked upon discovery. In the meantime, plaintiff sought to have the case remanded to the State Court of Hall County. He was successful in this endeavor.

After the subsequent remand, plaintiff certified that defendants failed to file an answer in the State Court either before removal or after remand. He also certified that an answer was not timely filed in the United States District Court following removal. Based upon plaintiff’s certification, the trial court ruled that defendants were in default. It also determined that this “is a case for liquidated damages as to Count 1.” Accordingly, it awarded judgment to plaintiff in the amount of $157,045.42, plus costs, and it ordered that the security instruments in question be cancelled of record. An express determination pursuant to OCGA § 9-11-54 (b) was not made. No action was taken with regard to Count 2 of the complaint. Defendants appeal, enumerating error upon the entry of the default judgment. Held:

Decided April 28, 1987.

Oliver B. Dickins, Jr., for appellants.

Robert E. Andrews, for appellee.

The courts do not favor piece-meal review. Foley v. Shanahan, 133 Ga. App. 262 (1) (211 SE2d 367). “Where there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. OCGA § 9-11-54 (Code Ann. § 81A-154). In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) (Code Ann. § 81A-154) or there must be compliance with the requirements of OCGA § 5-6-34 (b) (Code Ann. § 6-701). Where neither of these code sections are followed as in this case, the appeal is premature and must be dismissed. Myers v. Mobil America Corp., 132 Ga. App. 331 (208 SE2d 169); Johnson v. Martin, 132 Ga. App. 813 (209 SE2d 256); Hancock v. Oates, 244 Ga. 175, 177 (259 SE2d 437).” Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677). See also Daniell v. Heyn, 169 Ga. App. 772 (315 SE2d 284).

Appeal dismissed.

Sognier and Beasley, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74352.
    DAVIS v. THE STATE.
    (356 SE2d 762)
   Deen, Presiding Judge.

The appellant, Billie Elzie Davis, was convicted of voluntary manslaughter on April 27, 1981. On December 2, 1986, the appellant filed an extraordinary motion for new trial based on newly discovered evidence, which was found to be without merit and dismissed by the trial court on December 4, 1986. The appellant then filed this direct appeal from that order. Appeals from orders denying extraordinary motions for new trial, when separate from an original appeal, are now discretionary appeals. OCGA § 5-6-35 (a) (7); Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985). Accordingly, this direct appeal is dismissed.

Decided April 28, 1987.

Billie Davis, pro se.

H. Lamar Cole, District Attorney, for appellee.

Appeal dismissed.

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


author: Carley, Judge.

text:
    73835.
    BYRD v. THE STATE.
    (356 SE2d 708)
   Carley, Judge.

Appellant was indicted for one count of aggravated assault. After a bench trial, appellant was found guilty but mentally ill at the time of the crime. See OCGA § 17-7-131 (b) (1) (D). He appeals from the conviction and sentence entered on the verdict.

Appellant’s sole enumeration is that the trial court erred in finding him guilty but mentally ill. The contention is that appellant should have been found not guilty by reason of insanity, in that he was acting under a delusional compulsion when he assaulted the victim. See OCGA § 16-3-3.

“ ‘[A] defendant’s sanity is presumed; a defendant has the burden of proving insanity by a preponderance of the evidence. . . . [Cit.]’ [Cit.]” Awtrey v. State, 175 Ga. App. 148, 150 (1) (332 SE2d 896) (1985). See also Adams v. State, 254 Ga. 481, 483 (1 b) (330 SE2d 869) (1985). “To support a finding that a defendant is not guilty of a criminal act under OCGA § 16-3-3, it must appear: (1) that the defendant was laboring under a delusion; (2) that the criminal act was connected with the delusion under which the defendant was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act. [Cit.]” Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). Assuming without deciding that appellant met his burden of proof as to the first two elements of a delusional compulsion defense, it is clear that he did not meet his burden to prove that his delusion was as to a fact which, if true, would have justified the assault. See generally Graham v. State, 236 Ga. 378, 379-382 (223 SE2d 803) (1976). Compare Stevens v. State, supra.

The requirement that the delusional compulsion must justify the action in question is not, as appellant asserts, applicable only in homicide cases. The delusional compulsion insanity defense is not available only in cases of homicide and, consequently, the elements necessary to prove that defense are in no way dependent upon the death of the victim. See generally Biddy v. State, 138 Ga. App. 4, 6 (1) (225 SE2d 448) (1976) (aggravated assault). The record in this case clearly shows that appellant did not carry his burden of proof under OCGA § 16-3-3 and that the finding of guilty but mentally ill was authorized. Compare Stevens v. State, supra.

Decided April 14, 1987

Rehearing denied April 29, 1987

Stanley M. Baum, for appellant.

Lewis R. Slaton, District Attorney, A. Thomas Jones, Benjamin H. Oehlert III, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    74143.
    AUBREY SILVEY ENTERPRISES, INC. v. BOHANNON et al.
    (356 SE2d 693)
   Beasley, Judge.

We granted employer Aubrey Silvey Enterprises, Inc. interlocutory review of the denial of its motion for summary judgment in a suit for personal injuries stemming from a collision involving its employee Futrell. The sole basis for any potential liability of the employer is the claim that the collision occurred within the employee’s scope of employment. The trial court determined that there was a genuine issue of material fact regarding Futrell’s scope of employment which required resolution by the jury. The employer urges that there is no such factual dispute and that the court erred in its construction of certain of Futrell’s testimony on summary judgment.

Construing the evidence most strongly against the movant employer as we must and giving respondents the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence, Jacobsen v. Muller, 181 Ga. App. 382, 384 (4) (352 SE2d 604) (1986), the record on summary judgment showed the following: Futrell was employed by Aubrey Silvey Enterprises as a mechanic. The day of the collision, Futrell spent the morning ordering parts which he planned to pick up at some later time. Futrell took his lunch break around noon that day and planned to pick up some flowers for his wife and then meet her for lunch. On his way to the florist, he was involved in the subject collision; he was driving his own truck at the time. It is undisputed that the company’s employees, including Futrell, often used their lunch hours to run business errands, used their own vehicles for business purposes, and accordingly were compensated for gas mileage for their vehicles’ business use.

In a statement to the employer’s insurer, Futrell stated that his only plans for his lunch break on the day of the collision were to pick up the flowers and meet for lunch. He stated that he had forgotten all about the parts he had ordered that morning. In a later deposition, he stated that although he was not thinking of picking up the parts at the time of the collision, he probably would have remembered to pick them up had the collision not occurred.

The employer argues that this deposition testimony constituted unexplained contradiction which the trial court should have resolved unfavorably to Futrell and that under the remaining evidence, it is entitled to judgment in its favor as a matter of law. Appellee plaintiffs argue that there is no unexplained contradiction in the employee’s testimony, and that such evidence coupled with the undisputed facts that the employee often ran business errands at lunch and used his own car for this is enough to create a jury question as to whether or not Futrell was acting within the scope of his employment at the time of the collision.

To begin with, the trial court’s order is silent on its construction of the evidence in question, but a careful look at it does not show contradiction, explained or unexplained, which on summary judgment would be controlled by the analysis in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). It is clear from reading both the statement and the deposition that at the time of collision Futrell was on his way to accomplish a personal mission, i.e., going to the florist to get flowers for his wife and then have lunch with her, and that he was not on his way to pick up the parts for the employer and did not even have a present intent to do so after the personal mission was completed.

Appellees assert that Futrell’s mission had, at the very least, a joint purpose, and that the employer may therefore be liable. But, “ ‘ “[t]o hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; . . .” (Cit.) “The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. (Cit.)” (Cit.)’ . . . (Cit.)” Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). In Curtis, the focus was on the employee’s immediate destination at the time of the accident, rather than the eventual destination.

Even if Futrell intended to pick up the parts at some point in time, the fact remains that at the time of the impact he was in the middle of a personal pursuit. Appellees cite authority that “ ‘ “[t]he theory that one may be a servant one minute, and the very next minute step aside and act in his individual capacity, and then the next minute step back into his capacity as a servant is too refined a distinction.” ’ ” McCranie v. Langdale Ford Co., 176 Ga. App. 281, 283 (335 SE2d 667) (1985), citing Miller v. Honea, 163 Ga. App. 421 (294 SE2d 629) (1982). But these cases are easily distinguishable from the present situation in that both of the incidents for which relief was sought occurred on the premises of the workplace, making it difficult to draw the “fine distinction” between servant and non-agent. This is not a case of an on-the-premises tort.

Decided April 9, 1987

Rehearings denied April 29, 1987

Robert L. Berry, Jr., Terri S. Patterson, for appellant.

David H. Tisinger, Robert H. Sullivan, Thomas E. Greer, Jeffrey S. Gilbert, Gerry E. Holmes, Michael L. Murphy, for appellees.

Construing the evidence most favorably for respondent, appellees, we are compelled to find that at the time of impact, Futrell was engaged in a personal mission unrelated to his employment. The fact that he may have later remembered to attend to the business purpose of picking up the parts or that before setting out on the lunch hour he may have thought about stopping to do the errand at some point during the hour does not alter this. Futrell was not acting within the scope of his employment at the time of collision as a matter of fact. Therefore the employer was entitled to judgment in its favor as a matter of law.

Judgment reversed.

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


text:
    74369.
    SMITH v. THE STATE.
    (356 SE2d 723)
   Deen, Presiding Judge.

Appellant Willie Fred Smith was convicted of sexually molesting a seven-year-old girl. At trial the prosecution introduced certified copies of two rape convictions dating from more than twelve years previously. On appeal Smith enumerates as error the introduction of evidence of prior crimes without the defendant’s having “opened the door” by placing his character in issue. He also enumerates five additional errors. Held:

1. Prior to trial appellant filed a motion in limine that no evidence of prior sexual offenses be admitted at trial. After a hearing the motion was overruled, and the case proceeded to trial. The victim testified that on the night on which the incident allegedly occurred, she, her mother, the appellant, and several other adults and at least two other children attended a party at the appellant’s mother’s home. According to the victim, while she and two other children were asleep in a bedroom in separate beds, appellant came in alone and awakened her, instructed her to spread her legs, and then lay on top of her and ejaculated upon her. There was testimony that, several days after the alleged incident, the victim developed a vaginal discharge, and her mother took her to a nearby medical facility for diagnosis and treatment of the discharge. Evidence was offered that the discharge tested positive for gonorrhea; further evidence was adduced that appellant was asked to undergo a laboratory test for gonorrhea and that he, too, tested positive for the infection.

The State introduced copies of two 1973 convictions on rape charges, to which the appellant admitted having pled guilty. A former Warner Robins Police Department detective testified that he had worked on the two 1973 cases which led to appellant’s being charged with raping two women on two separate occasions.

Under well-settled principles of law, evidence of prior crimes is generally inadmissible unless the defendant has placed his character in issue. OCGA § 24-9-20 (b). A recognized exception to this rule is that evidence of prior independent crimes may be introduced to show motive, intent, plan or scheme, identity, course of conduct. Dudley v. State, 179 Ga. App. 252 (345 SE2d 888) (1986). This exception is liberally construed where sexual offenses are involved, evidence of prior sexual offenses being admissible to show the defendant’s lustful disposition. Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978); Warren v. State, 95 Ga. App. 79 (97 SE2d 194) (1957). For evidence of prior crimes to be admissible for such purposes, two criteria must be met: (1) the defendant must be proven to have been the perpetrator of the prior crime or crimes, and (2) there must be sufficient similarity between the independent crime(s) and that being tried so that the proof of the former tends to prove the latter. French v. State, 237 Ga. 620 (229 SE2d 410) (1976). Moreover, the relevance of such evidence to issues on trial must outweigh its prejudicial effect. Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974); accord Campbell v. State, 234 Ga. 130 (214 SE2d 656) (1975). “If the evidence tends to show a general criminal propensity more than it tends to prove an issue in the case, it should not be introduced. . . .” Carroll v. State, 143 Ga. App. 796, 797 (240 SE2d 197) (1977).

In the instant case the trial transcript indicates that appellant did not place his character in issue prior to the introduction of the 1973 rape convictions, and that no other evidence of prior illicit sexual activity involving the defendant/appellant with either adults or children was introduced. No evidence was offered regarding any specific similarities between the offense charged below and those of which appellant had previously been convicted; the only point in common was that those offenses, like that charged below, involved impermissible sexual contact. Moreover, the lapse of more than twelve years between the prior sexual activity and the alleged molestation would not strongly bolster any allegation of a “lustful disposition.”

The passage of time would not alone mandate reversing the conviction in the instant case, however. This court has held that crimes committed as long as eighteen or more years before the offense charged can be admissible for the stated purpose. See, e.g., Whited v. State, 173 Ga. App. 435 (326 SE2d 803) (1985) (defendant in child molestation case convicted of same offense sixteen years previously); Cox v. State, 173 Ga. App. 422 (326 SE2d 796) (1985) (testimony by older daughters that defendant accused of molesting younger daughter had molested them seventeen to twenty-two years earlier); Copeland v. State, 160 Ga. App. 786 (287 SE2d 120) (1981) (evidence that defendant had raped twelve-year-old daughter [the victim’s mother] thirteen years before raping the current victim, his twelve-year-old daughter/granddaughter).

In Campbell v. State, supra, the appellant enumerated as error the admission into evidence of a crime committed seven years previously; he did not challenge the admission of a crime committed four years previously. The Supreme Court, in noting the similarities and differences in the prior crimes and the offense being tried, observed at 132: “The main bar to admission [of the evidence of the earlier prior crime] would seem to be the lapse of time, seven years, between the two incidents.” The court went on to note: “Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, it is not wholly determinative.” Id. The Supreme Court held that, despite the time lapse, the similarity between the crime being tried and the two prior crimes committed, respectively, four and seven years earlier, rendered the evidence admissible. Id. See also Gay v. State, 179 Ga. App. 430, 432, et seq. (346 SE2d 877) (1986); Pope v. State, 178 Ga. App. 148, 149 (342 SE2d 336) (1986). In Mackler v. State, 164 Ga. App. 874 (298 SE2d 589), cert. denied 250 Ga. 840 (1983), the defendant was convicted of molesting a five-year-old child; evidence of a prior rape and a solicitation of sodomy was admitted at trial. On appeal the court held: “Although there is no indication that either of the prior sexual offenses at issue in the case . . . involved children, they were nevertheless admissible to establish the appellant’s lustful disposition . . . The fact that he had twice been convicted of sexual offenses within the previous four and one-half years was certainly relevant, under these circumstances, to show that he had a lustful disposition and thereby to corroborate the testimony. . . .” Id. at 875, 876.

In the light of the cited cases and many other Georgia cases holding similarly, we find that the trial court’s admission of evidence of a prior sexual offense was proper. Appellant’s first enumeration is not meritorious.

Decided April 16, 1987

Rehearing denied April 29, 1987

Harry J. Fox, Jr., for appellant.

G. Theron Finlayson, District Attorney, for appellee.

2. After careful review of the entire record in the instant case, we find appellant’s second, third, fourth, fifth, and sixth enumerations of error also to be without merit.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    74175.
    HIERS v. THE STATE.
    (356 SE2d 763)
   Birdsong, Chief Judge.

Duane L. Hiers was convicted of three bad check offenses and sentenced to eight years probation, restitution, and a fine. He brings this appeal urging error in the denial of his motion for a directed verdict of acquittal. Held:

The basis of the motion for directed verdict of acquittal was an asserted failure of proof to show that the three checks admittedly issued by Hiers were for a present consideration, an essential element of the crime of passing a bad check. OCGA § 16-9-20 (a). The facts adduced by the State established that Hiers was a wholesale purchaser of produce and particularly fresh tomatoes. For a period of several years, Hiers purchased tomatoes from one Miller who maintained a business at the State Farmers’ Market in Forest Park. Hiers initially would obtain produce in effect on credit, sell the produce and pay Miller for the purchase from the proceeds. However by the spring of 1984, Hiers was experiencing a cash flow problem and was substantially in arrears in payments for tomatoes purchased from Miller. Miller stopped advancing tomatoes to Hiers and required Hiers to pay for produce at the time of delivery from Miller to Hiers. On June 11, 1984, Hiers purchased tomatoes valued at $1,200. Hiers issued a check in that amount to Miller. On June 15, Hiers purchased produce valued at $1,417 and issued Miller a check in that amount. On June 19, Hiers purchased produce valued at $1,164 and issued his check in the amount of $1,164. Mrs. Miller, who kept books for her husband, took all three checks to the bank and cashed them. Because Hiers was delinquent and in arrears in several earlier purchases, Mrs. Miller applied the cash received from the three sales to satisfy the earlier delinquent accounts and the remainder to satisfy the most recent purchases to the extent the cash allowed. The bank subsequently advised Miller that all three checks had been returned marked insufficient funds. Hiers was informed of the return on the three checks. He made certain cash payments designed to reduce the account balance but has never redeemed the three checks.

Decided April 29, 1987.

J. Dunham McAllister, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Hiers argued before the trial court and now to this court that because Mrs. Miller used the proceeds of the three checks to satisfy a pre-existing indebtedness, the checks were not issued for a present consideration. Though he concedes a civil indebtedness, he contends there is no evidence of a criminal intent to pass a bad check.

We note that Hiers makes no contention that the bank erred or that he fully expected the checks to clear upon presentment. His sole contention is that the checks were not presented to the Millers for a present consideration. See Griffith v. State, 249 Ga. 19 (287 SE2d 187); Bowers v. State, 248 Ga. 714 (285 SE2d 702). We find those cases to be inapposite. In those cases, it is clear that the debtor was aware as was the creditor that the transaction creating the debt was one occurring in the past and the subsequent payment was to extinguish a pre-existing indebtedness. In this case, Hiers purchased tomatoes and other produce on three separate occasions. A bill was presented to him at the time of each purchase stating the exact amount of the charge for the produce. He had been made aware that because of his past delinquencies, cash payment was to be contemporaneous with the purchase. On each occasion, Hiers paid with a check in the exact amount of the purchase. What Miller decided to do with the payment after the transaction had been executed was of no consequence to Hiers. It is certain that Mrs. Miller could have applied the entire amount to each purchase thus extinguishing each debt as incurred. Likewise the money could have been spent for any purpose decided by the Millers. But as between Miller and Hiers, produce was sold for a set price and that price was paid. It is clear therefore that the three checks in question were issued for a present consideration. The trial court therefore did not err in denying the motion for directed verdict of acquittal upon that ground. See Davis v. State, 234 Ga. 730, 732 (218 SE2d 20); Russell v. State, 155 Ga. App. 555 (271 SE2d 689).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Beasley, Judge. Benham, Judge,

text:
    73175, 73176.
    GOODWIN v. RICHMOND (two cases).
    (356 SE2d 888)
   Beasley, Judge.

Appellant filed a medical malpractice suit against Atlanta SurgiCenter, Inc., and appellee Dr. Alan Richmond. On August 25, 1985, Dr. Richmond moved for summary judgment. The motion was served on appellant who made no response thereto. Pursuant to Rule 6.3 of the Uniform Rules for Superior Courts (253 Ga. 801, 817) (1985), appellee requested a hearing on his motion, and it was scheduled for October 21, 1985. Notice of the date of the hearing was published in both the September 20 and October 18 editions of the official organ of Fulton County, the Fulton County Daily Report. No notice of a hearing date was served on appellant pursuant to OCGA § 9-11-6 (d). On October 21, the trial court heard oral argument presented on behalf of appellee without the presence of appellant’s counsel. Noting that no responsive material had been filed on behalf of appellant, the trial court granted summary judgment in favor of appellee. After the entry of judgment, appellant filed a motion to set aside the judgment, which the trial court denied. Appellant appeals from both orders of the trial court: Case No. 73175 is an appeal from the order granting summary judgment to appellee, and Case No. 73176 is an appeal from the order denying the motion to set aside the judgment.

1. The direct appeal in Case No. 73176 is from an order denying a motion to set aside the judgment. Inasmuch as appellant has not followed the statutorily prescribed procedure for appealing such an order (see OCGA § 5-6-35 (a) (8)), that appeal must be dismissed. Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26) (1986).

2. Appellant urges this court to find error in the grant of summary judgment because she had no actual notice of the hearing as required by OCGA § 9-11-6 (d). Although we have held on numerous occasions that appearance of the trial date in the official organ of the county constitutes sufficient notice of a trial date (Spyropoulos v. John Linard Estate, 243 Ga. 518 (255 SE2d 40) (1979); Automated Med. Svc. v. Holland, 166 Ga. App. 57 (1) (303 SE2d 127) (1983); Rockmart Bank v. Beck, 129 Ga. App. 457 (199 SE2d 907) (1973)), the same is not true when the hearing date in question pertains to a motion for summary judgment. OCGA § 9-11-6 (d). The cited cases concerned notice of trial, controlled by OCGA § 9-11-40 (c), which refers only to notice. Notice of a hearing on a motion, however, is required by OCGA § 9-11-6 (d) to be served. Service of such notice is controlled by OCGA § 9-11-5 (b), which provides specific means by which service may be accomplished and does not make provision for service by publication. We hold, therefore, that publication of notice of a motion hearing date is not, by itself, sufficient compliance with § 9-11-6 (d). See Profit v. Leasing Systems, 170 Ga. App. 364 (2) (317 SE2d 341) (1984). In the present case, appellant contends she was not served with notice of the hearing date and the record contains no evidence to the contrary. We, therefore, hold that the trial court erred in conducting a hearing on appellee’s motion for summary judgment in the absence of proper service of notice of the hearing on appellant.

It is urged that any error was harmless under the circumstances of this case because appellant never registered any opposition to appellee’s motion for summary judgment.

Since plaintiff did not have legal notice of the hearing date for the motion for summary judgment, she was deprived of her statutory right to file opposing affidavits up to one day before that hearing. OCGA §§ 9-11-56 (c) and 9-11-6 (d). Lack of notice of the hearing date meant that nothing triggered notice to her of her cut-off date for filing opposing affidavits. Therefore, not surprisingly, when the trial judge heard the motion for summary judgment, there were no opposing affidavits.

Dr. Richmond’s affidavit in this medical malpractice case had been served August 19 and the motion was heard and decided on October 21. The post-judgment record in this case shows that plaintiff was in the process of attempting to obtain medical expert affidavits. Once she learned of the summary judgment, it became futile as well as wasteful of time and money resources to pursue these affidavits, unless she first obtained relief from the judgment.

The ruling on the motion for summary judgment was premature, in that the required notice has not yet been given so that it could be held in accordance with statutorily prescribed procedure. Hence, the judgment should be reversed for reconsideration after due notice and the opportunity to file opposing affidavits. Whether appellant should be permitted to also present oral argument, in the absence of the 30-day response required by Uniform Rules 6.2 and 6.5 for the Superior Courts, 253 Ga. 816, 817 (1985), is not necessary to decide.

Judgment reversed in Case No. 73175. Appeal dismissed in Case No. 73176.

Deen, P. J., McMurray, P. J., Carley, Sognier and Pope, JJ., concur. Birdsong, C. J., and Benham, J., dissent. Banke, P. J., not participating.

Benham, Judge,

dissenting.

While I fully concur in the dismissal of the appeal in Case No. 73176,1 find the trial court’s action upon which the majority bases its reversal in Case No. 73175 to be harmless error under the circumstances of this case.

Appellant never registered any opposition to appellee’s motion for summary judgment. While appellant had been served with a copy of the motion and was aware that a hearing had been requested, she failed to file a response to appellee’s motion for summary judgment within 30 days as required by Rule 6.2 of the Uniform Rules for Superior Courts. Appellant now asks this court to find that Rule 6.2 is inconsistent with the following pertinent language of OCGA § 9-11-56 (c): “The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” It is appellant’s contention and the majority’s position that OCGA § 9-11-56 (c) allows an opposing party to respond to a motion up to the day before the hearing and that, since appellant had no notice of the hearing, she was prevented from filing a response. I disagree with her interpretation of the statute and with the conclusion based thereon.

OCGA § 9-11-56 (c) allows for the filing of affidavits up to the day before the hearing. The Civil Practice Act does not contain a deadline for the submission of a response to a motion for summary judgment. Rule 6.2 fills that void by mandating that “unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response . . . not later than 30 days after service of the motion.” Therefore, appellant was required to file a response to appellee’s motion within 30 days unless the trial judge ordered otherwise. If appellant had wished to file affidavits in opposition to appellee’s motion, she would have had the opportunity to serve those affidavits upon appellee until the day before the oral hearing. OCGA § 9-11-56 (c). Lack of service of notice of the date of the oral hearing, however, in no way affected appellant’s duty under Rule 6.2 to respond to appellee’s motion not later than 30 days after its service. I emphatically note, however, that failure to respond to a motion in compliance with Rule 6.2 is not a consent to judgment or an acknowledgement that the movant has borne the burden of showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). The trial court must still make that finding from the evidence of record.

The record in this case supports such a finding and appellant failed, both on the initial consideration of the motion and on consideration of her motion to set aside the judgment, to proffer any material which would have required a different result. Therefore, the error in conducting the hearing on appellee’s motion for summary judgment without service on appellant of notice of the date of the hearing was harmless, the entry of summary judgment for appellee is fully supported by the record, and the trial court’s ruling should be affirmed.

Decided April 3, 1987

Rehearing denied April 30, 1987

Charles M. Leverett, for appellant.

Philip C. Henry, Robert D. Ingram, James M. Poe, Michael G. Frick, Jennie E. Rogers, Alan Nicholson, Elaine Whitehurst, for appellee.

I respectfully dissent from its reversal.


author: Sognier, Judge.

text:
    73644.
    ROOSE v. THE STATE.
    (356 SE2d 675)
   Sognier, Judge.

Roose appeals from his conviction of aggravated child molestation.

1. In appellant’s first two enumerations of error he contends the trial court erred by admitting two photographs into evidence as State exhibits, and by instructing the jury that the exhibits constituted evidence of the defendant’s conduct with reference to similar transactions about the same time as the offense charged. As to the latter contention, appellant made no objection to the court’s limiting instruction at the time the photographs were admitted into evidence, and this court will not consider questions raised for the first time on appeal. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).

The photographs in question depict appellant and another male, nude from the waist up, lying on a bed kissing each other. Appellant contends this evidence does not fall within any exception to the general rule that evidence of other crimes or similar transactions is inadmissible at the trial of the crime charged, even though it be a crime of the same sort. See Johnson v. State, 242 Ga. 649, 652-653 (3) (250 SE2d 394) (1978). We agree.

Appellant was charged with aggravated child molestation by committing an act of oral sodomy on a twelve-year-old boy. The State presented no evidence to establish when or where the photographs in question were taken, and presented no evidence to establish that the male with appellant in the photographs was a minor. Further, one man kissing another man does not constitute sodomy, which is defined in OCGA § 16-6-2 as any sexual act involving the sex organs of one person and the mouth or anus of another. Thus, the scenes depicted in the photographs did not constitute a crime or a transaction similar to the offense charged in this case.

The State contends that the photographs were admissible to show the “lustful disposition” of appellant. It is true that where matters dependent upon a person’s state of mind are involved as a material element in a particular criminal offense for which the defendant is on trial, and the defendant has engaged in a course of conduct at or about the same time the act in question was committed and the transaction is such as to illustrate the state of the defendant’s mind on the subject involved, proof of a similar transaction may be received. Thomas v. State, 176 Ga. App. 53, 55 (3) (335 SE2d 135) (1985). See also Walraven v. State, 250 Ga. 401, 408 (4(b)) (297 SE2d 278) (1982). In the instant case, however, appellant’s state of mind was not a material element of the offense charged, the incidents depicted were not of the same or similar nature, and there was no evidence that the incidents depicted in the photographs occurred at or about the same time as the offense charged. Hence, the rule enunciated in Thomas, supra, has no application here. We are aware that the exception to the general rule that evidence of similar transactions is not admissible has been applied liberally in cases involving sex offenses. Johnson, supra at 653. However, this does not mean that evidence of similar incidents is always admissible in such cases; there must also be some logical connection or similarity between the prior incident and the offense charged. Larkins v. State, 230 Ga. 418, 420-421 (2) (197 SE2d 367) (1973); Wimberly v. State, 180 Ga. App. 148, 149 (348 SE2d 692) (1986). For the foregoing reasons, it was error to admit the photographs into evidence, since the only relevance of such evidence was to show appellant’s bad character or criminal propensity. Walraven; Wimberly, supra. However, we find any error in admitting the two photographs into evidence harmless under the facts of this case. The primary issue in this case was one of credibility; i.e., the victim testified that appellant committed the acts alleged and appellant denied committing them. However, the victim’s testimony was corroborated partially by other testimony, and admissible evidence of a similar offense was introduced by the State. Thus, we find it highly probable that any error in admitting the photographs into evidence did not contribute to the verdict in this case. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Munn v. State, 179 Ga. App. 357, 358 (2) (346 SE2d 128) (1986).

2. In appellant’s last two enumerations of error he contends the trial court erred by allowing the State to introduce into evidence a video cassette recording and by allowing the State to play the entire tape for the jury, rather than playing only that portion of the tape showing appellant committing an act of oral sodomy on a fifteen-year-old boy. The boy involved testified that appellant committed the act at a home in Atlanta and he was aware the act was being filmed on a video cassette recorder. Appellant’s contentions regarding the admission and showing of the VCR tape are without merit. Even assuming it was error to admit the VCR tape in evidence, the boy involved in the act of sodomy shown testified, without objection, that he participated in the sexual act depicted on the VCR tape. Proof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. Davis v. State, 167 Ga. App. 701, 703 (3) (307 SE2d 272) (1983).

Decided April 8, 1987

Rehearing denied April 30, 1987.

Alex L. Zipperer III, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    73834.
    LIFE INSURANCE COMPANY OF GEORGIA v. HELMUTH.
    (357 SE2d 107)
   Sognier, Judge.

Mary B. Helmuth, as beneficiary of an insurance policy on the life of her deceased daughter, Kathryn Helmuth Cogan, brought suit against the insurer, Life Insurance Company of Georgia, seeking the $25,000 face value of the policy plus $25,000 additional accidental death benefits. The trial court entered judgment on the jury verdict in favor of Helmuth for $50,000 and the insurance company appeals.

Appellant issued the insurance policy in question here in October 1984 based on a written application, signed by Cogan in August 1984 and submitted by appellant’s agent, Danny Rogers. The application had been filled out by Rogers in the presence of Cogan and appellee with the answers Cogan gave in response to Rogers’ questions on the application. Cogan was killed in January 1985 when an automobile she was driving crashed into a tree.

1. Appellant contends the trial court erred by denying its motion for a directed verdict as to the entire claim of appellee. Appellant asserts there were misrepresentations in the application that were material to the risk and, therefore, were sufficient to void the policy. We agree.

It is uncontroverted that the application for insurance misrepresented, first, that Cogan had been treated by only one doctor (for a benign cyst) in the five years prior to the application, when in fact she had received treatment from numerous doctors and, secondly, that Cogan had never received treatment or medical advice for alcohol or drug use, when in fact she had been treated and hospitalized several times for alcohol and drug use. Thus it is beyond cavil that Cogan suffered from conditions not disclosed in the application and that had these conditions been reported, appellant would not have issued the policy in question.

In view of the second misrepresentation, we need not address appellee’s argument in regard to the first alleged misrepresentation that appellant was estopped from denying coverage because of the action of its agent, Rogers, in preventing Cogan from disclosing other treating physicians. Nor need we reach appellant’s argument that the clear limitation on Rogers’ authority to waive correct answers (which appeared on the signature page of the application) prevented Cogan from relying on Rogers’ alleged direction to omit all but the “name of the last doctor she saw.”

Turning to the dispositive second misrepresentation, the application, in question 18c, inquired whether the applicant — Cogan — had “[e]ver received treatment or medical advice because of alcohol or drug use.” Cogan’s “no” answer to this clear and simple question was incorrect since the evidence is undisputed she had been treated more than once for both alcohol and drug abuse. Cogan’s negative response to question 18c could not have been affected by Rogers’ alleged instruction in regard to the first misrepresentation, nor is such an argument raised here. Although appellee asserts that Rogers did not ask Cogan question 18c but had paraphrased it by inquiring whether Cogan was an alcoholic, there is no suggestion in the record that Rogers actively prevented Cogan from seeing or reading the questions or the responses recorded by Rogers on the application, before Cogan signed the application. Nor is there any suggestion in the record that any changes were made on the application after Cogan signed it. “It should be observed that the applicant is bound by the answers recorded on the application, whether written by [her] or by the agent, absent any fraud on the part of the agent in deceiving [her] as to what was in fact written down as answers, or in preventing [her] from reading and ascertaining what was written down. [Cits.]” (Emphasis omitted.) Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 622 (1) (174 SE2d 570) (1970). “We can find no fraud on the part of the agent as against [Cogan]. The answers were written in before [Cogan] took the application for reading and signing, and [she] signed the application with the answers as entered thereon. No deception is claimed as to what was in fact written down. No change was made in the answers after [she] signed the application. . . . Nothing appears as to why [she] could not have taken all the time [she] wished to take in reading it, or that [she] was in any way prevented from doing so.” Id. at 623 (1).

Decided April 13, 1987

Rehearing denied April 30, 1987

Bobby T. Jones, for appellant.

William E. Callaway, Jr., William J. Neville, Jr., Benjamin P. Brinson, for appellee.

There is no evidence that Rogers was correctly informed of Cogan’s treatment for alcohol and drug use and then fraudulently or negligently inserted the incorrect response. Thus, Stillson v. Prudential Ins. Co., 202 Ga. 79 (42 SE2d 121) (1947) and Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (281 SE2d 583) (1981), relied on by appellee, are factually inapposite.

“ ‘In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the “any evidence” test. [Cits.]’ [Cit.]” Summerour v. Saint Joseph’s Infirmary, 160 Ga. App. 187, 188 (286 SE2d 508) (1981). Even viewing the evidence in the light most favorable to appellee, as required, see generally Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 874 (2) (339 SE2d 266) (1985), the conclusion is inescapable that Cogan concealed information about her treatment for drug and alcohol use. Further, the evidence is uncontroverted that this nondisclosure was material to the risk and thus appellant was entitled to void the policy under the provisions of OCGA § 33-24-7 (b). See Jefferson Standard &c. Co. v. Bridges, 147 Ga. App. 5, 7 (5) (248 SE2d 5) (1978). Because appellee was not entitled to recover if the policy was void, the trial court erred by denying appellant’s motion for directed verdict as to appellee’s claim. Id. Therefore, we reverse the trial court’s judgment and direct that judgment be entered below in accordance with appellant’s motion. OCGA § 9-11-50 (e).

2. In view of our decision in Division 1, appellant’s other enumerations of error need not be considered.

3. Although appellee denominates one section of her brief a “cross appeal,” the record reveals that no Notice of Cross Appeal was ever filed. We therefore need not address this contention. See OCGA §§ 5-6-38 (a); 5-6-48 (b) (1).

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    73847.
    CLARK v. THE STATE.
    (357 SE2d 109)
   Benham, Judge.

Although charged with murder, felony murder and aggravated assault, appellant was convicted of voluntary manslaughter on March 26, 1986. He filed a motion for new trial which was overruled on June 2, 1986. In his notice of appeal, originally filed in the Supreme Court on August 29, 1986, he acknowledged that his appeal was untimely and stated that the district attorney had consented to the out-of-time appeal. The notice was signed by the district attorney. However, the record contains no motion for out-of-time appeal, nor is there an order from the trial court permitting the late appeal. The notice of appeal erroneously stated that appellant was convicted of murder, when in fact, he had been convicted of voluntary manslaughter. Upon review the Supreme Court, apparently noting that the case was not within its subject matter jurisdiction, transferred the case to this court on October 27, 1986.

Decided April 13, 1987

Rehearing dismissed April 30, 1987

Ivan H. Nathan, for appellant.

Glenn Thomas, Jr., District Attorney, for appellee.

1. Appellant was required to file his notice of appeal within 30 days after the entry of the order denying his motion for new trial. OCGA § 5-6-38 (a). This court’s jurisdiction to entertain an appeal is conditional upon the proper and timely filing of such notice and, without it, we must dismiss the appeal. Melton v. State, 177 Ga. App. 134 (1) (338 SE2d 701) (1985). Dismissal is required in spite of the fact of consent given by opposing counsel to the late appeal, as “[p]arties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action.” OCGA § 15-1-2.

2. In an abundance of caution and in keeping with the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), we have reviewed the record as to substantive error below, and have found none.

Appeal dismissed.

Banke, P. J., concurs. Carley, J., concurs in Division 1 and the judgment.


author: Per curiam.

text:
    73867.
    VEIT v. THE STATE.
    (357 SE2d 113)
   Per curiam.

Terry M. Veit, appellant, was indicted on charges of arson, damaging government property (a police vehicle), simple battery, and reckless endangerment of his two-and-one-half-year-old daughter. Late on the afternoon of April 16, 1985, Ken Bruce, a Gordon County volunteer fireman, saw smoke arising from the nearby residence of Veit. He notified the fire department and proceeded to Veit’s home, a camper to which an additional room had been constructed. He saw Veit and his daughter about 15-20 feet from the burning structure. Bruce asked Veit what happened and was told: “I just got tired of it . . . so I set fire to it.” Veit lay down on the ground, shouting: “Let it burn, let it burn.” Bruce smelled the odor of alcohol on Veit’s breath and asked him if anyone was in the building or if there was a gas tank. Veit said no one was in the building and there was a propane gas tank. Bruce asked him to step back from the burning structure for his safety and his child’s safety. Veit told him he “didn’t have no business on his damn property . . . [and] I had better get my damn a— off his property.” Bruce went to a neighbor’s house and asked his dispatcher to send a police officer to that location.

A fire engine and Deputy Sheriff Larry Miolen arrived a few minutes later. Bruce told Miolen there was a propane gas tank in the burning structure. Miolen saw Veit and his child close to the burning building and asked appellant “if he would, to step back from the residence and get the child away from there.” Veit moved back one step and Miolen again asked him to step back further. Veit told Miolen: “I’m not going any g— d— where . . . You s— of a b—. I’m not moving without a warrant.” Miolen testified that at that time Veit turned toward him, kicked him in the shin and spit in his face. Miolen placed Veit under arrest and took one arm and forced it behind his back. Veit was holding his child with the other arm. Veit was placed in the back seat of the police vehicle. Veit said Miolen forced his head into the door and cut it. Miolen saw Veit kicking the interior of the police car, the windows and the doors.

Miolen testified he asked Veit to move back from the fire because of his proximity to the structure and the fact that the propane gas tank could have exploded. Miolen had received specialist training involving fires in which gas tanks were involved and recently had been involved in a fire in which a propane gas tank had exploded and seriously injured a person. The deputy was of the opinion that the child was endangered because of her nearness to the burning structure which contained a propane gas tank.

Deputy Sheriff Patterson went with Miolen to transport Veit to the jail. Both officers testified that Veit threatened to “burn and bomb” their homes when they and their families were in them. Veit admitted he had been drinking and that he had told the fireman that he set the camper on fire. However, at trial he said he had only four beers, and it was an accident that caused his camper to catch on fire. He contended the volunteer fireman and the deputy sheriff had tried to take control of him on his private property and he resented that. He was of the opinion that there was no danger to himself or his daughter as the propane gas tank was empty and open. He admitted he “might have kicked” Miolen, but denied spitting on him.

The trial court directed a verdict of acquittal on the count alleging damage to government property, and the jury acquitted appellant of the arson and reckless endangerment counts. Appellant brings this appeal from the jury verdict of guilty as to the counts alleging simple battery and terroristic threats. Held:

Appellant is appearing pro se and has disregarded the Rules of this court. He has listed nine “grounds” for appeal, and each “ground” contains from one to four enumerations of error. See MacDonald v. MacDonald, 156 Ga. App. 565 (1) (a) (275 SE2d 142). In essence, appellant complains of ineffective assistance of counsel at trial, insufficiency of the evidence, variance of the evidence, the charge of the jury, and failure of the trial court to hold a pre-sentence hearing in which he could present evidence in mitigation and extenuation.

1. When viewed in the light favorable to the verdict, as an appellate court is required to do, the evidence recited above is sufficient to enable any rational trier of facts to find the existence of the offenses of simple battery and terroristic threats, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The thrust of appellant’s claim of ineffective assistance of counsel is that he was illegally arrested, his resistance to the illegal arrest was legally permissible but resulted in the charge of simple battery, and that all evidence following his illegal arrest was inadmissible, and his counsel was ineffective because he did not get such evidence excluded.

The threshold issue is whether a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building, when the deputy has been made aware of the possibility of an explosion, and in his opinion the safety of a two-and-one-half-year-old child was unnecessarily endangered because of her proximity to the burning structure.

“ ‘All property is held subject to the police power of the State. . . . The due-process clauses are not intended to limit the right of the State to properly exercise the police power in the enhancement of public safety. . . . The police power has never been surrendered by the State . . . [and] to the exercise of police power all rights of natural persons and corporations are subject.’ Atlantic C.L.R. Co. v. State, 135 Ga. 545, 557 (69 SE 725).” McCoy v. Sanders, 113 Ga. App. 565, 569 (148 SE2d 902). “The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U. S. 133, 137 (1894), is still valid today: ‘To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.’ ” Goldblatt v. Hempstead, 369 U. S. 590, 594-595 (82 SC 987, 8 LE2d 130). One legal maxim which is embodied within the concept of “police power” and which we should consider in addressing this enumeration is “sic utere tuo ut alienum non laedas” (so use your own property that you do not injure that of another). Crowley v. Christensen, 137 U. S. 86, 90 (11 SC 13, 34 LE 620).

Hence, it is axiomatic that the State under its police power can enact laws in the interest of public health, safety, and welfare; also, that like powers can be granted to a municipality and a county. Vinson v. Home Bldrs. Assn. of Atlanta, 233 Ga. 948, 949 (213 SE2d 890). Each county in Georgia has been delegated the authority to elect or appoint peace officers (OCGA § 36-8-1), whose duties and authority include enforcement of criminal and traffic laws, and “preservation of public order, the protection of life and property, and the prevention, detection, or investigation of crime.” OCGA § 35-8-2 (8) (A). “The inherent police power of the state extends to the protection of the lives, health and property of the citizen, and to the preservation of good order and public morals and is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of public interest.” Pope v. City of Atlanta, 242 Ga. 331, 333 (249 SE2d 16), cert. den. 440 U. S. 936; see also Morris v. City of Columbus, 102 Ga. 792, 797-798 (30 SE 850).

It was the intent of the General Assembly that the office of sheriff be the basic law enforcement office of the counties of this state. OCGA § 15-16-1 (a). “The office of sheriff carries with it the duty to preserve the peace and protect the lives, persons, property, health, and morals of the people.” Elder v. Camp, 193 Ga. 320 (5) (18 SE2d 622). A deputy sheriff is an agent of the sheriff and in effecting the proper discharge of his duties is empowered with the same duties and powers. See OCGA § 36-8-5; Archer v. Aristocrat Ice Cream Co., 87 Ga. App. 567, 570 (74 SE2d 470).

Deputy Sheriff Miolen, after arriving at the scene of the fire in the instant case, and seeing it burning adjacent trees, and being reliably informed by a fireman that the burning structure contained a propane gas tank, and seeing a man who had the odor of alcohol on his breath, holding a two-and-one-half-year-old child, in proximity to the burning structure, was reasonably justified in assuming that the child was unnecessarily endangered, and that he was authorized as a peace officer of the county to request or direct that Veit remove himself and his child to a safer distance.

The reasonable intrusion by the peace officer being justified and his authority to protect the lives, persons, property and health of the public being invoked, his direction to Veit to move away from his proximity to the burning building and possible explosion was lawful, and the jury was authorized to believe that the officer was assaulted prior to any arrest of the individual, or that the physical assault by kicking and spitting was not authorized resistance to an unlawful arrest.

A warrantless arrest is authorized if any crime is committed in an officer’s presence or within his immediate knowledge. OCGA § 17-4-20. Whether such an arrest violates the statutory authorization depends upon whether at the time of the arrest the officer had probable cause to make it. Here the officer was assaulted while in the execution of his office, and when making the arrest was in the lawful discharge of his office. Whaley v. State, 175 Ga. App. 493 (333 SE2d 691). Hence, physical resistance to a legal arrest was not authorized. See Davis v. State, 172 Ga. App. 193 (1) (322 SE2d 497); Mullis v. State, 196 Ga. 569 (3) (27 SE2d 91).

Because Deputy Miolen was authorized to go upon the land of appellant and to direct him to remove himself and his child to a safer distance from the burning structure, and was authorized to make a warrantless arrest of appellant following his assault, evidence following this legal arrest was admissible. Appellant had raised the issue of ineffective assistance of counsel in his amended motion for new trial and it was denied. The constitutional right to effective assistance of counsel insures “ ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ ” (Emphasis omitted.) Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515). “ ‘When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.’ ” Austin v. Carter, 248 Ga. 775, 779 (285 SE2d 542). Our thorough review of the record reveals none of the deficiencies cited. To the contrary, the record reflects the appellant was effectively defended at trial, counsel securing acquittal on three out of five counts. This enumeration is without merit. Alvarez v. State, 172 Ga. App. 602, 604 (323 SE2d 898).

3. Veit argues that there is a variance in the proof adduced at trial and the “warrant affidavit.” The record does not contain the warrant or its affidavit. However, assuming arguendo that the affidavit did state that the arrest preceded appellant’s alleged assault upon Deputy Miolen, this inconsistency goes only to the credibility of the affiant. The indictment charged only that the physical assault by kicking and spitting occurred. The testimony of the officer at trial supported that allegation. Any inconsistency in a former statement by the officer would have been admissible for impeachment purposes, but there is no fatal variance between the allegata and probata.

4. Appellant contends the court’s charge on intent is burden shifting. The court charged: “I charge you that intent or criminal negligence to commit the crime charged in the indictment are essential elements the State must prove beyond a reasonable doubt. ... A person will not be presumed to act with criminal intention, but the tryor [sic] of facts; that is, the jury, may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted. . . .” In State v. Moore, 237 Ga. 269, 270 (227 SE2d 241), our Supreme Court held that “charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error.” The charge given in the instant case is not unconstitutionally burden shifting (Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39)) and is not subject to the objection made. Williams v. Kemp, 255 Ga. 380 (338 SE2d 669).

5. Appellant asserts that the trial court erred in failing to conduct a pre-sentence hearing in which he would be permitted to introduce evidence in mitigation and extenuation. Contrary to this assertion, the record contains a transcript of such hearing which was attended by Veit and his counsel. We find this enumeration of error to be without merit.

6. Appellant argues that he was indicted by a constitutionally infirm grand jury, that counsel was ineffective for failing to challenge its composition, and the trial court erred in refusing his Motion to Challenge, filed August 1986, following his trial in January 1986. There is no evidence of record of any challenge to the grand jury prior to or during the trial. Such objection must be made known at the earliest possible opportunity. Cobb v. State, 218 Ga. 10 (126 SE2d 231). The only evidence as to the composition of the grand jury is contained in appellant’s brief and papers he filed with the court after trial. We have no ruling on the Motion to Challenge in the record. “ ‘The burden is on him who asserts error to show it affirmatively by the record’ [Cit.], and this cannot be done ‘by evidentiary assertions ... in enumerations and briefs.’ [Cit.]” Holzmeister v. State, 156 Ga. App. 94 (274 SE2d 109). Appellant’s attack at this late date is untimely. Thomas v. State, 239 Ga. 734 (1) (238 SE2d 888).

7. We have examined the remaining allegations of error in appellant’s brief and found no one that was meritorious.

Judgment affirmed.

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

Decided April 14, 1987

Rehearing dismissed April 30, 1987.

Terry Veit, pro se.

Darrell E. Wilson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.


text:
    74144.
    McBURSE v. THE STATE.
    (357 SE2d 144)
   Benham, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by selling marijuana. OCGA §§ 16-13-20; 16-13-30 (j) (1) He now appeals from the denial of his motion for new trial. We affirm.

1. In his first and second enumerated errors, appellant challenges rulings made by the trial court during voir dire. The trial court refused to allow defense counsel to ask the venire whether any of the group believed “the State has a good cause simply because an indictment has been returned by the grand jury.” Appellant’s proffered question amounted to a prejudgment of the case and therefore was improper in a voir dire examination. Baxter v. State, 254 Ga. 538 (7) (331 SE2d 561) (1985).

2. During the voir dire examination, a venireperson stated: “I think if anybody’s even suspected of marijuana or dealing with it in my opinion he’s — as far as I’m concerned he’s guilty until proved innocent instead of the other way around.” When the venireperson admitted that his attitude would prevent him from serving as a fair and impartial juror, the trial court excused him. Appellant’s counsel then challenged the array of jurors due to the excused juror’s comment, which had been made in the presence of the other venirepersons. Appellant’s counsel then asked the remaining prospective jurors if, having heard the excused juror’s remark, any of them could not render a fair and impartial verdict. His question elicited no response. Relying on Lingerfelt v. State, 147 Ga. App. 371 (1) (249 SE2d 100) (1978), appellant now insists that the remark “brand[ed] him a criminal” and was so prejudicial that appellant’s challenge to the array should have been allowed. However, unlike the statement in Lingerfelt (that the prospective juror in a sexual assault case knew people who said the defendant was a Peeping Tom), the juror’s comment in the case at bar “did not link the defendant to other criminal violations . . .” Austin v. State, 180 Ga. App. 226, 227 (348 SE2d 746) (1986). Furthermore, the record reflects that the remaining prospective jurors indicated they would not be affected by the remark. See Pruitt v. State, 176 Ga. App. 317 (1) (335 SE2d 724) (1985). The trial court did not abuse its discretion by failing to uphold appellant’s challenge to the array.

Decided April 30, 1987.

Kenneth E. Lucas, for appellant.

James L. Wiggins, District Attorney, for appellee.

3. Appellant was arrested and charged with the sale of marijuana to “an unwitting informant” who procured it on behalf of an undercover agent who witnessed the sale. On redirect examination of the undercover agent/witness, certified copies of the unwitting informant’s guilty plea and sentence thereon .were admitted into evidence without objection. Appellant now sees reversible error in their admission.

“ ‘In order to raise on appeal contentions concerning admissibility of evidence, “the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” [Cits.]’ ” Benjamin v. State, 172 Ga. App. 3 (2) (321 SE2d 769) (1984).

4. Appellant next contends that the trial court erred in its recharge to the jury. The jury asked the court to distinguish the possession of marijuana from its sale. The trial court responded that appellant was accused of selling marijuana and then read OCGA § 16-13-30 (j) (1) to the jury. “ ‘It is not usually cause for new trial that an entire Code section is given . . . This is so even though a part of the charge may be inapplicable under the facts in evidence. [Cits.]’ ” Brown v. State, 159 Ga. App. 901 (3) (285 SE2d 552) (1981).

Judgment affirmed.

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


text:
    73827.
    HARPER v. THE STATE.
    (357 SE2d 117)
   Carley, Judge.

Appellant was tried on an indictment charging her with murder. The jury returned a verdict of guilty of voluntary manslaughter. Appellant’s motion for new trial was denied, and she appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The general grounds are enumerated. The evidence showed that the victim was estranged from his wife and had become involved in a love affair with appellant. Appellant became angry when the victim informed her that he intended to end their relationship and return to his wife. Appellant had threatened to kill the victim with a knife and, on the date in question, a witness saw appellant physically confront the victim, standing only a foot away from him. Immediately thereafter, the victim collapsed, having sustained a fatal stab wound in the chest. A bloody knife was recovered nearby. The only identifiable fingerprints on the knife were those of appellant.

When reviewed in the light most favorable to the verdict, the evidence was sufficient to authorize any rational trior of fact to find proof of appellant’s guilt of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Several of appellant’s enumerations of error relate to the fact that the jury was allowed to view the scene of the crime.

Appellant urges that the trial court erred by granting the jury’s request, made after its deliberations had begun, to visit and view the scene of the crime. Whether to allow a jury to view the scene of a crime is discretionary and there was no error here. See generally McDaniel v. State, 248 Ga. 494 (2) (283 SE2d 862) (1981); Forney v. State, 255 Ga. 316, 320 (7) (338 SE2d 252) (1986).

Appellant further contends that the trial court erred in failing to charge the jury that its view of the scene of the crime was not “evidence” in the case and should not be considered as such. A “scene view” is not “evidence” in a case. See Jordan v. State, 247 Ga. 328, 345 (276 SE2d 224) (1981); McDaniel v. State, supra at 495 (2). However, the record shows that appellant never requested that a charge to that effect be given. We know of no authority for the proposition that, having determined to grant the jury’s request for a visit to the scene of a crime, the trial court must, on its own motion, instruct the jury that the view is not to be considered as “evidence.” Moreover, appellant can demonstrate no harm as the result of the trial court’s failure to give such a charge in this case. It is clear that the procedure under consideration was scrupulously conducted by the trial court under strict conditions as a “scene view.” Appellant and counsel were all afforded the opportunity to be present, and there was no “danger of ‘ “the intentional gathering of extra judicial evidence, highly prejudicial to the accused, by members of the jury and the communication of that information to the other jurors in the closed jury room.” ’ [Cits.]” Forney v. State, supra at 320 (7). Compare Watkins v. State, 237 Ga. 678 (229 SE2d 465) (1976). The jury had already heard the testimony and seen the photographs and the view was carefully conducted so as merely “to aid the jury to better understand [that] evidence. This necessarily implies that the jurors [could] apply to the testimony the knowledge obtained by them in seeing the property or premises involved.” Shahan v. American Tel. &c. Co., 72 Ga. App. 749, 756-757 (3) (35 SE2d 5) (1945). Accordingly, error, if any, in the trial court’s failure to give the instruction on its own motion was harmless in this case.

It is urged that, after the scene view had been conducted, defense counsel was not afforded an opportunity to make additional argument before the jury. Nothing in the record shows that counsel ever requested such an opportunity. Assuming without deciding that the conduction of the scene view was occasion for reargument, in the absence of a request to reargue there would be no error. Cf. Daniels v. State, 137 Ga. App. 371, 373 (4) (224 SE2d 60) (1976); Blackmon v. State, 158 Ga. App. 665, 667 (2) (281 SE2d 634) (1981), overruled on other grounds, 163 Ga. App. 657 (295 SE2d 584) (1982).

3. In support of her motion for new trial, appellant offered the affidavit of one of the jurors. The trial court’s refusal to consider the affidavit is enumerated as error. Although OCGA § 17-9-41 prohibits the impeachment of a verdict by the affidavit of a juror, appellant urges that this statutory proscription would not apply here. According to appellant, the juror’s affidavit that she submitted concerned “the intentional gathering of extra judicial evidence.” Watkins v. State, supra at 685.

Appellant’s reliance upon Watkins v. State, supra, is misplaced. The affidavit states only that, after the scene view, some of the jurors had concluded, based upon their observations at the crime scene, that appellant’s testimony had been false in some respects. That some jurors undertook to use the judicially sanctioned scene view for the very purposes intended would not demonstrate the proscribed intentional gathering of extrajudicial evidence condemned in Watkins v. State, supra. See Forney v. State, supra at 320 (7). The jurors were clearly authorized to construe appellant’s testimony in light of their judicially authorized and supervised observation of the crime scene. Any juror was free to share his own observations of the crime scene and his conclusions reached as the result of those observations with the other jurors. Each juror, having himself visited the crime scene, was free to accept or reject the observations and conclusions expressed by any other. The affidavit shows only that the jurors acted as jurors after a judicially sanctioned scene view and does not show that any juror acted as an “unsworn witness against appellant” as to any finding resulting from an unauthorized visit to the scene of the crime. Watkins v. State, supra at 684. See also Forney v. State, supra at 320 (7). If one juror now has doubts about her own observations or conclusions or about those that were expressed by any other juror, the verdict cannot be impeached on that basis. The trial court did not err in refusing to consider the affidavit.

4. Over appellant’s hearsay objection, the trial court admitted certain testimony by a police officer, ruling that the testimony came within the hearsay exception for explaining conduct. The trial court’s ruling is enumerated as error.

If the officer’s conduct was itself relevant, the testimony was admissible to explain it. See Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). The officer’s conduct was the submission of the fingerprints of an individual other than appellant for comparison with those found on the knife. This conduct was relevant to the issues on trial in this case. The fingerprints were of the individual whom appellant contended had committed the homicide. If unexplained, the officer’s conduct could cause the jury to believe that the State, as well as appellant, had reason to consider that individual to be a suspect. However, the truth of the matter was apparently that it had been appellant’s counsel who had requested that the State make the comparison and the State had merely agreed to afford this aid to the defense. The officer was entitled to explain that his conduct was accommodative rather than investigatory. The trial court gave limiting instructions as to the relevancy of the testimony, and there was no error.

5. During its cross-examination of appellant, the State asked several questions regarding the hiring of a certain fingerprint expert by the defense. Although appellant enumerates this portion of her cross-examination as error on several grounds, a review of the record shows only that, at one point, the State attempted to elicit hearsay as to the results of the expert’s examination. The trial court sustained appellant’s hearsay objection to this question and instructed the jury to disregard it. No further relief was requested. Clearly, there was no error.

6. The physician who had conducted the autopsy of the victim was called as a witness for the State and was qualified as an expert in the field of forensic pathology. During his direct examination, the expert defined “hesitation marks” as a “superficial type of wounds, which are sometimes found in cases of suicide stabbings. . . .” The witness was then asked if he had observed any hesitation marks on the body of the victim. Over appellant’s objection that he was not qualified to answer the question, the witness was permitted to testify that no such hesitation marks had been found on the victim’s body. The trial court’s failure to sustain the objection to the witness’ testimony concerning hesitation marks is enumerated as error.

The presence of and explanation for a physical condition exhibited on or in the human body was clearly within the witness’ expertise as a forensic pathologist. The witness was certainly authorized to testify, on personal knowledge, that the victim’s body did not exhibit “hesitation marks.” There was no error.

7. Although “criminal negligence” was not an issue in this case, the trial court did not err by employing the entirety of the language of OCGA § 16-2-21 in its charge to the jury on the general definition of “crime.” See generally Smith v. State, 238 Ga. 146, 148 (2) (231 SE2d 757) (1977).

Decided April 14, 1987

Rehearing denied May 1, 1987

Milton F. Gardner, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

8. The trial court’s denial of appellant’s motion for a mistrial is enumerated as error.

The applicable portion of the record reflects that defense counsel did originally move for a mistrial. However, it also shows that, in the ensuing colloquy with the trial court, counsel then requested curative instructions. The trial court agreed that it would give the instructions and did so. Accordingly, appellant’s assertion that the trial court denied her motion for a mistrial is inaccurate. Defense counsel himself changed the ameliorative relief being sought from a request for the grant of a mistrial to one for curative instructions. ‘ “In no case will the trial court’s ruling be reversed for not going further than requested.’ [Cit.]” (Emphasis in original.) Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986). Moreover, even if the trial court had denied appellant’s original motion for a mistrial, there would be no error. The giving of the curative instructions was not followed by a renewed motion for a mistrial. “The denial of a motion for mistrial is not subject to review when the motion is not renewed following corrective instructions. [Cit.]” Kirksey v. State, 177 Ga. App. 428, 430 (3) (339 SE2d 401) (1986).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    74002.
    GERDES v. DZIEWINSKI.
    (357 SE2d 110)
   Banke, Presiding Judge.

This is an appeal by the plaintiff from an order granting summary judgment to the defendant in a “slip-and-fall” case.

The plaintiff alleges that one morning while she was a tenant in an apartment complex owned by the defendant, she slipped and fell on some dirt and pine straw which had been strewn across the sidewalk leading from her building to the laundry room. In an affidavit filed in opposition to the summary judgment motion, she averred that she had traversed the sidewalk three times that morning prior to her fall — once while taking her clothes to the laundry room, once while returning to her apartment from that trip, and once while walking back to the laundry room to pick up her clothes — but that she had seen no dirt or pine straw on the sidewalk on any of those three occasions. She stated that on her fourth trip, as she was returning from the laundry room with her clothes, she observed that there were pine needles littered across the sidewalk in such a way as to deny her “free and clear access to the stairs leading to [her] apartment.” She maintained that although she attempted to walk “at a point where there was [sic] the fewest pine needles, [she] could not avoid stepping on a few,” with the result that she turned her ankle on a small rock or pebble which was covered by the pine straw and fell, sustaining an injury to her hip.

The plaintiff testified that shortly before her fall she had observed a maintenance man, whom she identified by name, securing access to the basement of her apartment building through a hole in the foundation wall which had previously been filled with pinestraw. She stated that while carrying her clothes back to her apartment on her final trip from the laundry room, she observed that the worker was gone and that the pine needles were no longer in the hole.

In moving for summary judgment, the defendant relied on “any and all pleadings and other matters of discovery properly of record with the court,” including, specifically, the plaintiff’s deposition. However, the trial court has indicated that the deposition was not considered as evidence because it was never reviewed and signed by the plaintiff. Held:

1. The defendant has moved to dismiss the appeal on two grounds: (1) That the plaintiff failed to comply with an order entered by the trial court after the appeal was docketed directing her to review and sign her deposition within 15 days, and (2) that she has violated the rules of this court by failing to provide references to the record in support of the statements of fact contained in her brief. With respect to the first of these grounds, we are aware of no authority which remotely suggests that an appropriate sanction for a party’s failure to comply with an order to review and sign a deposition might be the dismissal of his or her appeal. See generally OCGA § 5-6-48 (b). With respect to the second ground, we note that in Justice v. Dunbar, 244 Ga. 415 (260 SE2d 327) (1979), the Supreme Court held that an appellant’s failure to make specific references to the record or transcript will not, in and of itself, warrant a summary refusal to consider an enumeration of error. Here, as in that case, the appeal is from a grant of summary judgment, the record is quite brief, and the appellant’s failure to provide page references has not significantly impeded our ability to address any of the issues raised in the appeal. Compare Dugger v. Danello, 175 Ga. App. 618 (2) (334 SE2d 3) (1985); Cowart v. Webster, 152 Ga. App. 542 (4) (263 SE2d 277) (1979). The motion to dismiss is consequently denied.

2. To establish that a property owner has negligently allowed a hazardous or defective condition to exist on his premises, it is necessary to show that the owner had superior actual or constructive knowledge of the existence of the condition and of the danger presented thereby. See generally Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906-907 (81 SE2d 721) (1954); Speaks v. Rouse Co. of Ga., 172 Ga. App. 9, 11 (321 SE2d 774) (1984). However, where the property owner, as the defendant in an action by a plaintiff-invitee to recover for such negligence, moves for summary judgment, the burden is on him as movant to negate the existence of superior knowledge on his part, with all doubts and conflicts being resolved in favor of the plaintiff. See generally Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). Sealy v. Western Broadcasting of Columbus, 168 Ga. App. 493, 495 (309 SE2d 633) (1983). Additionally, where the evidence indicates that the property owner was responsible for causing the condition to be present on the premises, he may reasonably be charged with knowledge of its existence and of the alleged danger presented by it. See Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986). Compare Speaks v. Rouse Co. of Ga., supra; McIntyre v. Corp. Property Investors, 160 Ga. App. 868 (288 SE2d 584) (1982); Rogers v. Atlanta Enterprises, supra.

The defendant in the present case has presented no evidence, by way of the plaintiff’s deposition or otherwise, tending to negate the inference of superior knowledge which might reasonably be deemed to arise from the evidence that it was one of his workmen who placed the debris on the sidewalk. Rather, he relies on the plaintiff’s testimony as establishing a full awareness on her part of the existence of the pinestraw and of the risk associated with walking across it. However, “mere knowledge” of the existence of a condition does not necessarily constitute “full appreciation of the risks involved.” See, e.g., Scott v. Rich’s, Inc., 47 Ga. App. 548, 551 (171 SE 201) (1933); Goldsmith v. Hazelwood, 93 Ga. App. 466, 469 (92 SE2d 48) (1956); Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477) (1979); Atkinson v. Kirchoff Enterprises, supra. Clearly, it has not been established as a matter of law in this case that the plaintiff voluntarily assumed the risk of slipping on an object hidden under the pine-straw, particularly since her affidavit suggests that the sidewalk may have been her only means of access to the stairway leading to her apartment. Cf. Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977).

This court’s decision in Sumner v. Otasco, Inc., 175 Ga. App. 177 (333 SE2d 28) (1985), relied upon by the defendant, does not require a contrary conclusion, as the plaintiff in that case simply walked into a lawnmower which was on display in full view outside the defendant’s store. Nor do Forde v. C & S Ga. Corp., 178 Ga. App. 400 (343 SE2d 164) (1986), and Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7) (1971), constitute authority for a contrary holding, in that the alleged defects involved in those cases were openly visible and obvious architectural features which were intrinsic to the premises. In Forde, the plaintiff walked into a metal housing containing air conditioning or other mechanical equipment which was attached to the side of a building. In Hines, the plaintiff stepped backwards off a six-inch ledge leading from the altar area of a funeral home to the chapel floor.

Decided April 13, 1987

Rehearing denied May 1, 1987.

Phyllis Gerdes, pro se.

Wade K. Copeland, for appellee.

Because the defendant in the present case failed to establish as a matter of law that the plaintiff had at least equal knowledge of the existence of the material hidden under the pinestraw and the danger presented by the debris, we must hold that the trial court erred in granting his motion for summary judgment.

Judgment reversed.

Carley and Benham, JJ., concur.


text:
    74091.
    WEST v. VETERANS ADMINISTRATION.
    (357 SE2d 121)
   Banke, Presiding Judge.

West appeals the grant of a writ of possession to the Veterans Administration (VA) in an action by the VA to evict him from certain property.

The evidence adduced at the summary, non-jury dispossessory proceeding conducted pursuant to OCGA § 44-7-50 demonstrated that on January 9, 1978, the appellant and his then-wife conveyed a 1.11-acre tract of land to Phipps Harrington Corporation as security for a $55,000 debt. On April 5, 1983, the security deed, which was subsequently assigned to the Federal National Mortgage Association (FNMA), was foreclosed upon by FNMA, which then conveyed the property to the VA.

The Phipps Harrington security deed incorporated by reference a plat which erroneously identified the beginning point of the property. However, there was testimony from a civil engineering expert that this error did not prevent the boundaries of the tract of land from being identified, and it was the VA’s position that a brick house which West occupied was located on the tract. West, on the other hand, maintained that the house was situated on property owned by his mother and, based on this allegation, filed a counterclaim to recover for the VA’s “wilful, wanton, intentional, malicious, and oppressive”.. misconduct in bringing the eviction action. The trial court granted summary judgment to the VA on this counterclaim and, following a non-jury trial, concluded that the VA was entitled to possession. This appeal followed. Held:

1. The appellant contends that no landlord-tenant relationship was shown to exist between the parties and that the action consequently should have been for ejectment, pursuant to OCGA § 44-11-1, rather than for possession, pursuant to OCGA § 44-7-50. We disagree.

The appellant conceded that it had been his intention to include the house in the property conveyed by security deed to Phipps Harrington, and the trial court was authorized to conclude from the evidence that the house was so included. It follows that when the appellant defaulted on the debt and the security deed was foreclosed upon, the relationship between the parties became that of landlord and tenant at sufferance. “As to the claim that no landlord/tenant relationship was shown to exist, it is well established that ‘[wjhere the grantor, or his privy, in a security deed remains in possession of the premises after lawful foreclosure of the deed, he is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale, or by his privy.’ [Cits.]” Hyman v. Leathers, 168 Ga. App. 112 (2) (308 SE2d 388) (1983). See also Stevens v. Way, 167 Ga. App. 688 (5) (307 SE2d 507) (1983). Moreover, “[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under [OCGA § 44-11-1]. [Cit.] The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. [Cit.]” McKinney v. South Boston Savings Bank, 156 Ga. App. 114 (2) (274 SE2d 34) (1980). Accordingly, the trial court did not err in issuing the writ of possession.

2. There is no right to trial by jury in a summary dispossessory action. See Green v. Carver State Bank, 178 Ga. App. 798 (3) (344 SE2d 507) (1986); Taylor v. Carver State Bank, 177 Ga. App. 856 (3) (341 SE2d 502) (1986). See generally OCGA § 44-7-53 (c). It follows that the appellant’s demand for jury trial was properly denied.

3. Since the appellee prevailed in the main action, it necessarily follows that the appellant was not harmed by the trial court’s refusal to entertain the appellant’s counterclaim seeking to recover damages for abusive litigation. See generally Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

Judgment affirmed.

Carley and Benham, JJ., concur.

Decided April 14, 1987

Rehearing denied May 1, 1987.

John H. Calhoun, Jr., for appellant.

William A. Erwin, for appellee.