text:
    A92A2080.
    HULEN v. THE STATE.
    (428 SE2d 405)
   Johnson, Judge.

In 1988, Jimmy G. Hulen was placed on probation for a term of approximately four years and eleven months. On September 21, 1990, after a probation revocation hearing, the court entered the following order: “[I]t is ordered and adjudged that the probation provisions in said original sentence be revoked in accordance with OCGA § 42-8-38 and the Defendant is hereby required to serve 30 days in addition to time served in the Gwinnett County Jail. . . subject, however, to the further provision that [he] may be released [at] 6:00 p.m., [on] September] 23, 1990.” On May 8, 1992, after another probation revocation hearing, the court entered an order purporting to revoke the probated sentence it had imposed on Hulen in 1988 and requiring him to serve the balance of that sentence in jail. Hulen appeals from the court’s probation revocation order of May 8, 1992.

1. In his first enumeration of error, Hulen contends that in 1990 his probation was revoked without any portion of it being reinstated and therefore the court lacked jurisdiction to revoke it again in 1992. We agree and reverse the court’s order of May 8, 1992.

“[Sentences for criminal offenses should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.” (Citations and punctuation omitted.) Dover v. State, 195 Ga. App. 507, 508 (393 SE2d 760) (1990). Here, the sentence of September 21,1990, was certain, definite and free from ambiguity. That sentence unambiguously revoked Hulen’s 1988 probation, required him to serve time in jail and ordered his release on September 23, 1990. There is no indication in the sentence that any portion of Hulen’s probation was to be reinstated upon his release. Consequently, that sentence was fully satisfied when Hulen was released from jail on September 23, 1990. Because Hulen was no longer on probation, there was nothing for the court to revoke on May 8, 1992, and the court’s order of that date must be reversed.

Decided February 23, 1993.

King, King & Jones, David H. Jones, for appellant.

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

2. Because of our decision in Division 1, we need not address Hulen’s second enumeration of error.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A2346, A92A2347, A92A2348.
    HUNTINGDON II, LTD. v. CHATHAM COUNTY BOARD OF TAX ASSESSORS (three cases).
    (428 SE2d 605)
   Andrews, Judge.

This is a consolidated appeal from the Chatham County Superior Court’s grant of summary judgment to the Chatham County Board of Tax Assessors in this case which involves the taxability of certain property owned by appellant, Huntingdon II, Ltd. At issue here is whether the agreement between Huntingdon and its tenant, Tidelands Community Mental Health Center (“Tidelands”) conveyed an estate for years or a usufruct. The superior court determined that the agreement between the two created a usufruct, a non-taxable interest; this determination effectively revoked the tax-exempt status of the property. In these three cases, Huntingdon appeals.

In 1989, Huntingdon and Tidelands entered into an agreement under which Tidelands was granted the right to use approximately 100,000 square feet of space at the Old Candler General Hospital Building. Tidelands is a community health, mental retardation and substance abuse center and was leasing the space for its outpatient program.

On April 3, 1990, the Chatham County Board of Tax Assessors notified Huntingdon that its tax-exempt status was revoked. After an unsuccessful hearing before the Chatham County Board of Equalization, Huntingdon filed an appeal in the superior court. Huntingdon filed a motion for partial summary judgment and the court determined that the interest in the property conveyed was a usufruct, and thus denied appellant’s motion and granted summary judgment to the county.

At the outset, we note that jurisdiction in this court is proper. See DeKalb County Bd. of Tax Assessors v. W. C. Harris & Co., 248 Ga. 277 (1) (282 SE2d 880) (1981).

Huntingdon argues that the agreement at issue conveyed a leasehold estate because of certain language in the contract which evidences this intent. The agreement states: “it is the intent of the parties to create a leasehold estate . . . and not a mere usufruct.” Accordingly, the document refers to the document as a “lease” and to Huntingdon and Tidelands as “lessor” and “lessee.”

In addition to the lease terminology which Huntingdon claims supports its construction, Huntingdon points out that the lease requires the lessee to repair and maintain the premises and to pay all costs of maintenance (see below), utilities, janitorial services and security. The lease also provides that the lessee may assign or sublease the devised premises without the lessor’s consent.

In determining that the interest here was a usufruct, the trial court found that the contract was not vague or ambiguous. The lease states that its initial term was for seven months, but provides for automatic renewals for ten consecutive one-year periods, provided the program was funded by the General Assembly. The trial court concluded that the lease was a year-to-year one, that it was structured in this manner so that if no funding was available, the lease would terminate without penalty to Tidelands. The trial court found that under the lease terms, Huntingdon was responsible for all insurance, taxes, and upkeep of the premises, including maintenance and repairs.

Our review of the lease reveals that the lease specifically provided that the lessor was responsible for all “structural, electrical, plumbing, elevators, heating and air conditioning system repairs and maintenance as well as repairs and maintenance to exterior walls, roofs and parking areas of the demised [sic] premises as they become necessary.” The lease also provided that the lessor was responsible for replacing any heating or air conditioning equipment in the event it became inoperative, and that it was responsible for all pest control services and all landscape maintenance. The document allowed Tidelands the use of 120 parking spaces. The lease provided that upon request by Tidelands, Huntingdon would make “alterations dictated by programmatic needs.” Tidelands’ obligation to maintain the property was limited to that not outlined as the lessor’s responsibility. Under the lease Tidelands was permitted to sublet the property.

We agree with the trial court’s determination that the interest conveyed here was a usufruct. OCGA § 44-7-1 provides guidelines regarding the landlord and tenant relationship, the rights of the tenant and the construction of leases for less than five years. That section states that the relationship of landlord and tenant is created when the owner of real estate grants to another person the right to possess and enjoy the use of real estate for a fixed period of time or at the will of the grantor. In subsection (b), the statute provides: “All renting or leasing of real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, to pass no estate out of the landlord, and to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.” OCGA § 44-6-101 codifies the distinction between an estate for years and the landlord/tenant relationship. That statute states: “As applied to realty, an estate for years does not involve the relationship of landlord and tenant, in which relationship the tenant has no estate but merely has a right of use which is very similar to the right of a hirer of personalty.” OCGA § 44-6-103 provides for an estate for years.

“One who accepts the grant of the right simply to possess and enjoy the use of the real estate has a usufruct and acquires no taxable interest in the land. On the other hand, one who accepts an estate for years has the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder of reversion interest is not injured by such use, and the estate is subject to ad valorem taxation.” (Citations and punctuation omitted.) Macon-Bibb County Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119 (414 SE2d 635) (1992).

“A lease of real estate for a period of less than five years is presumed to be a non-taxable usufruct, and there is a rebuttable presumption that a lease for five years or more is a taxable estate for years. Whether an estate in the land passes to the tenant, or he merely obtains a usufruct depends upon the intention of the parties; and this is true without regard to the length of the term.” (Citations and punctuation omitted.) Id. at 119.

In the instant case, the lease specifically states that it intends to convey a leasehold interest, not a usufruct. Because this is a tax dispute between Huntingdon and the taxing authority of Chatham County, this statement of intent does not control and we must scrutinize the provisions of the lease to determine the interest conveyed to Tidelands. See id.; Allright Parking of Ga. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 386 (260 SE2d 315) (1979); Camp v. Delta Air Lines, 232 Ga. 37, 40 (205 SE2d 194) (1974).

Decided February 23, 1993.

Weinstein, Rosenthal, Tobin & Caldwell, A. Keith Logue, for appellant.

Howard & Racz, Molly M. Howard, Hunter, Maclean, Exley & Dunn, Wade W. Herring II, for appellee.

We conclude that the amount of control which Huntingdon maintained over the property, in terms of its responsibilities for repairs and for payment of insurance and taxes, indicates a usufruct. Moreover, the lease term and the provisions with respect to Tidelands’ annual funding and corresponding year-to-year lease indicate a usufruct. Although no restrictions were put on Tidelands’ use of the property, the pervasiveness of Huntingdon’s control over the property demonstrates that the interest conveyed was a usufruct.

Accordingly, the trial court’s finding that the interest created was a usufruct and its concomitant grant of summary judgment to appellee was proper.

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


author: Johnson, Judge. Pope, Chief Judge,

text:
    A92A2375.
    JONES v. THE STATE.
    (428 SE2d 402)
   Johnson, Judge.

Larry Austin Jones was charged under OCGA § 40-6-391 (a) (1) with driving under the influence of alcohol to the extent that it was less safe for him to drive. Evidence presented at trial showed that Jones was stopped at a roadblock, there was an odor of alcohol in his van, his speech was slow, his eyes were red, he failed a field sobriety test and his blood alcohol level was .08 grams percent. After deliberating for an hour, the jury returned with the following verdict: “We the jury find the Defendant guilty. We came to this decision based upon the law’s definition of being ‘under the influence,’ and do not find that he was an unsafe driver. We recommend leniency.” The judge told the jury that their verdict was unacceptable and, without asking them the meaning of it, recharged them as to the law. After further deliberations, the jury returned a verdict that simply said, “Guilty.” Jones appeals from the judgment entered on that verdict.

Jones contends that the trial court erred in failing to enter a verdict of not guilty after the jury returned its first verdict because the jury’s statement that he was not an “unsafe driver” amounted to a finding that he was not a less safe driver. Jones relies on Maltbie v. State, 139 Ga. App. 342, 344 (2) (228 SE2d 368) (1976), in which a verdict of “guilty but without intent” was held to be the equivalent of an acquittal because there could be no criminal guilt without the element of intent. Jones’ reliance on that case is misplaced because the jury’s finding in this case, that he was not an unsafe driver, did not amount to a finding that an essential element of the crime charged was missing. OCGA § 40-6-391 (a) (1) does not require a finding that the driver was unsafe. “There is no requirement that the person actually commit an unsafe act.” (Citations and punctuation omitted.) State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990). Rather, the statute simply requires a finding that the person was a less safe driver than he would have been if he were not under the influence of alcohol. Cargile v. State, 244 Ga. 871, 873-874 (1) (262 SE2d 87) (1979); Campbell v. State, 189 Ga. App. 303 (375 SE2d 654) (1988). Under the statute, a jury could consistently find that a person’s driving, although not unsafe, was less safe than if the person were not under the influence of alcohol.

Decided February 23, 1993.

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, Robert H. Smalley III, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, As sistant District Attorney, for appellee.

Here, the jury’s finding that Jones was not an unsafe driver may or may not have encompassed a finding that he was not a less safe driver. Because of this uncertainty in the first verdict, the trial court did not err in refusing to receive it, in recharging the jury and in ordering further deliberations. Loftin v. State, 180 Ga. App. 613, 614 (1) (349 SE2d 777) (1986). The jury’s subsequent verdict was clear, unambiguous and supported by the evidence. The trial court properly entered judgment on that verdict.

Judgment affirmed. Carley, P. J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

I concur specially because the one thing that is clear from the language of the jury’s first verdict in this case is they did not understand the language of the charge on driving under the influence. When they returned their first verdict finding the defendant was guilty of driving under the influence but was not “an unsafe driver,” probably they meant he was not a “less safe” driver. Of course, it is well-settled that one may not be convicted of driving under the influence in the manner proscribed by OCGA § 40-6-391 (a) (1) unless the jury finds the defendant was a less safe driver due to the influence of alcohol. Clay v. State, 193 Ga. App. 377 (2) (387 SE2d 644) (1989).


author: Johnson, Judge.

text:
    A92A1679.
    SAXON v. SAXON.
    (428 SE2d 376)
   Johnson, Judge.

Brenda Saxon and S. Lee Saxon were divorced in 1981 and custody of their son was awarded to Brenda. In 1990, Lee filed a petition for change of custody. The child, who was 15 years old at the time of the change of custody trial, selected his mother Brenda as the parent with whom he wanted to live. The trial court, however, found that Brenda was not fit to have custody of her son and ordered that custody be changed to Lee. The court denied Brenda’s motion for a new trial and she appeals.

“In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he desires to live. The child’s selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.” OCGA § 19-9-3 (a); accord OCGA § 19-9-1 (a). The trial court determined that the mother was not fit based on a finding that she was involved in a meretricious relationship. This finding is not supported by the evidence. Black’s Law Dictionary defines meretricious as “the relation sustained by persons who contract a marriage that is void by reason of legal incapacity.” The Supreme Court has defined meretricious relationships in the context of Georgia’s “live-in lover” law as including “those instances in which persons of the opposite sex dwell together continuously and openly in a relationship similar or akin to marriage . . . albeit they are not husband and wife in contemplation of the law.” Hathcock v. Hathcock, 249 Ga. 74, 76 (3) (287 SE2d 19) (1982). Here, the mother was dating a man with whom she had a sexual relationship. However, they did not live together, and there is no evidence that any sexual activity took place in the presence of the child. Because there is no evidence that the mother dwelled openly and continuously with a man to whom she was not married, the court’s finding that she was engaged in a meretricious relationship is clearly erroneous. “If the court’s judgment is based upon a stated fact for which there is no evidence, it should be reversed.” (Citations and punctuation omitted.) Bridges v. Bridges, 197 Ga. App. 608, 609 (398 SE2d 860) (1990).

Moreover, there is no evidence that the relationship in question, meretricious or otherwise, resulted in abuse or neglect of the child or in the mother being incapable of caring for her child. Consequently, the court erred in determining that the mother was unfit to have custody of her son because of this relationship. See generally Hayes v. Hayes, 199 Ga. App. 132 (404 SE2d 276) (1991).

Decided February 8, 1993

Reconsideration denied February 24, 1993.

Adams & Adams, Charles R. Adams III, for appellant.

Fennessy & Nettum, Michael A. Fennessy, for appellee.

The court also determined that Brenda Saxon was unfit because she “attempted to poison the mind of her son . . . against his father by showing their son the pleadings in this case and discussing the details of the case with [him].” The mother explained that she discussed the case with her son to allay his concerns about the proceedings. The trial court was not required to accept her explanation; however, there is no evidence that the mother’s discussion of the case with the child amounted to abuse of, neglect of, or inability to care for the child. The court therefore erred in determining that the mother was unfit based on such discussions.

Because the court erroneously determined that the mother was not fit to have custody of her son, the child’s selection of his mother as the parent with whom he wanted to live was controlling. “The evidence fails to show any change in the mother’s fitness or ability to care for the child. There being no evidence showing a material change of circumstances or conditions affecting the welfare of the child, the court abused its discretion in awarding custody to the father.” (Citations and punctuation omitted.) Livesay v. Hilley, 190 Ga. App. 655, 657 (2) (379 SE2d 557) (1989).

Judgment reversed. Pope, C. J., and Carley, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1712.
    HUMPHREY v. THE STATE.
    (428 SE2d 362)
   Birdsong, Presiding Judge.

Charles Gary Humphrey was convicted of rape and burglary. He was sentenced to fifteen years with seven years to serve concurrently on each count, and appeals.

The prosecutrix and Humphrey were married, but living separately at the time the alleged offenses were committed and when the case was tried. The prosecutrix was asleep alone in the home of her grandparents in the early morning hours of August 25, 1990, when appellant broke in by removing a skylight. She testified that he was holding her grandfather’s shotgun when he awoke her, and that he bound her hands behind her back with a necktie, removed her clothes and raped her. Appellant admitted that he broke into the house, but claimed he did so only because there had been a recent burglary and he was worried for his wife’s safety when he could not reach her by telephone and she did not respond to his knocking at the door or ringing the doorbell. He denied raping her and testified that they talked for awhile then started having consensual sexual intercourse, which was discontinued when she called him by another man’s name and an argument ensued. After appellant called his mother, the prosecutrix got on the telephone and told her that appellant had broken into the house, but said nothing about being raped. The prosecutrix said she managed to get her hands free and ran to the bathroom where she locked herself in and called the police, while appellant attempted to kick in the door. Appellant claimed he retrieved the shotgun at that time, wrote a suicide note and was leaving the residence when he heard a door slam and returned to find the victim in the bathroom on the phone. Appellant surrendered to the police while they were interviewing the prosecutrix in the kitchen about 15 minutes later.

At trial appellant sought to introduce evidence of false claims previously made by the prosecutrix that she had been raped by other men. After the jury was removed, defense counsel made an offer of proof through the testimony of three witnesses to whom the false accusations had been made. The prosecutrix was also examined and denied making any such claims. The trial court refused to allow the evidence on the ground it was prohibited by the “Rape Shield Statute” (OCGA § 24-2-3).

The prosecutrix had moved out of her grandparents’ home and was living in the house of a friend during the trial. This woman, who was unknown to defense counsel because the prosecutrix had not revealed her correct address while living there, contacted appellant’s attorney about a week after he was convicted in February 1991 and told him that she had met the prosecutrix at work and agreed to let her move in with her after appellant was incarcerated. She testified that in September 1990, while they were working together one night, she asked the prosecutrix to tell her what had happened and why her husband was in jail. The prosecutrix related a series of events very different from what she reported to the police and testified to in court, but quite similar to appellant’s testimony. She told the roommate that after appellant broke into the house they talked for awhile about their relationship and ended up in bed having sex; but that “in the middle of it, she got angry and she said she changed her mind, she said it wasn’t right, that’s not what she wanted to do.” She told appellant to stop but he could not or would not do so; she then got him off of her and ran into the bathroom to call the police. Throughout the trial the prosecutrix was using drugs and lying to her, and the roommate finally forced her to move out. A dispute over money culminated with the prosecutrix taking out a warrant against the witness.

Appellant’s motion for a new trial based upon this newly discovered evidence and the trial court’s refusal to allow evidence of the false claims of rape made by the prosecutrix was denied, and this appeal was brought. Held:

1. Appellant complains that his motion for new trial should have been granted on the basis of the newly acquired evidence as the roommate’s submitted testimony established five of the six necessary requirements set forth in Timberlake v. State, 246 Ga. 488 (271 SE2d 792), the sole issue being whether the only effect of the evidence would be to impeach the credibility of a witness. He argues that because the newly discovered evidence consisted of prior statements of the prosecutrix which materially related to whether she had been raped, if the roommate’s testimony had been available at trial no jury would have convicted him of rape and the resulting felony which created a burglary out of a misdemeanor trespass. The State insists that the roommate came forward with her information only after her dispute with the victim; that her testimony was merely cumulative of evidence previously presented at trial through appellant’s testimony; and that the sole function of her testimony was to impeach the credit of the victim, “a purpose not permitted under Timberlake.” Merka v. State, 201 Ga. App. 471, 472 (2) (411 SE2d 357).

“It is well established that in order to be granted a new trial on the basis of newly discovered evidence, a defendant must show, among other things, that the evidence is so material that it would probably produce a different verdict, that it is not cumulative only, and that it will have an effect other than to impeach the credit of a witness. [Cits.]” Hall v. State, 204 Ga. App. 469, 473 (6) (419 SE2d 503).

“ ‘Evidence is not merely cumulative, though it may have some bearing upon the main issue in controversy, if it relates to new, distinct, and material facts about which no witness testified at the trial. [Cit.]’ [Cit.] ‘It is only when newly discovered evidence either relates to a particular material issue concerning which no witness has previously testified, or of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence, and afford basis for a new trial. . . . But, as an exception to this rule, it is recognized that where the new evidence, though it be of the same or even inferior grade, tends not merely to strengthen the correctness of the contention on the particular material issue previously sought to be established, but such new proved fact or circumstance, if believed, would in and of itself establish or disprove the controlling point in controversy, or would establish or disprove it by supplying a link or gap missing in the previous testimony, it will afford basis for a new trial.’ [Cit.]” Bell v. State, 227 Ga. 800, 806-807 (3) (183 SE2d 357).

Our study of the case law leads us to conclude that the testimony concerning these statements by the complaining witness would be admissible, not merely to impeach the witness’ credibility, but as substantive evidence tending to establish that there had been no rape, as she had at first engaged in sexual intercourse consensually with appellant although subsequently changing her mind while the act was in progress and had gotten him off of her. “As such, this evidence goes beyond mere impeachment and affirmatively supports the defense claim of consent and fabrication of the rape. [Cit.]” In the Interest of J. F. F., Ill Ga. App. 816, 818-819 (1) (341 SE2d 465). Accord Banks v. State, 235 Ga. 121 (218 SE2d 851); Bell, supra; Lee v. State, 146 Ga. App. 189 (3) (245 SE2d 878). Further, “testimony from the later-discovered witness was apparently not cumulative, even though it was substantially the same as the defendant’s own testimony, because it provided support for the defendant’s theory, support which otherwise was completely lacking in the case.” Id. at 193; Banks, supra.

In regard to whether this evidence meets the criterion of being so material it would probably produce a different verdict, it has been recognized “that this cannot be reduced to a mathematical probability, since the jurors are the ultimate judges of the credibility of witnesses and no prognostication of their reaction to such evidence can be completely accurately made.” Bell, supra at 807. Compare In the Interest of J. F. F., supra at 819. However, in refusing to grant a new trial, “ ‘[t]he court has seemingly passed upon the credibility of the [roommate] and has said, in effect, that a jury could not believe [her] as a matter of law. We believe the court abused its discretion when it denied [appellant’s] motion for a new trial. [Cit.]’ ” Bell, supra at 809.

2. Appellant also contends that the evidence concerning the prior rape claims made by the prosecutrix was not barred by the Rape Shield Statute, and we agree. While OCGA § 24-2-3 precludes introduction of the victim’s past sexual behavior, “a prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior.” Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738). In Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158), the Supreme Court adopted the rule “that evidence of prior false accusations is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. [Cits.]” (Emphasis supplied.) The court further established in Smith that “before such evidence can be admitted, the trial court must make a ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists. (Cites omitted.)’ [Cit.] This rule helps protect the prosecutrix from unfounded allegations that she has made similar allegations in the past, and we hereby adopt it for future cases in this state.” Id. at 137-138; compare Postell v. State, 200 Ga. App. 208, 211 (4) (407 SE2d 412).

“A réasonable probability is ‘a probability sufficient to undermine confidence in the outcome.’ [Cits.]” Ellison v. State, 198 Ga. App. 75, 76 (1) (400 SE2d 360). Since appellant contended that no rape occurred, any evidence showing a “reasonable probability” that the prosecutrix had made other false accusations would certainly be the strongest defense available to him; thus it cannot be said that the failure to adhere to the Smith rule was harmless error. Nor can we say from the evidence proffered that no reasonable probability of false allegations existed as a matter of law.

The trial court’s rejection of this evidence without holding a hearing on the reasonable probability of falsity is an error which can be cured by a post-trial hearing in the trial court where, on the basis of evidence introduced at such hearing, the trial judge may determine that a reasonable probability of falsity exists so as to render the victim’s prior false accusations against others admissible as impeaching and substantive evidence, and order a new trial. Shelton v. State, 196 Ga. App. 163, 164 (4) (395 SE2d 618). Since we have already ruled that a new trial must be granted, we direct the trial court to hold a hearing to determine under the proper standards whether the evidence of the prior rape claims made by the prosecutrix will be admissible on retrial.

3. Appellant contends that the trial court erred in refusing to give his written requests to charge on the lesser included offenses of battery and simple battery because he and the prosecutrix gave conflicting versions of how the sexual intercourse occurred, and his pretrial statement to the police would have supported such jury instructions. However, the trial testimony showed that there was either a rape, or there was consensual sexual intercourse between a reconciliation-seeking husband and wife which was interrupted when they changed their minds. Simple battery, as defined by OCGA § 16-5-23 (a) (1) and (2), is committed when a person either intentionally makes physical contact of an insulting or provoking nature with the person of another, or intentionally causes harm to another. “A person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). There was no evidence of any such harm to the prosecutrix other than as a component of the rape. “ ‘Where all of the evidence shows either the completed offense as charged, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.’ [Cit.]” Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547).

Judgment reversed with direction. Beasley and Andrews, JJ., concur.

Decided January 29, 1993

Reconsideration denied February 24, 1993

Carlton C. Carter, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.


text:
    A92A1810.
    BROOKS v. THE STATE.
    (428 SE2d 357)
   Birdsong, Presiding Judge.

Alton Brooks appeals from a judgment of the Superior Court of Fayette County refusing to reverse his conviction in probate court of driving under the influence of alcohol. His sole enumeration of error is that the probate court erred in overruling his oral motion to quash the accusation during the trial of the case because the Uniform Traffic Citation (hereinafter “UTC”) under which he was tried did not sufficiently allege any of the essential elements for violation of OCGA § 40-6-391, and thus did not adequately inform him of the charges against him. Held:

During the course of the trial appellant orally moved “to quash the accusation as it stands” because the UTC did not charge him with a crime under the laws of Georgia, in that each and every essential element of OCGA § 40-6-391 was not contained therein. This was based upon the holding in Pullen v. State, 199 Ga. App. 881, 882 (406 SE2d 283), that a motion to quash should be granted where “the accusation was substantively defective in that it did not set forth a criminal offense.” The accusation in Pullen charged the defendant with “the offense of operating a vehicle while under the influence of alcohol and drugs ‘for that the said accused . . . did . . . unlawfully drive and be in (sic) actual physical control of a motor vehicle upon and along that certain public road, street and highway known as U. S. Highway 278 West, contrary to the laws of this State, the good order, peace and dignity thereof.’ ” Id. at 881. We held that the accusation was defective because the “defendant could admit the accusation and still be innocent of the offense charged.” Id.

The superior court found that the rule stated in Pullen was inapplicable to the instant case because the UTC was approved by the Commissioner of Public Safety, as required and allowed by OCGA §§ 40-13-1, 40-13-3, 40-13-21 and 40-13-24; it specifically set out the charge as a violation of OCGA § 40-6-391; and appellant entered upon the trial of the case without raising any objection to it. The UTC stated that appellant had committed an offense “In Violation of Code Section 40-6-391 of . . . State Law.” It further indicated that a “DUI” breath test was administered and showed the test results to be “.21 gr.,” which defense counsel acknowledged at trial represented .21 grams. “The language of OCGA § 40-6-392 (a) providing that evidence of the amount of alcohol in a person’s blood, as determined by chemical analysis of that person’s breath, is admissible in DUI trials ‘makes it clear that a breath test is used to determine the amount of alcohol in a person’s blood.’ [Cits.] . . . Such results are commonly understood to mean the amount of alcohol. . . in a certain volume of the subject’s blood. The evidence adduced was sufficient to authorize a conviction for driving with an unlawful blood alcohol level under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Page v. State, 202 Ga. App. 828, 829-830 (1) (a) (415 SE2d 487). Thus here, unlike Pullen, “[a]ppellant could not have admitted to the allegations in the [UTC] and be innocent of the offense of [driving under the influence of alcohol].” Watson v. State, 190 Ga. App. 671, 673 (3) (379 SE2d 811).

Appellant’s argument that the failure to allege the essential elements set forth in the statute rendered the accusation fatally defective has been decided adversely to his position by this court. In Broski v. State, 196 Ga. App. 116 (1) (395 SE2d 317), the accusation charged the appellant with driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and the appellant contended the failure to recite the words “ ‘to the extent that it [was] less safe for the person to drive’ ” constituted a fatal defect. (Emphasis deleted.) We concluded “that reciting the proper statute is a sufficient, though not desirable, method of fulfilling the requirement” of OCGA § 17-7-71 (c) to “[state] the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury.” Id. at 116.

Even if the absence of the descriptive language renders the accusation “not perfect, ‘this court on appeal must apply a “harmless error test” in order to determine if the error has prejudiced defendant and thus requires reversal of his conviction. [Cit.] “(W)hen trial has been had before the appellate court reviews the merits of the [motion to quash], where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice.” (Cit.) . . . “Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. Upon a proceeding after verdict(,) no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment (or accusation or citation). Thus a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.” . . . (Cit.) Defendant alleges no prejudice to himself and we can discern none. Any error in failing to try him upon a “perfect” uniform traffic citation was, thus, manifestly harmless.’ (Emphasis supplied.) [Cit.]” Id. at 118. Accord Burks v. State, 195 Ga. App. 516 (1) (c) (394 SE2d 136). See also Weaver v. State, 179 Ga. App. 641 (3) (347 SE2d 295).

Decided January 19, 1993

dismissed February 24, 1993

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

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

Judgment affirmed. Beasley and Andrews, JJ., concur.


author: Blackburn, Judge.

text:
    A92A2390.
    NORTHGATE VILLAGE APARTMENTS v. SMITH.
    (428 SE2d 381)
   Blackburn, Judge.

The appellant, Northgate Village Apartments, appeals from the order of the trial court denying its motion to set aside a default judgment entered against it in a slip and fall action brought by the appellee, Franklin Smith.

In June of 1990, the appellee entered into an agreement with Northgate Village Apartments, Ltd. to rent an apartment unit in Columbus. As a result of the appellee’s failure to pay rent pursuant to this agreement, the appellant instituted a dispossessory proceeding in the Municipal Court of Columbus. The appellee answered untimely, asserting several defenses in addition to a counterclaim that the appellant’s alleged failure to maintain the premises resulted in his slip and fall on the appellant’s premises. The appellee’s untimely answer and counterclaim were stricken by the court on February 19, 1991. The court further denied the appellee’s motion to set aside the subsequent judgment that was entered against him and also denied his motion for reconsideration.

On January 30, 1992, the appellee filed a separate action in the State Court of Muscogee County, seeking damages for the alleged slip and fall that he attempted to assert as a permissive counterclaim in the municipal court proceeding. On January 31, 1992, the complaint was served on Linda Massey, as the manager of Northgate Village Apartments, and she apparently forwarded it to the appellant’s insurer. The insurer received the complaint on or about February 1, 1992; however, the adjuster handling the matter failed to recognize that the complaint was a separate and new action, and mistakenly thought that counsel in the other action had received a copy of the complaint. As a result, an answer was not filed on behalf of the appellant until after a newspaper article was seen concerning the $100,000 default judgment against the appellant. The appellant subsequently moved to set aside the default judgment pursuant to OCGA § 9-11-60 (d), and the trial court denied the motion. The trial court also denied the appellant’s motion for reconsideration, and this discretionary appeal followed.

1. The appellant contends that the trial court erred in not setting aside the default judgment on the grounds that the service of process was insufficient, inasmuch as the apartment manager who was served was not the registered agent for the partnership.

OCGA § 14-9-104 provides for service of process on limited partnerships through a registered agent, or, if the partnership fails to appoint or maintain a registered agent in this state, through the Secretary of State. Contrary to the appellant’s contention, however, that statute does not purport to provide or identify the exclusive means of perfecting service of process on limited partnerships. Cf. O’Neal Constr. Co. v. Lexington Developers, 240 Ga. 376 (240 SE2d 856) (1977), wherein the Supreme Court found that similar provisions contained in former Code Ann. § 22-403, regarding service on domestic corporations, were designed to supplement the means of service allowed in the Civil Practice Act.

In Reading Assoc., Ltd. v. Reading Assoc. of Ga., 236 Ga. 906, 907 (1) (225 SE2d 899) (1976), the Supreme Court held that service of process may be perfected upon an agent of a partnership, under former Code Ann. § 81A-104 (d) (2) (now OCGA § 9-11-4 (d) (2)). In the context of perfecting service upon a corporation, “[a]n agent authorized to receive service has been defined as one whose position is ‘such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.’ [Cit.]” Ogles v. Globe Oil Co., U. S. A., 171 Ga. App. 785, 786 (320 SE2d 848) (1984). The same principle should apply in determining whether an agent of a limited partnership is authorized to receive service on behalf of the partnership. The record in the instant case, however, is completely silent as to the duties and authority of the apartment manager.

The appellant initially did not even assert insufficiency of service of process based upon the apartment manager lacking authority to receive service. The issue was first raised when the appellant moved for reconsideration of the trial court’s denial of its motion to set aside the default judgment. At no instance did the appellant present any evidence regarding the authority of the apartment manager to receive service on behalf of the partnership. Inasmuch as the burden is on the party asserting insufficiency of service of process to show that the person served was not his agent, see Rawlins v. Busbee, 169 Ga. App. 658 (315 SE2d 1) (1984), and the appellant made no attempt to satisfy that burden, the trial court did not err in denying the motion to set aside the default judgment on that basis.

2. The appellant also contends that the trial court erred in not setting aside the default judgment on the grounds that it was obtained against a non-entity, i.e., Northgate Village Apartments. The appellant’s correct name is Northgate Village Limited Partnership, but it is uncontroverted that Northgate Village Apartments constitutes the appellant’s trade name. In fact, the record shows that the appellant’s dispossessory action filed against the appellee was brought in that trade name, and not the actual partnership name.

“ ‘Where the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. (Cits.) Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. (Cit.)’ [Cits.]” Cunningham, Tallman, Pennington, Inc. v. Case-Hoyte Color Printers, 174 Ga. App. 488 (330 SE2d 598) (1985). “[If a] suit is not prosecuted in the name of or against a natural person but in the name of or against a legal entity which either imports a corporation or a partnership, the failure to allege that the party in question is either a corporation or a partnership is an amendable defect. [Cit.]” Underwriters at Lloyd’s, London v. Strickland, 99 Ga. App. 89, 90 (107 SE2d 860) (1959). A motion to set aside a default judgment based upon such a misnomer is not within the purview of OCGA § 9-11-60 (d). Carroll v. Equico Lessors, 141 Ga. App. 279 (233 SE2d 255) (1977); see also Miller v. U. S. Shelter Corp. of Delaware, 179 Ga. App. 469 (347 SE2d 251) (1986).

Moreover, we note that, even if a motion to set aside based upon a misnomer did fall within the ambit of OCGA § 9-11-60 (d), such relief would not be available to the appellant in this case. The above rule regarding misnomers constituting amendable defects usually pertains to situations where the issue is raised prior to the final judgment. However, where a misnomer is involved, “ [i]f no objection is made and no amendment filed, it is too late after final judgment to raise the issue.” Donald v. Luckie Strike Loans, 148 Ga. App. 318, 320 (251 SE2d 168) (1978).

3. In the remaining enumeration, the appellant contends that the trial court erred in not setting aside the default judgment on the grounds that the appellee’s slip and fall claim was previously asserted in the municipal action and therefore barred by the doctrine of res judicata. Even if the doctrine of res judicata is applicable, since res judicata is an affirmative defense, the appellant’s failure to assert the defense in a timely filed responsive pleading acts as a waiver of the defense. See Hubbard v. Stewart, 651 FSupp. 294 (M.D. Ga. 1987). Accordingly, the appellant is precluded from asserting the doctrine of res judicata as a defense and this enumeration is without merit.

Decided February 9, 1993

Reconsideration denied February 24, 1993

Pursley, Howell, Lowery & Meeks, John R. Lowery, for appellant.

Elkins & Gemmette, James A. Elkins, Jr., for appellee.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A93A0055.
    COKER v. THE STATE.
    (428 SE2d 578)
   McMurray, Presiding Judge.

Defendant Coker appeals his conviction of the offenses of armed robbery and possession of a firearm during commission of a crime. Held:

1. Defendant enumerates as error the trial court’s refusal to grant his motion brought pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). Defendant contends that the State improperly used its peremptory strikes to exclude blacks from the jury. “The defendant has the burden to complete the record to establish a prima facie case with information revealing ‘the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.’ Aldridge v. State, 258 Ga. 75, 77 (365 SE2d 111). . . . Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. [Cits.] [Defendant] did not amend or supplement the record to reflect the necessary facts pursuant to OCGA § 5-6-41 (f), nor do we find any stipulation in the record as to the facts pursuant to OCGA § 5-6-41 (i). Accordingly, [defendant] has not carried his burden to show by the record the facts necessary to prove his claim under Batson. Aldridge [v. State, 258 Ga. 75,] at 77.” Shaw v. State, 201 Ga. App. 438, 439, 440 (411 SE2d 534). Although developments in the law have cast some question upon the prima facie requirement (Weems v. State, 262 Ga. 101, 102 (416 SE2d 84)), we are aware of no decision striking this threshold requirement. In the light of the recent post- Weems decision in Love v. State, 205 Ga. App. 27 (421 SE2d 125), it is clear that the prima facie requirement is intact and that Shaw v. State, 201 Ga. App. 438, supra, remains binding precedent.

In any event, the numbers mentioned in the colloquy during the hearing of defendant’s motion in the case sub judice, though not competent evidence and not sufficient to establish a record for appellate review, fail to establish a prima facie case requiring the State to explain the use of its peremptory strikes under the numerical analysis stated in Aldridge v. State, 258 Ga. 75, supra. It was stated at the hearing that of the panel of 48 potential jurors, 19 were black, while the jury selected included 5 or 6 blacks. Furthermore, the prosecutor made racially neutral explanations found acceptable to the trial court and we do not find this determination clearly erroneous. Tharpe v. State, 262 Ga. 110, 111 (6), 112 (416 SE2d 78).

2. The armed robbery occurred when the manager of a gas station attempted to take the business’ deposit to the bank. Defendant confronted the manager as she was entering her car parked on the business premises. The State presented testimony from the assistant manager of a business located adjacent to the gas station. This testimony related that the adjacent business had received reports over a period of a week that there was a vehicle parked in back of the business. Upon investigating one of these reports, the assistant manager of the adjacent business found defendant parked at such an angle that his vehicle faced and defendant was able to observe the business which was robbed. When asked whether she had any particular concern as to what defendant was doing back there, the witness acknowledged that there had been some concern as to what defendant was doing and that one of her companions had asked defendant if he was dealing drugs. Defendant objected and moved for a mistrial on the grounds that the State was implying that defendant was selling drugs. Defendant’s objection was overruled and his motion for mistrial denied.

Defendant enumerates as error the denial of his motion for mistrial arguing that his character was improperly placed into evidence. However, the evidence of defendant’s observation of the gas station he was charged with robbing was relevant to establish his intent and course of conduct. It was germane to this showing to delve into defendant’s reason for parking at that location. “Evidence which is relevant is not rendered inadmissible because it incidentally places a defendant’s character in issue. ...” Stitt v. State, 256 Ga. 155, 156 (1) (345 SE2d 578). In any event, we question whether the testimony objected to was sufficient to raise the implication argued by defendant. Even if it did, there was no error.

3. Defendant contends the trial court erred in admitting into evidence certain dispossessory warrants filed against defendant less than a month prior to the crimes at issue. Defendant argues that this evidence improperly placed his character in evidence. However, the evidence also served to demonstrate defendant’s motive for committing an armed robbery. “[E]vidence admissible to show motive is not rendered inadmissible because it incidentally places the defendant’s character in issue. Parker v. State, 169 Ga. App. 966 (2) (315 SE2d 683) (1984).” Brock v. State, 179 Ga. App. 519, 520 (1) (347 SE2d 230).

4. The trial court did not err in denying defendant’s request to charge on robbery by force as a lesser included offense of armed robbery. The manager of the gas station, from whom the business’ bank deposit was taken, testified that the defendant was armed with a silver colored, stainless steel revolver. Regardless of whether a gun was ever recovered by law enforcement officers or placed in evidence, the evidence proved the greater offense or none at all. Under these circumstances there was no error in refusing to give a requested charge on the lesser offense. Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229).

5. After the verdict was received and the jury dismissed, the trial court revealed that the jury, during their deliberations, had sent out four questions concerning evidentiary matters to which it had responded in writing “that I was not allowed to comment on evidence, they would have to draw on their collective recollections of what the evidence was, and left it at that.” The trial court explained that “[y]ou all weren’t available at the time, so I just went ahead and did that.”

Defendant contends that the trial court committed reversible error by responding to the juror’s questions in the absence of defendant. See Collins v. State, 191 Ga. App. 289 (2), 291 (381 SE2d 430). The well established rule is that the defendant must be present when the trial court takes any action materially affecting his case. Collins at 290. Unlike Collins, the trial court in the case sub judice did not instruct the jury on a substantive issue in the defendant’s absence. In the case sub judice, the trial court merely refused to answer the jury’s questions concerning the evidence. Under the rule stated in Leverette v. State, 104 Ga. App. 743 (1) (122 SE2d 745), such a refusal is not harmful error.

Judgment affirmed. Cooper, J., concurs. Beasley, J., concurs spe- ° dally.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 through 5.

In concur in Division 1 insofar as the court holds that the trial court’s determination as to the State’s strikes is not clearly erroneous. Tharpe v. State, 262 Ga. 110, 112 (416 SE2d 78) (1992), citing Hightower v. State, 259 Ga. 770, 773 (11) (386 SE2d 509) (1989); Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). According to statements of counsel and the court at the hearings, eight of the nineteen black members of the venire were peremptorily stricken by the State. Seven were female. As to each one, the State gave its explanation, the defendant responded, and the trial court ruled that the reasons given were racially neutral and thus legitimate.

Decided February 9, 1993

Reconsideration denied February 24, 1993

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Elise B. Gray, Assistant District Attorney, for appellee.

The values to be served by assuring a racially-neutral jury selection process are threefold: “To protect individual defendants from discrimination,” to protect the “ ‘dignity of persons,’ ” i.e., prospective jurors, and to protect the “ ‘integrity of the courts.’ ” Georgia v. McCollum, 505 U. S. _ (112 SC 2348, 120 LE2d 33, 44) (1992). The test on appeal is whether the court’s ruling was clearly erroneous. Having reviewed the reasons articulated by the State, I cannot conclude that the trial court clearly erred.


text:
    A92A1706.
    HASTY v. SPRUILL.
    (428 SE2d 420)
   Johnson, Judge.

This is a personal injury case arising out of an intentional criminal act.

Sam Hasty shot William Spruill in the face and shoulder with a shotgun. He was indicted for aggravated assault, for being a convicted felon in possession of a firearm, and on several other charges. Spruill filed a civil action seeking damages as a result of the incident. In the criminal case, Hasty entered a guilty plea to the charges of aggravated assault and being a convicted felon in possession of a firearm. After Hasty’s conviction, Spruill filed a motion for summary judgment seeking judgment as to liability only. The trial court granted Spruill’s motion and this appeal resulted.

In both of Hasty’s enumerations of error, he contends that the trial court erred in granting summary judgment to Spruill on the issue of liability. We disagree.

In support of his motion for summary judgment, Spruill attached an affidavit stating, inter alia, that Hasty shot him in the face and shoulder without provocation. He also attached certified copies of Hasty’s “Petition to Enter Guilty Plea,” the conviction, and the sentence form.

Decided February 24, 1993.

B. Dean Grindle, Jr., for appellant.

Charles B. Brown, for appellee.

In opposition to the motion, Hasty offered only the affidavit of his counsel in the criminal proceeding. This affidavit stated only that there was a basis to enter a plea of not guilty. This is a legal conclusion for which no supporting facts were stated.

“[A] guilty plea is an admission against interest and prima facie evidence of the facts admitted. ...” Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991); see also Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 761 (8) (242 SE2d 483) (1978). We recognize the long standing principle that such admissions are not conclusive and may, therefore, be rebutted to create a genuine issue of material fact for the jury’s determination. See Kickasola, supra.

Where a motion for summary judgment is supported by affidavits or other evidentiary matter showing a prima facie right in the movant to have judgment rendered in his favor, the burden shifts to the opposing party to produce rebuttal evidence sufficient to create a genuine issue of material fact. See Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 567 (307 SE2d 99) (1983). Hasty failed to meet his burden of rebutting the admission contained in the guilty plea and refuting the allegation contained in Spruill’s affidavit that Spruill was shot without provocation. As noted, the affidavit he submitted in opposition to the motion for summary judgment did not set forth any facts which would indicate that the plea of guilty was premised upon anything other than Hasty’s admission of guilt. See OCGA § 9-11-56 (e). Moreover, Hasty failed to offer any other evidence bearing upon the issue of liability.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Doctors Bldg. Partners v. Grimes Bridge Assoc., 199 Ga. App. 216, 217 (2) (404 SE2d 582) (1991). Having found no genuine issue of material fact regarding Hasty’s liability, the trial court was correct in granting Spruill’s motion for summary judgment on this issue.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Cooper, Judge.

text:
    A92A1912.
    CROSBY et al. v. SPENCER.
    (428 SE2d 607)
   Cooper, Judge.

This appeal arises out of an action against appellants for damages resulting to appellee’s peach orchard from the negligent spraying of appellants’ adjacent cotton field. Following a jury verdict awarding appellee $93,007.45 in damages for future lost profits, appellants brought this appeal from the judgment entered on the verdict and from the denial of their motions for judgment n.o.v. and new trial.

The trial transcript reveals that appellee and his stepfather operated a fruit and vegetable farm in Brooks County, Georgia. In 1983, they expanded their farming operation and leased an additional 44 acres of land on which they planted peaches. Appellee and his stepfather also planted peach trees on another part of the farm (hereinafter referred to as “the homeplace”). The homeplace and the 44-acre tract were farmed as one unit. The peach trees on the 44-acre tract were planted at the same time as those on the homeplace and were of the same size, type, quality and general health. Appellee testified that the soil on the 44 acres was of the same kind and quality as that on the homeplace and that the trees on the 44-acre tract received the same kind of care and treatment as those on the homeplace.

In 1988, appellants, who had been in the cotton farming business for many years, began farming cotton on a tract of land adjacent to appellee’s 44-acre tract. In previous years, appellants had sprayed their cotton crops with the herbicide MSMA, and on or about June 30, 1988, appellants sprayed the cotton crops on the new tract with MSMA. Appellants utilized an over-the-top manner of application rather than a method where the MSMA was applied at ground level. Between June 20 and June 25, 1988, appellee inspected the trees on both the 44-acre tract and the homeplace and observed that the trees were in good condition. However, during another inspection approximately two months later, appellee observed massive defoliation of the peach trees on the 44-acre tract while the peach trees on the homeplace remained in good condition. In December 1989, after consulting with numerous agricultural experts, appellee was forced to destroy the trees on the 44-acre tract. Appellee continued to harvest peaches on the homeplace through 1991.

Appellee presented expert testimony that MSMA is deadly to peach trees; that MSMA particles are capable of drifting through the air; that an over-the-top application is more susceptible to drift than application at ground level; that the damage to appellee’s peach trees was caused by something that drifted from the direction of appellants’ cotton; and that the damage to appellee’s peach trees was typical of damage caused by drifting MSMA.

1. In their first enumeration of error, appellants contend that appellee’s evidence of future lost profits was insufficient. Appellants argue that appellee failed to present any evidence regarding the production of the peach trees on the 44-acre tract between 1983 and 1989, and thus failed to establish a “track record” from which anticipated lost profits could be projected. See Molly Pitcher Canning Co. v. Central &c. R. Co., 149 Ga. App. 5, 10 (4) (253 SE2d 392) (1979). During his testimony at trial, appellee explained that the average life of a peach tree is 12 years and that prior to 1988, he never had a full harvest of peaches because his peach trees were not fully grown. However, appellee was able to calculate the net profits he realized per tree on the homeplace for the years 1990 and 1991 and the projected per tree profits for the trees on the homeplace for the years 1992 and 1993. Appellee then applied the per tree calculations to the trees he lost on the 44-acre tract as a result of appellant’s negligence and computed a net loss of $85,935.42 for the years 1990 and 1991 and a net loss of $69,090.35 for the years 1992 and 1993. “The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted. [Cit.]” Ayers v. John B. Daniel Co., 35 Ga. App. 511, 512 (1) (133 SE 878) (1926). Consequently, “[l]ost profits are recoverable as damages if such are shown with reasonable certainty. [Cits.]” DeVane v. Smith, 154 Ga. App. 442, 443 (1) (268 SE2d 711) (1980). Appellee presented evidence regarding the similarities between the trees and soil conditions on the 44-acre tract and those on the homeplace. Appellee then gave extensive testimony regarding his computation of lost profits from the 44-acre tract based on his calculation of net profits realized from the peach trees on the homeplace subsequent to the destruction of the trees on the 44-acre tract. We conclude that appellee’s evidence provided the jury with a reasonable and sufficient basis to determine appellee’s lost profits with respect to the trees on the 44-acre tract.

2. Appellants allege that there was insufficient evidence to allow the jury to reduce its award to present value. Appellee presented evidence that his total damages for future lost profits was $155,025.78, but the jury’s award was only for $93,007.45. The trial judge charged the jury that any award for future losses should be reduced to present cash value and gave the jury a formula to assist them in that calculation. Appellants did not object to the charge, and we will presume that the jury’s verdict properly reduced the award to its present value. Union Camp Corp. v. Daley, 188 Ga. App. 756 (6) (374 SE2d 329) (1988).

3. Appellants next argue that the trial court erred in admitting evidence regarding the homeplace orchard because the homeplace was a separate and distinct parcel of land from the 44-acre tract. “ ‘[Ajdmissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. (Cit.) . . .’ [Cit.]” American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 709 (9) (391 SE2d 688) (1990). In light of appellee’s evidence regarding the similarity of the two parcels of land and their proximity to one another and his testimony that he considered the parcels as one unit, we find no abuse of discretion in the admission of evidence regarding the homeplace.

4. In their fourth enumeration of error, appellants contend that the trial court erred in excluding evidence regarding the spraying of MSMA on another cotton field adjoining appellee’s property. Appellants contend that the damage to appellee’s peach orchard could have been caused by the owner of a cotton field which adjoined the west side of appellee’s property. It is undisputed that appellee filed a separate lawsuit for negligent MSMA spraying against the owners of land adjoining the west side of appellee’s property to recover for damage which occurred on the western side of appellee’s property. However, appellee’s claim against appellants was only for damage which occurred on the southern side of his peach orchard. The trial judge excluded evidence relating to any damage which may have been caused by the western property owners but ruled that if appellants could connect the spraying of MSMA by the western property owners with any damage occurring on the southern side of appellee’s property, he would allow evidence of spraying by the western property owners. “ ‘Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. . . . (Cit.)’ [Cit.]” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593) (1989). There is no evidence in the record of any connection between the spraying from the west side and the damage allegedly caused by appellants. Consequently, the evidence was not relevant to the issues being tried, and we find no error in the trial court’s exclusion of the evidence.

5. Similarly, we find no merit in appellants’ argument that the trial court erred in excluding a bankruptcy reorganization plan filed by appellee in 1987. Appellants contend that the plan was relevant to show the financial condition of appellee’s farm prior to the alleged negligence of appellants. The trial judge ruled that appellants could use the document to impeach appellee but that the filing of a bankruptcy petition per se was not relevant. We find no abuse of discretion in the trial court’s ruling as to relevancy. See Hendricks, supra.

6. Appellants also contend that the trial court erred in qualifying prospective jurors as to appellants’ insurer and in excusing certain prospective jurors because of their relationship with the insurer. “It is proper to qualify the jury relative to the possible interest which the members may have in an insurance carrier having a financial interest in the outcome of the suit.” Weatherbee v. Hutcheson, 114 Ga. App. 761, 764 (1a) (152 SE2d 715) (1966); see also OCGA § 15-12-135. Contrary to appellants’ assertions, Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) did not change the longstanding rule in this state regarding qualification of jurors.

7. Appellants’ argument that qualification of the jury as to the insurer opened the door for evidence of the limit of their liability insurance is likewise without merit. “ ‘(I)rrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.’ [Cit.]” Moore v. Price, 158 Ga. App. 566, 568 (1) (281 SE2d 269) (1981).

8. Appellants complain that the trial court erred in refusing to charge the jury on comparative negligence. “ ‘It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. OCGA § 5-5-24 (a).’ [Cit.] In the case sub judice, [appellants] never complained of the trial court’s [failure to] charge on comparative negligence. Further, we find no blatant or prejudicial error in the charge of which the [appellants] complain. See OCGA § 5-5-24 (c). Consequently, this enumeration presents nothing for review.” Isaacs v. Williams Bros., 195 Ga. App. 812-813 (2) (395 SE2d 11) (1990).

9. In their final enumeration of error, appellants contend that the trial court erred in not allowing them to present sur-rebuttal evidence. The record reflects that appellee presented two rebuttal witnesses, after which appellants requested that they be allowed to call a sur-rebuttal witness. The testimony of appellee’s rebuttal witnesses was merely cumulative of other evidence presented during appellee’s case, and there were no surprises which resulted from their testimony. Compare Haley v. Oaks Apts., Ltd., 173 Ga. App. 44, 46 (3) (325 SE2d 602) (1984). Furthermore, the witness appellants requested to call testified during appellants’ case, and appellants did not indicate that the witness’ testimony would be anything but cumulative of his previous testimony. Accordingly, we find no error with the trial judge’s ruling.

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

Decided February 24, 1993.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, for appellants.

The Ellerbee Law Firm, 0. Wayne Ellerbee, Clifton G. Spencer, for appellee.


text:
    A92A1963.
    GIBSON v. THE STATE.
    (428 SE2d 421)
   Andrews, Judge.

Gibson appeals from his conviction by a jury of various offenses related to violations of the Georgia Controlled Substances Act. His timely motion for a new trial was denied on January 24, 1992. No notice of appeal was filed within 30 days, but on February 21, 1992, appellant obtained an order from the trial court extending the time for filing a notice of appeal to March 31, 1992. Thereafter, on March 31, 1992, a second order was entered extending the time for filing a notice of appeal to April 30, 1992. The notice of appeal was filed on April 29, 1992.

“The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citations and punctuation omitted.) Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978). “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial . . . has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a). “Any judge of the trial court . . . may, in his discretion, . . . grant extensions of time for the filing of . . . [a] [n]otice of appeal .... Only one extension of time shall be granted for filing of a notice of appeal. . . and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” OCGA § 5-6-39 (a), (c).

Since neither the trial court nor this court has jurisdiction to. grant more than one extension, or any extension of more than thirty days for the filing of a notice of appeal, the trial court’s two extensions purporting to extend the filing time for more than thirty days were a nullity. Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874 (377 SE2d 730) (1989). Gibson did not move for an out-of-time appeal. In the absence of a timely filed notice of appeal, or the grant of an out-of-time appeal, this court is without jurisdiction to consider the merits of the case, and the appeal must be dismissed. Watson v. State, 202 Ga. App. 667 (415 SE2d 306) (1992); Sharpe v. State, 198 Ga. App. 381 (401 SE2d 586) (1991); Hamby v. State, 162 Ga. App. 348 (291 SE2d 724) (1982).

Decided February 24, 1993.

J. Tracy Ward, for appellant.

Major Gibson, pro se.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

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


author: Pope, Chief Judge.

text:
    A92A2089.
    HUGHES v. DULOCK.
    (428 SE2d 406)
   Pope, Chief Judge.

Plaintiff Patricia L. Dulock brought this action against defendant Kenneth Payne Hughes seeking a determination that defendant is the father of her minor child and an award of child support. The petition also contained a prayer for an award of temporary child support. A hearing was held on defendant’s motion for a protective order in regard to certain discovery requests and on plaintiff’s request for temporary child support and for an order requiring defendant to submit to a blood test. Afterwards, the trial court issued an order directing defendant to pay temporary child support of $100 per week for a period of eight weeks, to be refunded in the event defendant is ultimately determined not to be the father of the child who is the subject of this action. A second order was issued awarding plaintiff the sum of $150 temporary child support from the date of the expiration of the first order until further order of the court. This order also denied defendant’s request for a certificate of immediate review.

When the defendant failed and refused to make payments in accordance with the second order, the plaintiff filed an application for an order of contempt against the defendant. Pursuant to a hearing on the plaintiff’s application, the trial court issued an order declaring defendant to be in contempt of court and ordering him to be incarcerated. The trial court, however, stayed the order of incarceration and granted defendant’s request for a certificate of immediate review and this court granted defendant’s application for interlocutory appeal.

1. In his first two enumerations of error, defendant argues the order granting temporary child support absent a finding of paternity is erroneous because it is a violation of law and of his constitutional right to due process. We agree.

Pursuant to OCGA § 19-11-14: “Whenever a man has been adjudicated by a court of competent jurisdiction as the father of a child born out of wedlock or whenever he has acknowledged paternity under oath in an administrative hearing, in court, or by verified writing, he shall be legally liable for the support of the child in the same manner as he would owe the duty of support if the child were his child born in wedlock. The right of the child born out of wedlock to receive such support is enforceable in a civil action, notwithstanding any other provision of law.” In this case, no adjudication has been made concerning defendant’s paternity of the child. The record contains a document bearing defendant’s signature wherein defendant identified himself as the child’s father and consented to the adoption of the child (although the record shows the mother ultimately did not give up the child for adoption). The document, although it was notarized, does not contain a sworn admission that defendant is the child’s father. Thus, the record contains no evidence upon which an award of child support may be based. In Weaver v. Chester, 195 Ga. App. 471 (393 SE2d 715) (1990), this court declared that the right to enforce the obligation of child support through legal process arises only after a judicial determination of paternity, although once paternity is legally established, the father may be required to pay back support for past expenditures made on behalf of the child. See also Department of Human Resources v. Carlton, 174 Ga. App. 30 (329 SE2d 181) (1985). The Georgia Supreme Court declared it to be a deprivation of due process to compel a putative father to pay costs associated with an action to establish paternity prior to a hearing on the merits of the allegation of paternity. Boone v. State of Ga., 250 Ga. 379 (297 SE2d 727) (1982). Likewise, it is a denial of due process to order defendant to pay temporary child support prior to an adjudication of paternity.

Although only the order declaring defendant to be in contempt of court is the subject of the trial court’s certificate of immediate review and this court’s grant of interlocutory appeal, this court has authority pursuant to OCGA § 5-6-34 (d) to review the earlier orders of temporary child support in this case. Thus, we reject plaintiffs argument that defendant waived his right to contest the orders because he acquiesced in making payments under the first order. Moreover, that order expressly acknowledged defendant’s right to contest the award of temporary child support and the second order awarding temporary child support included a denial of defendant’s request for a certificate of immediate review.

2. Having concluded the trial court erroneously ordered the payment of temporary child support prior to a determination of paternity, it follows that it also erred in holding defendant in contempt of court.

3. Defendant’s argument that he is entitled to reimbursement for payments made under the original order, however, is not properly before this court because the issue was not raised below.

Decided February 24, 1993.

Andersen, Davidson & Tate, Gerald Davidson, Jr., Larry C. Old-ham, for appellant.

P. Samuel Huff, for appellee.

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


text:
    A92A2118.
    YORK v. THE STATE.
    (428 SE2d 113)
   Pope, Chief Judge.

Defendant Sylvester York was convicted of armed robbery and three counts of aggravated assault. He appeals following the denial of his motion and amended motion for new trial.

1. Defendant first contends the trial court erred in denying his motion for new trial because the evidence failed to establish that he was the perpetrator of the crimes charged. Construed so as to support the verdict, the evidence adduced at trial showed the following: Vanando Smith, a confidential informant working with the East Point Police Department, approached a group of people standing in the street in the Martel Homes area and inquired about purchasing cocaine. According to the informant, defendant Sylvester York gave him a beeper number to call to arrange a drug buy. The informant subsequently called the number and a woman named Cynthia Mattox spoke with him and a meeting was set up. The informant, along with several members of the East Point Police Department, proceeded to the pre-arranged location. One of the officers, Detective Richey, gave the informant $600 in “flash money” and he and the two other officers concealed themselves nearby. Co-defendant Joe Starr, who was tried and convicted with defendant, and another man who was wearing a mask and brandishing a gun, approached the informant and demanded that he hand over the money. The informant testified that he recognized the voice and the clothes of the man wearing the mask and identified defendant York as that person. The informant turned over the money and York remarked that it was not the entire $1,000. The informant directed the defendants to a bag near where the officers were hiding and told the defendants the remainder of the money was under the bag. While Starr was attempting to locate the money under the bag, Detective Richey came out of the bushes and ordered the defendants to freeze. York fired three shots in the direction of the officers and both defendants started running. York ran to the edge of some nearby woods, fired twice more in the direction of the officers, removed his mask and ran into the woods. Two of the officers testified they recognized York when he removed his mask, and they radioed other officers in the area to be on the lookout for him. Defendant York was apprehended a few minutes later when he walked up to a marked patrol car located near the vicinity of the shooting and told the officer in the car that his friends were being shot at. When officers searched York, they found the marked bills Officer Richey had given the confidential informant to use as flash money for the drug buy. A gun and mask like the one the perpetrator had worn were subsequently found near the vicinity of the crime.

In support of his enumeration that the evidence is insufficient, defendant points to certain inconsistencies in the testimony and evidence presented at trial, such as the fact that two different police officers both testified that they removed the $600 in marked bills from defendant’s person. “ ‘The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness ... for it is the function of the triers of fact to determine to what evidence it gives credence. (Cit.) It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. (Cit.)” Nguyen v. State, 201 Ga. App. 132, 133 (410 SE2d 340) (1991). See also Blackshear v. State, 199 Ga. App. 839 (1) (406 SE2d 269) (1991). Applying the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence adduced at trial sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes charged. Ledbetter v. State, 202 Ga. App. 524, 525 (3) (414 SE2d 737) (1992); Blackshear, 199 Ga. App. at 839 (1). Consequently, the trial court did not err in denying defendant’s motion for new trial.

2. Defendant next contends that his trial counsel was ineffective. “To establish ineffective assistance of counsel, ‘ “(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.” (Cits.)’ Williams v. State, 257 Ga. 311, 312 (2) (357 SE2d 578) (1987).” Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598) (1991).

(a) Defendant argues the testimony of the State’s witnesses was inconsistent and that trial counsel’s failure to use these contradictory statements to impeach the testimony of the witnesses denied him his right to cross-examine and confront the witnesses offered against him at trial. First we note that some of the instances defendant urges as examples of conflicting or inconsistent testimony do not appear from our review of the record to be in fact inconsistent. For example, Officer Richey did not testify that the confidential informant had been working with him for only six months, as defendant argues on appeal, but that the confidential informant had been working with him for approximately six months. Thus, other evidence indicating that the informant had been working as an informant for more than six months was not inconsistent with the officer’s testimony giving an approximate time period. Moreover, the record shows that trial counsel did conduct effective cross-examination in this case and that he later used the seeming conflicts in the evidence to defendant’s advantage in his closing remarks to the jury. “ ‘The decisions on which witnesses to call, whether and how to conduct cross-examinations, . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. . . . The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense.’ (Citations and punctuation omitted.) Stripling v. State, 155 Ga. App. 636, 637 (2) (271 SE2d 888) (1980).” Sleeth v. State, 201 Ga. App. 324, 326 (a) (411 SE2d 79) (1991).

(b) Defendant also contends that his counsel failed to object to hearsay and leading questions propounded by the State. Although defendant argues that counsel’s inaction made it easier for the State to prove its case against him, defendant does not otherwise evoke prejudice on account of these alleged deficiencies. “[S]uffice it to say that based on our review of the transcript, we conclude that there is no reasonable probability that any of the alleged deficiencies in question had any effect on the outcome of the trial.” Noland v. State, 202 Ga. App. 125, 127 (2) (413 SE2d 509) (1991).

(c) Defendant argues that his trial counsel did not know how to introduce documents relating to the confidential informant’s criminal record in order to impeach his testimony at trial. Our review of the record shows that trial counsel established, through cross-examination, the prior criminal record of the witness and that the documentary evidence relating to such criminal activity on the part of the witness subsequently was also admitted into evidence at trial. This contention, therefore, is without merit.

(d) Defendant also contends trial counsel failed to present witnesses on his behalf. However, tried counsel testified at the motion for new trial hearing that after he subpoenaed the witnesses in question they indicated that they would not testify, and that they were fearful that perjury charges might be brought against them if they did testify. Trial counsel further testified that he advised his client that the witnesses might offer unfavorable testimony and defendant stated he did not want the witnesses to testify. “ ‘This court has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.’ (Punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).” Jacobson v. State, 201 Ga. App. 749, 752 (5) (a) (412 SE2d 859) (1991). Although defendant testified at the hearing and denied the occurrence of the conversation about the witnesses testifying, “[djetermination of the witnesses’ credibility is, of course, within the discretion of the trier of fact.” (Citations and punctuation omitted.) Lee v. State, 205 Ga. App. 139, 140-141 (421 SE2d 301) (1992). “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ . . . [Cit.] Accordingly, as there is evidence supporting the trial court’s finding, the trial court did not err by concluding that [defendant] failed to establish that he was denied the effective assistance of counsel within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)].” Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

3. Defendant also contends that his trial counsel refused to allow him to testify, and that trial counsel did not inform him of his right to testify or discuss with him the consequences of his failure to testify in his own behalf at trial. Trial counsel testified at the motion for new trial hearing that he and the defendant discussed whether defendant would testify at trial both before and during the trial and that defendant initially insisted that he would testify. Trial counsel further testified that after co-defendant Starr’s testimony, defendant changed his mind and indicated that he did not want to testify. Counsel said he then explained to defendant that his decision not to testify “wouldn’t be held against him by law but the jury may look at it. . . a little odd that he didn’t get up and testify. Since especially the codefendant had testified.” Trial counsel also explained that his trial strategy, in concurrence with Starr’s counsel, was that neither defendant nor Starr would testify “in light of the facts we had” but that he was not surprised when Starr decided to testify because he kept changing his mind throughout trial.

The decision concerning a defendant’s testifying in his own behalf at trial is a tactical one and as such will not be questioned by this court. Allsop v. State, 196 Ga. App. 379, 382 (396 SE2d 47) (1990). Although defendant and trial counsel gave conflicting testimony at the hearing on the motion for new trial concerning defendant’s contentions on appeal, we reiterate that it was the function of the trial court hearing the evidence presented at the hearing on defendant’s motion for new trial to determine witness credibility and resolve these conflicts. Lee v. State, 205 Ga. App. at 140.

Decided February 24, 1993.

Stewart A. Anshell, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Grover W. Hudgins, Rebecca A. Keel, Assistant District Attorneys, for appellee.

4. In his seventh enumeration of error, defendant contends that the prosecutor made certain improper remarks in closing argument to the jury. The record shows, however, that no objection was interposed at trial to the statements which defendant now contends constituted reversible error. “ ‘(I)t has been held that, unless the court’s attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time [on appeal]. [Cit.] ‘When an improper argument is made, whether substantive or procedural, opposing counsel has a duty to act by interposing an objection.’ [Cit.]” Williams v. State, 251 Ga. 749, 801 (14) (312 SE2d 40) (1983). See also Hudson v. State, 250 Ga. 479, 484 (4) (299 SE2d 531) (1983). Consequently, this enumeration is without merit.

5. We have examined defendant’s fourth, fifth and sixth enumerations of error and find them also to be without merit.

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

       In addition to challenging the sufficiency of the evidence, defendant also argues in his brief that the trial court erred in failing to charge the jury on the provisions of OCGA § 24-4-6 which provide when a conviction is authorized based on circumstantial evidence. However, inasmuch as enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumerations, we will not herein consider defendant’s argument concerning the trial court’s charge to the jury. See, e.g., Loyd v. State, 202 Ga. App. 1 (1) (c) (413 SE2d 222) (1991).

       Co-defendant Starr’s conviction was affirmed by this court in Starr v. State, 201 Ga. App. 73 (410 SE2d 180) (1991).


text:
    A92A2134.
    CONNERLY v. THE STATE.
    (428 SE2d 408)
   Andrews, Judge.

Connerly was convicted by a jury of armed robbery, two counts of aggravated assault, theft by taking, two counts of kidnapping, and possession of a firearm during the commission of a crime. Viewed in favor of the convictions, the evidence showed that Connerly and his co-defendants assaulted the victim and his son with a shotgun outside a DeKalb County convenience store. The victim and his son were forced at gunpoint into the victim’s automobile, then taken to a series of automatic teller machines, where Connerly and his accomplices took money the victim was forced to withdraw from his accounts. The automobile was then driven to South Carolina, where the victim and his son were forced out, and Connerly and the co-defendants took the car.

Connerly claims the trial court erred by finding that his statement to the police was voluntary and admissible as evidence in the state’s case-in-chief. At a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine whether the statement was voluntary, evidence showed that after having earlier requested counsel, Connerly contacted the police from the jail where he was being held, and said he wanted to talk about the charges. A police officer met with him pursuant to his request, and advised him of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). After verbally acknowledging that he understood these rights, Connerly signed a form waiving these rights, and gave a written, signed statement to the officer confessing his participation in the charged offenses. The officer testified that Connerly appeared to understand all of these communications, and that no coercion, threats, or promises of any kind were utilized to obtain the waiver of rights and statement. Connerly testified at the hearing that he did not initiate the conversation with the police but was brought to the interrogation room, where, in a confused condition, he succumbed to pressure and promises of leniency, and signed the waiver of rights form and the statement.

Prior to using Connerly’s statement as part of the state’s case-in-chief, the state must demonstrate that the statement was voluntarily given, and that the accused was afforded the procedural safeguards against self-incrimination set forth in Miranda, supra, which includes the right to counsel, and the right to have counsel present during questioning. The record reflects that prior to the questioning at issue, Connerly had requested appointed counsel. Once a suspect requests counsel, all questioning must cease and may not resume without counsel present, whether or not the suspect has consulted with counsel, unless the suspect initiates the conversation with police, and voluntarily and knowingly waives his rights. Minnick v. Mississippi, 498 U. S__(111 SC 486, 112 LE2d 489) (1990); Smith v. Illinois, 469 U. S. 91, 95 (105 SC 490, 83 LE2d 488) (1984); Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). The trial court found that Connerly initiated the contact with the police, was informed of his rights and waived them, and freely and voluntarily gave the statement without being subjected to any threats or promises. In ruling that the in-custody statement given by the accused was admissible, the trial court must upon consideration of the totality of the circumstances, be satisfied by a preponderance of the evidence that the statement was freely and voluntarily given, and the court’s ruling, including findings as to factual matters and credibility, will not be disturbed on appeal unless clearly erroneous. Kincey v. State, 191 Ga. App. 300, 301 (381 SE2d 439) (1989); Lindsey v. State, 196 Ga. App. 67 (395 SE2d 328) (1990); McDaniel v. State, 204 Ga. App. 753, 754 (420 SE2d 636) (1992); Hayes v. State, 203 Ga. App. 143, 145 (416 SE2d 347) (1992); Barrs v. State, 202 Ga. App. 520, 521 (414 SE2d 733) (1992). There was no error in admitting the statement. The evidence was sufficient to sustain the convictions under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 24, 1993.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Stacy Y. Cole, Assistant District Attorneys, for appellee.

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


text:
    A92A2219.
    JENKINS v. THE STATE.
    (428 SE2d 410)
   Pope, Chief Judge.

Defendant Dennis Earl Jenkins was convicted of arson in the first degree and appeals on the grounds that the evidence was insufficient to sustain the conviction and, for that reason, the trial court erred in denying his motion for directed verdict of acquittal.

The evidence was wholly circumstantial. Evidence was presented that defendant was involved in a stormy relationship with a woman who lived at the house at issue in this case. The fire erupted at approximately 4:30 a.m. In the evening and early morning hours before the fire erupted, defendant and the woman had a heated disagreement. The woman testified defendant left the premises at approximately 2:00 a.m. He was later seen driving his truck around the neighborhood and approximately 15 minutes before the fire was noticed, he parked his truck in a nearby driveway, walked around and stood and stared at the house. When the fire was discovered, defendant was the first to arrive at the scene, driving up in his truck with his brother, who lived less than one-half mile away. He told several people he had come because he had been asleep and dreamed that the house was on fire. An expert witness who examined the scene testified he discovered no evidence to support the conclusion that the fire had started by accident and concluded from the evidence that the fire had started by setting the window curtains in one of the bedrooms on fire. One of the residents of the house described how the windows in that bedroom could be opened.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “A reasonable hypothesis as used in this Code section refers only to such reasonable inferences as are ordinarily drawn by ordinary [persons] in the light of their experience in everyday life; it does not mean that the act might by bare possibility have been done by someone else [or by some other means than a criminal act].” (Citations and punctuation omitted.) Sanford v. State, 193 Ga. App. 18 (1) (386 SE2d 899) (1989). “In order to justify the inference of guilt beyond a reasonable doubt, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. When a jury hears the evidence, it decides questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law.” (Citations and punctuation omitted.) Redwine v. State, 188 Ga. App. 638 (373 SE2d 804) (1988).

Decided February 24, 1993.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Given the evidence of defendant’s motive, opportunity and his statement at the scene that was inconsistent with the observation of other witnesses, the jury was authorized to find that every reasonable hypothesis save that of guilt was excluded. We conclude the evidence in this case was sufficient, as a matter of law, to support the verdict.

Judgment affirmed. Corley, P. J., and Johnson, J., concur.