text:
    A89A0132.
    NOBLES v. THE STATE.
    (382 SE2d 637)
   Sognier, Judge.

Richard Jason Nobles was indicted for the offenses of murder and possession of a knife during the commission of a felony. Nobles was found guilty of voluntary manslaughter and also was convicted on the possession charge. He appeals.

The evidence adduced at trial reveals that appellant, a juvenile five weeks shy of his 17th birthday at the time of the incident, the evening of July 3, 1987, arrived uninvited at a party held by Ricky Harvey. Appellant was accompanied by his girl friend, Christie Kent, Arnold Howard, and Howard’s girl friend. Howard testified that because of prior altercations between Howard and several of the invited guests, he gave appellant a knife. After Kent went inside the residence to use the bathroom she became involved in a fight with another girl which spilled into an area outside the residence. The evidence conflicts as to what happened, but construing the evidence to support the verdict it appears that several of the guests either joined in the fight or entered the fray in order to break up the fight. Witnesses testified they saw the victim, Edwin Jenkins, disassociate himself from the crowd of teenagers observing the fight and return to the house. While inside, Jenkins was stabbed with a knife and later died from his injuries. Kent’s sister testified that around midnight appellant arrived at her home, covered in mud, and told her he believed he had stabbed someone. She hid appellant and her sister at the unoccupied home of a recently deceased relative until appellant decided to go to the police with his brother. The knife Howard gave appellant was retrieved from the swamp between Ricky Harvey’s home and the residence of Kent’s sister.

At trial appellant testified he had stabbed Jenkins, whom he did not know, because Jenkins was beating up Kent in the aforementioned fight. The statement appellant gave the police, which was admitted at trial, was consistent with appellant’s trial testimony.

1. (a) Appellant contends the trial court erred at the hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), by failing to suppress the statement he made to the police on the bases that the statement was not voluntary, that appellant was denied his right to counsel after invoking that right, and that the statement was the product of an illegal arrest.

Appellant, in the company of his 21-year-old brother, Barr Nobles, voluntarily went to the police department around 2:00 a.m. on July 4th. The officers, who were in the process of interviewing Howard at that time, immediately ended their discussion with Howard when informed that appellant had arrived, and escorted appellant and his brother into an interview room. A taped interview was initiated, and the transcript reveals that after inquiring into appellant’s address, age, education, and related matters, Detective Robert Merriman asked appellant whether he had had anything to drink that night (to which appellant replied negatively), then informed appellant that before they discussed what happened earlier that evening, “I’m going to have to advise you of certain constitutional rights.” Merriman began to read appellant his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)), asking both appellant and his brother whether they understood each right as read. Merriman informed appellant that he had the right to talk to a lawyer before he answered any questions and to have that lawyer present during questioning. Then, according to the transcript of the statement, the following occurred:

Appellant: “You say I can have an attorney right now?”
Det. Merriman: “If you wanted one.”
Appellant: “I would like one.”
Det. Merriman: “You don’t want to talk about the matter?”
Appellant: “Oh, okay, I’ll go ahead and talk about the matter.”

We agree with appellant that his initial invocation of his right to counsel could not have been clearer or less equivocal, and therefore reject the State’s argument that the detective’s subsequent conversation with the appellant served to “clarify” appellant’s request. Nor can we agree with the State that the conversation which followed appellant’s request, in which the detective inquired several times whether appellant wanted an attorney, repeatedly asked appellant if he understood what the detective was saying, and elicited from appellant’s brother the statement that appellant did want an attorney but he wanted to go ahead and tell the police his side of the story, “but he does want an attorney if there are any charges pressed against him,” can be used to cast doubt on the clarity of appellant’s initial request. See Smith v. Illinois, 469 U. S. 91 (105 SC 490, 83 LE2d 488) (1984).

“Edwards [V. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981)] set forth a ‘bright-line rule’ that all questioning must cease after an accused requests counsel. [Cit.] In the absence of such a bright-line prohibition, the authorities through ‘badger(ing)’ or ‘overreaching’ — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. [Cits.]” Smith v. Illinois, supra at 98. The trial court here, as in Allen v. State, 259 Ga. 63 (377 SE2d 150) (1989), erred by examining the “totality of the circumstances” to decide whether appellant’s request for counsel was clear or equivocal.

Appellant’s statement was taken in violation of his Fifth Amendment right to counsel, and, under U. S. Supreme Court precedent, should have been excluded from the State’s case in chief. We do not agree with the State that its violation of appellant’s constitutional rights was not relevant because he was not in “custody” at the time he gave the statement. The cases cited by the State are inapposite either because the statement sought to be suppressed was given by a defendant not read his Miranda rights because he was not yet in custody although present in a police station or jail house, see Hardeman v. State, 252 Ga. 286, 287-288 (1) (313 SE2d 95) (1984), or was given by a defendant who was read an incomplete list of his rights unnecessarily because he was not in custody, but who nevertheless voluntarily waived the rights he was read. See Beckwith v. United States, 425 U. S. 341 (96 SC 1612, 48 LE2d 1) (1976). The transcript of the statement clearly reveals that the police officer who read appellant his rights felt he had to so advise appellant, thereby demonstrating that the police themselves considered appellant to be a suspect so as to mandate informing appellant of his Miranda rights. See generally Cook v. State, 165 Ga. App. 234, 235 (2) (299 SE2d 157) (1983).

(b) However, even without appellant’s statement, and contrary to appellant’s eighth enumeration of error, the evidence in this case was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support the conviction for voluntary manslaughter. “It cannot be said, however, that the constitutional error was harmless beyond a reasonable doubt. [Cit.]” Allen, supra at (1) (c). Therefore, the judgment must be reversed for a new trial.

2. Our holding above renders it unnecessary to address appellant’s second enumeration of error.

3. The record does not support appellant’s contention that the juvenile court judge in the transfer hearing adjudicated the issues and found appellant guilty of voluntary manslaughter. Rather, it is clear that in the order to which appellant refers, the juvenile court was not adjudicating the charge but instead was acting pursuant to OCGA § 15-11-39 (a) (3) (A) and merely determining that there were reasonable grounds to believe that appellant committed the delinquent acts alleged. Therefore, we find no error in the trial court’s denial of appellant’s plea of double jeopardy. Compare In re T. E. D., 169 Ga. App. 401 (312 SE2d 864) (1984).

4. Appellant contends the trial court erred by denying his motion to quash the indictment and transfer the case back to juvenile court because the juvenile court failed to comply with the provisions of OCGA § 15-11-39 (a). As noted above, the juvenile court fully complied with OCGA § 15-11-39 (a) (3) (A); the record reveals that appellant’s counsel stipulated to a report finding that appellant was not in need of commitment to an institution for the mentally retarded or mentally ill under OCGA § 15-11-39 (a) (3) (B); and no question exists regarding appellant’s age for purposes of OCGA § 15-11-39 (a) (4). OCGA § 15-11-39 (a) (3) (C) requires the juvenile court to determine there are reasonable grounds to believe that “[t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.”

“[T]he transfer statute continues to subsume ‘the juvenile’s amenability to treatment within the concept, “the interest of the child,” and authorizes a juvenile court to transfer to the superior court a juvenile who is amenable to treatment if the juvenile court finds that the amenability factor is outweighed by the interests of the community in processing the child as an adult.’ [Cit.] Hence, there has been preserved the requirement that the state carry the burden of showing that the child is not amenable to treatment or rehabilitation. [Cit.]” (Footnote omitted.) In re E. W., 256 Ga. 681, 682 (353 SE2d 175) (1987).

In the case sub judice, the assistant district attorney set forth for the juvenile court without objection from appellant’s counsel appellant’s prior violations of the law, the probations on which he had been placed and the terms thereof, the problems appellant had with his probation officer which resulted in extra conditions being affixed to his probation, and appellant’s participation in a drug rehabilitation program in California and attendance at various local treatment centers. Appellant’s history encompassed a period from July 1984 to July 1987. In its order, the juvenile court referenced these early offenses and treatment efforts, and noted the “sad state of affairs in juvenile justice in Georgia” which in his view resulted in a lack of facilities and programs to treat the older juvenile violent offender on a long-term basis. Against these considerations, the juvenile court balanced the nature of the crime for which appellant was charged, which had resulted in the death of another, appellant’s age, appellant’s three years of treatment in the juvenile justice system, and the inadequate treatment facilities in Georgia for older juveniles who have been found to have committed violent offenses. Based on these expressed considerations, the juvenile court ordered the transfer pursuant to OCGA § 15-11-39.

We find the transfer order realistically reflected why appellant was not amenable to treatment as a juvenile and that the decision was based on evidence clearly reflected in the transfer order itself. See generally C. L. A. v. State, 137 Ga. App. 511, 512-513 (5) (224 SE2d 491) (1976); compare In re E. W., supra. Accordingly, we find no error in the trial court’s denial of appellant’s motion to quash the indictment and transfer appellant’s case back to the juvenile court.

5. A scientific report containing the results of tests performed on the knife was printed at the State Crime Lab on April 12, 1988 in response to inquiries by the prosecution in this case. Although proper motion for such reports had been made pursuant to OCGA § 17-7-211 (b), appellant was not provided a copy of the report until the day of trial, April 25, 1988. The trial court denied appellant’s motion for a continuance, and appellant enumerates as error the admission of the tests and testimony regarding same and the denial of his motion for a continuance.

The State asserts it did not inform appellant’s counsel of the existence of the report because the assistant district attorney thought the crime lab would promptly send the report in time for a copy of the report to be delivered to appellant’s counsel within the ten-day period set forth in OCGA § 17-7-211 (b). The State also argues that appellant’s failure to receive the report in the timely fashion required by statute did not prejudice appellant’s case because the test results were “equally helpful and harmful to both the State and the defense.” We do not agree. “The General Assembly has seen fit to provide certain discovery rights to criminal defendants, and it is the duty of this court to give full force and effect to all provisions of that statute. [Cits.]” Tanner v. State, 160 Ga. App. 266, 268 (287 SE2d 268) (1981). However, in view of our holding in Division 1 reversing the judgment for a new trial, we remand this case with direction that testimony and evidence arising from this scientific report be excluded and suppressed from any retrial of this case unless and until the district attorney has fully complied with the provisions of OCGA § 17-7-211. Tanner, supra at 268-269.

6. The State concedes it failed to make known to appellant prior to trial the evidence in aggravation used by the State in the sentencing phase of the trial as required by OCGA § 17-10-2. However, we agree with the State that as notice was provided by the State on May 20, 1988 and the hearing was not held until June 10, 1988, adequate notice was given regarding this evidence in that appellant was provided sufficient time to investigate and interview the witnesses listed by the State in its May 20 notice. See Herring v. State, 238 Ga. 288, 290 (232 SE2d 826) (1977); Johnson v. State, 171 Ga. App. 851, 854 (1) (321 SE2d 402) (1984).

Appellant argues that the State untimely filed the victims’ impact statement under OCGA § 17-10-1.1 (d). However, “[a]n enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Scott v. State, 177 Ga. App. 474, 477 (339 SE2d 718) (1986). We therefore cannot address this issue.

7. We find no error in the trial court’s denial of appellant’s motion for directed verdict as to the charge of possession of a knife in the commission of a crime in view of testimony by Howard regarding the knife and appellant’s possession thereof. See generally Burton v. State, 184 Ga. App. 805, 806 (1) (363 SE2d 46) (1987).

8. Appellant contends error in the trial court’s failure to charge his request to charge no. 23A on homicide by accident, based on Olds v. State, 84 Ga. App. 397, 402 (5) (66 SE2d 396) (1951). At trial appellant testified he stabbed the victim because he thought the victim was assaulting appellant’s girlfriend. There was no evidence adduced at trial that appellant was attempting to stab an assailant of his girlfriend and the victim unfortunately came in between the intended victim and the blow. Thus, appellant’s requested charge discussed a principle not applicable to the facts of the case and the trial court did not err by failing to give that charge to the jury. See generally Studdard v. State, 185 Ga. App. 319, 320 (1) (363 SE2d 837) (1987).

Decided May 8, 1989

Rehearing denied May 18, 1989

Jackson & Schiavone, Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

9. We find under the facts in this case no error in the giving by the trial court of a charge on the lesser-included offense of voluntary manslaughter. See Wright v. State, 182 Ga. App. 570-571 (2) (356 SE2d 531) (1987).

10. Appellant contends the trial court erred in its charge to the jury on appellant’s sole defenses, those of self-defense and justification. Although it may have been better practice to have included explicitly all the principles set forth in OCGA § 16-3-21, upon reviewing the charge to the jury as a whole, see generally Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988), we find the trial court adequately covered those principles in its charge and find the charge as given a correct statement of the law applicable in this case. Although appellant now asserts the trial court erred by failing to charge the jury numerous of his other requests to charge, appellant did not enumerate as error the failure to give these charges and thus cannot enlarge his enumeration to include these arguments on appeal. See Scott, supra.

Judgment reversed with direction.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A0057.
    SOUTHEASTERN WHOLESALE SUPPLY COMPANY, INC. v. GUEVARA.
    (382 SE2d 685)
   Beasley, Judge.

Southeastern brought an action against husband and wife Troy and Sherrill Guevara, “d/b/a Allstate Builders,” alleging that they were indebted on an open account listed as “Allstate Builders.” Sherrill’s answer denied the material allegations of the complaint and counterclaimed for malicious use and abuse of process. She moved for sumniary judgment as to the claim against her and through discovery sought to establish that her participation in any dealings with Southeastern was on behalf of a company known as “Southland Contractors” or “Southland Contractors, Inc.” She established that she had been discharged in bankruptcy on December 11, 1986, for which she had petitioned in November 1985, and as a result Southeastern was subsequently paid its share of the bankruptcy proceeds.

Decided May 19, 1989.

Karl J. Howe, Jr., for appellant.

Louis F. Ricciuti, for appellee.

There was proof that Sherrill on behalf of her firm “Southland Contractors” signed a guaranty of payment to Southeastern in 1979. However, no showing was made that she did so on behalf of “Allstate Builders” or held herself out as acting for that company, or that Southeastern relied upon any representations by her to that effect. The court granted Sherrill’s motion for summary judgment and found that the guarantee was signed by Sherrill as an owner of “Southland” and that because she filed for bankruptcy listing the indebtedness of “Southland” with Southeastern the guarantee did not pertain to “Allstate’s” indebtedness.

Southeastern contends that it was error to grant summary judgment because genuine issues of material fact remain for determination. Reliance is placed upon OCGA § 14-8-16 which imposes liability when “a person, by words spoken or written or by conduct, represents himself ... as a partner in an existing partnership” as to one to whom the representations have been made and who on the faith of such representations extended credit to the partnership. Southeastern offers a letter from Sherrill to it, written on Southland letterhead, which included money orders of May 1986 paying for part of a March 1986 invoice to Allstate. However, it was indicated on the money orders that they were from “Allstate” and there was nothing to show that she or her company acted other than as a conduit for payment sent by her for her husband and “Allstate.”

Against the circumstantial evidence, there was positive evidence that Sherrill was neither an agent nor partner in “Allstate.” The inferences upon which Southeastern relies are not sufficient, under the test propounded in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979), to sustain a verdict. Summary judgment was proper.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Carley, Chief Judge.

text:
    A89A0095.
    VEAZEY v. F. W. WOOLWORTH COMPANY.
    (382 SE2d 411)
   Carley, Chief Judge.

Appellant-plaintiff slipped and fell in appellee-defendant’s store. She brought this action for personal injuries sustained in the fall, alleging that she had slipped as the result of stepping into standing water. After a period of discovery, appellee moved for summary judgment. The trial court granted appellee’s motion and appellant appeals from that order.

In support of its motion for summary judgment, appellee relied upon the affidavits and deposition of its employees as well as the affidavit and deposition of appellant. The evidence, when construed most favorably for appellant, shows the following: She entered appellee’s store on a rainy day and walked across an entrance lobby to the top of a stairway. She paused at the top of the stairway, placed her hand on the railing and slipped. She does not know what caused her to fall, but assumes that it must have been an accumulation of rain water on the floor. She did not actually see any such accumulation of rain water, either before or after she fell. Based upon certain actions and statements of appellee’s employees, however, she infers that there must have been rain water in the area where she fell and further infers that it must have been the rain water which caused her to fall.

Assuming without deciding that actions and statements of appellee’s employees would authorize an inference that the entry to appellee’s store was wet, “it does not prove in any measure how or why [appellant] slipped. ‘ “To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” ’ [Cit.] This record is silent as to why or how appellant slipped, or upon what.” McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15) (1984). “Whether it was water spilled or tracked in by someone else or something else altogether or nothing other than what was on her shoe, is subject to conjecture, not the finding of disputed fact. How long the condition was there, if indeed there was a condition on the floor which caused her to slip, is also subject only to speculation. Although there was no mat at the front door on this occasion, [appellant] show[s] no correlation between this fact and the slip; besides, its absence was patent. On the record in this case, [appellant has] not shown evidence which would raise a duty on the proprietor to post a sign that the floor might be slippery in the rainy weather. Consequently, [appellant] cannot show a dangerous condition, and [she] cannot show that [appellee] had superior knowledge of it or a reasonable opportunity to prevent or correct it. Such a state of the evidence prevents recovery from the proprietor. [Cit.]” Hogans v. Food Giant, 185 Ga. App. 645, 646 (2) (365 SE2d 496) (1988). The trial court correctly granted summary judgment in favor of appellee. See also Humphries v. Gulf Oil Corp., 188 Ga. App. 557 (373 SE2d 659) (1988).

Judgment affirmed.

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

Decided May 19, 1989.

David J. Llewellyn, William B. Simpson, for appellant.

R. Chris Irwin & Associates, David L. Whitman, for appellee.


author: Sognier, Judge.

text:
    A89A0740.
    STANLEY v. THE STATE.
    (382 SE2d 686)
   Sognier, Judge.

Sam Stanley was convicted of trafficking in cocaine and possessing a firearm during the commission of a felony, and he filed this appeal.

1. Appellant enumerates the general grounds. The record reveals that Officers H. C. Ewing and R. L. Summerlin of the Atlanta Police Department were participating in the operation of a roadblock in southeast Atlanta on the night of May 16, 1988, when they observed appellant drive toward the roadblock, stop abruptly, and back approximately six to eight car lengths down the street away from the roadblock. Ewing and Summerlin chased appellant on their motorcycles and cited him for improper backing. Both officers testified that as appellant emerged from the car, they smelled alcohol on his breath and noticed that his eyes were bloodshot and that he was unsteady on his feet, and as a result they arrested him for DUI and read him the implied consent rights. Summerlin testified that upon making a visual search of the car interior he discovered a gun partially concealed under the front seat, and on the floorboard a plastic bag filled with smaller bags containing what appeared to be cocaine. He testified further that while inventorying the contents of the vehicle according to the procedure for impoundment, he opened the trunk and discovered additional plastic bags filled with a chunky white powder and $155 in cash. A forensic chemist from the State crime lab testified that the bags contained a total of 33.9 grams of 35 percent cocaine. Appellant testified that he had borrowed the car from his nephew, Michael Stanley, without examining its contents, he did not back up when he saw the roadblock, he had not been drinking, and he had no knowledge of the cocaine found in the car. A police investigator testified that the car was registered in the name of Linda Diefendoff.

Given that the credibility of witnesses and the weight to be accorded their testimony is for the jury, Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988), we find the evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 19, 1989.

M. Muffy Blue, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, John M. Turner, Joseph J. Drolet, Assistant District Attorneys, for appellee.

2. Appellant also contends the trial court erred by denying his motion to suppress the evidence seized in the search of the car on the ground that the officers did not have a particularized suspicion of criminal activity when they stopped appellant and thus his arrest and subsequent search were illegal. We do not agree.

“ ‘ “We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has ‘reasonable grounds’ for such action — ‘a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ (Cit.)” (Cit.)’ [Cit.]” Coley v. State, 177 Ga. App. 669, 670 (1) (341 SE2d 9) (1986). In the instant case, appellant’s evasive action upon seeing a police roadblock and his backing of the automobile in apparent violation of OCGA § 40-6-240 (a) were “sufficient to provide reasonable suspicion that appellant was, or was about to be, engaged in criminal activity. The officers were authorized to stop the automobile and question appellant. Therefore, the arrest following [observation of appellant’s behavior consistent with DUI was] valid.” Id.; see Herkert v. State, 177 Ga. App. 610 (1) (340 SE2d 251) (1986). Consequently, the search of the passenger compartment of appellant’s car was authorized as a contemporaneous incident of a lawful custodial arrest, Coley, supra at 669 (1), and the inventory search of the trunk as part of the impoundment process also was valid. Garner v. State, 154 Ga. App. 839, 840-841 (1) (269 SE2d 912) (1980). Appellant’s contention that impoundment of the vehicle was improper because an unidentified person arrived at the scene to take custody of the vehicle is without merit, as there is no evidence this person arrived before the car was impounded or that he or she owned the car. Further, “a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” Mooney v. State, 243 Ga. 373, 375 (254 SE2d 337) (1979). Accordingly, we find the trial court did not err by denying the motion to suppress. See Coley, supra at 669-670 (1).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0798. A89A0799.
    PERFECT IMAGE, INC. v. M & M ELECTRICAL CONSTRUCTORS, INC. DIODATI v. PERFECT IMAGE, INC.
    (382 SE2d 405)
   Banke, Presiding Judge.

M & M Electrical Constructors, Inc., (hereafter referred to as M & M) brought suit against Perfect Image, Inc., to collect an account indebtedness allegedly owed by Perfect Image for services rendered. Perfect Image denied liability but also filed a third-party complaint against Ray L. Diodati, d/b/a R & R Developers, seeking to hold him liable for any recovery which M & M might obtain in the main action. The case was tried before a jury, which returned a verdict in favor of M & M and against Perfect Image for the entire principal amount sought in the complaint, plus interest and attorney fees. On the third-party claim, the jury returned a verdict in favor of Perfect Image and against Diodati, but only to the extent of the principal and interest awarded to M & M. Perfect Image appeals from the judgment entered on the former portion of the jury’s verdict, while Diodati appeals from the judgment entered on the latter portion.

Perfect Image had leased certain premises from Diodati on which to operate a commercial printing business. Diodati was required by the terms of the lease to make certain specified improvements to the premises to prepare them for occupancy by Perfect Image. The president of Perfect Image, Norman Friedman, was particularly concerned about certain specialized electrical work required for the operation of his printing equipment, and he consequently obtained Diodati’s permission to “handle the electrical work and get the bids and supervise [this] work himself. . . .” One of the electrical contractors from which Friedman solicited a bid was M & M, which specialized in performing electrical work for the printing industry and had evidently performed satisfactory work for Perfect Image in the past. M & M’s bid was too high, however; and a company known as H & S Electrical Plumbing, Inc. (hereinafter referred to as H & S) was ultimately hired to do that portion of the electrical work which was the landlord’s responsibility under the plans and specifications referenced by the lease. However, M & M was separately hired by Friedman to do certain additional electrical work which was necessary to get his company’s printing equipment installed and working.

While electricians from both M & M and H & S were on the job site performing their respective tasks, Friedman encountered an electrical problem involving the wiring to a computer. He summoned an H & S employee to examine the wiring and was assured by that employee that the wiring was correct. Doubting that assessment, Friedman went to Diodati and requested his permission to have an M & M employee look into the problem. Diodati agreed, telling Friedman to “have them check it and fix it and send me the bill. . . .” There was evidence that, during a subsequent discussion, Diodati told Friedman that if his electrician “found anything [else] wrong with my electrician’s work to go ahead and correct it and I would pay him.” In connection with these instructions, Diodati additionally told Friedman that he (Diodati) was withholding a $4,000 retainage against H & S which could be used to cover the expense of such corrective work.

In the ensuing weeks, M & M’s electricians replaced or altered much of the wiring which had been installed by H & S. Friedman, who was present at the job site throughout this period, testified that M & M’s supervisor approached him so frequently to discuss this work that he told him: “[B]asically I’m busy. Don’t come walking in my office. If it’s a violation of the plans and specifications, fix it. If it’s a violation of the [electrical] code that you can justify, fix it. Otherwise, don’t; and keep your records separate.” Friedman stated that, notwithstanding this admonishment, the supervisor “never did not (sic) stop coming in — he did not stop bothering me about that. He would continually come in. After a week or so it would be kind of once or twice a day situation where he said these are the things we are going to do today.”

After about three weeks of this, Friedman decided to talk to Diodati about the potential expense of M & M’s corrective work because, in his words, he “had an uneasy feeling that maybe [Diodati] didn’t realize how much work was being done.” According to Friedman, Diodati responded by telling him not to worry because he was also withholding a retainage against H & S on another job H & S was doing for him.

M & M ultimately submitted an itemized invoice to Friedman for the repair and replacement work it had done on H & S’s installations, and Friedman forwarded the bill to Diodati with a cover letter asking him to pay it. Diodati testified that he was surprised by the amount of the invoice and contacted M & M’s president directly to tell him he thought it was too high. The resulting impasse gave rise to the present litigation. Held:

1. Perfect Image contends that because there was no proof that the corrective work performed by M & M was in fact necessary to correct wiring installed by H & S which was not in compliance with the applicable electrical code or with the plans and specifications incorporated into the lease, there was no basis upon which the jury could have found either that the work had been authorized by Perfect Image or that Perfect Image had received anything of value as the result of it. We find this contention to be without merit. Friedman admitted that he had employed M & M and that M & M’s electricians had contacted him “every day, two or three times a day, reporting . . . what they had done and were doing.” The jury could reasonably have concluded from the evidence that Friedman had authorized M & M to perform all of the work in question. Accordingly, the trial court did not err in denying Perfect Image’s motion for directed verdict in the main action.

2. Perfect Image contends that there was no basis for an award of attorney fees for stubborn litigiousness pursuant to OCGA § 13-6-11 because there was a bona fide dispute as to whether M & M had exceeded its general authorization to correct code violations and variances from the plans and specifications. As indicated in Division 1, supra, it is apparent without dispute that Friedman was kept fully apprised of the nature of the work M & M’s electricians were performing. It is further apparent from his testimony that he was aware M & M’s bill would be substantial. Indeed, Friedman testified that he had no quarrel with the amount of M & M’s bill when he received it and would have paid it but for his belief that, as between the two of them, Diodati was responsible for the work. Under the circumstances, the jury could reasonably have concluded that there was no bona fide controversy regarding whether Personal Image was indebted to M & M for payment of the account. “There being some evidence authorizing the award of attorney fees, this court cannot say as a matter of law that there was a reasonable defense to the main claim. (Cits.)” Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (301 SE2d 493) (1983).

3. Diodati contends that the trial court erred in denying his motion for directed verdict on the third-party claim because there was no evidence that a principal-agent relationship existed between himself and Friedman pursuant to which Friedman would have been authorized to bind him to a contractual obligation to M & M. We disagree. Diodati acknowledged that it was Friedman’s responsibility to supervise the electrical work, stating: “He was acting at my request. He requested that he be able to handle the electrical work and get the bids and supervise the work himself, and I consented to it.” Diodati further testified that he had gone onto the premises several times during the period the corrective work was being performed, that he had observed M & M’s electricians working there, and that he had reminded them to keep separate bills for the work they were doing for him. It could reasonably be inferred from this testimony, as well as from other testimony in the case, that Diodati was aware of the substantial nature of the corrective work which was being performed.

In reviewing the denial of a motion for directed verdict, the evidence is always to be construed in favor of the party opposing the motion. Francis v. Cook, 248 Ga. 225 (1) (281 SE2d 548) (1981). Similarly, where a verdict has been returned by the jury and approved by the trial judge, the evidence is to be construed in the light most favorable to the prevailing party, and every presumption and inference is in favor of sustaining the verdict. Suber v. Fountain, 151 Ga. App. 283, 285 (259 SE2d 685) (1979). Construed in such fashion, the evidence in the present case authorized a finding that Diodati had authorized Friedman to direct M & M’s employees to perform the work in question.

Decided May 19, 1989.

Johnson & Montgomery, Nisbet S. Kindrick III, for Perfect Image.

Charles H. Edwards, for M & M Electrical.

Rogers, Magruder, Hoyt, Sumner & Brinson, James P. Orr, for Diodati.

4. Diodati further contends that he was entitled to a directed verdict based on a provision in the lease specifying that the tenant was not authorized to make alterations, repairs, or improvements without the prior written consent of the landlord. We also find this contention to be without merit. The jury was authorized to conclude that the corrective work performed by M & M was being performed for the purpose of preparing the premises for occupancy, that Diodati was aware of the ongoing and substantial nature of the work, and that neither party considered this work to be covered by the lease provision in question.

5. The discretion to set aside a verdict on the ground that it is decidedly and strongly against the weight of the evidence or is contrary to the principles of justice and equity rests solely with the trial judge, and the appellate courts are not vested with such discretion. Gledhill v. Brown, 44 Ga. App. 670, 671 (1) (162 SE 824) (1931); Southern R. Co. v. Garner, 101 Ga. App. 371, 373 (114 SE2d 211) (1960). See generally OCGA §§ 5-5-20; 5-5-21. Consequently, Diodati’s final enumeration of error presents nothing for review.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1056.
    RIDGEVIEW INSTITUTE, INC. v. BRUNSON.
    (382 SE2d 409)
   Banke, Presiding Judge.

The appellee, William. O. Brunson, sued to obtain a judicial declaration that he is entitled to access to certain medical records in the possession of the appellant, Ridgeview Institute, Inc. The complaint alleged that a former psychiatric patient at Ridgeview, Harold P. Cronic, shot and wounded the appellee, shot and killed the appellee’s wife, and then shot and killed himself shortly after receiving treatment there; that the appellee “firmly believes” under the circumstances that he has a cause of action against Ridgeview under the theory of liability set forth in Bradley Center v. Wessner, 161 Ga. App. 576 (287 SE2d 716) (1982), aff'd 250 Ga. 199 (296 SE2d 693) (1982); that Ridgeview’s records might, in addition, “develop . . . facts which would indicate that other persons and entities comprised of hospitals and treating physicians, may be appropriate defendants” in such an action; that he “would not be able to make a determination as to who the proper parties in an action would be, and further, would not be certain as to whether or not [Ridgeview] is a proper party defendant until [Ridgeview] makes available those medical records pertaining to the treatment of Harold P. Cronic”; that a cause of action brought by him against Ridgeview “may or may not be subject to OCGA § 9-11-9.1 requiring [him] to attach an affidavit with the complaint”; that he would not be able to obtain such an affidavit “until [Ridgeview] releases the medical records upon which such an affidavit may be based”; that although the administrator of Cronic’s estate had consented to the release of the records, Ridgeview had taken the position that the records were confidential and refused to release them without a court order directing their release; and that these facts placed him “in a dilemma in that he wishes to bring a cause of action in a proper fashion against [Ridgeview] but cannot determine whether or not a cause of action is appropriate until the medical records are made available.”

In its answer, Ridgeview asserted that the records in question were absolutely privileged under state law and that it was not authorized to release them even with the consent of Cronic’s administrator. The trial court granted summary judgment to the appellee on this issue, concluding, in a thoughtful and well-reasoned opinion, that under the particular facts of this case the release of the records would not be precluded by the psychiatrist-patient privilege, see OCGA § 24-9-21, or by the psychologist-patient privilege. See OCGA § 43-39-16. Ridgeview appeals. Held:

Although the issue was not raised by either party in the court below, it is evident that the allegations contained in the complaint do not state a justiciable claim for declaratory relief. Simply stated, the appellee’s problem is that although he “firmly believes” he has a cause of action against Ridgeview and possibly others as a result of their failure to foresee and prevent Cronic’s conduct, he cannot be certain about this until Ridgeview’s medical records have been made available to him. However, the appellee’s problem in this regard will not be resolved merely by an adjudication that Ridgeview is authorized to release the records to him, for Ridgeview would still be under no legal duty to do so. What the appellee needs is a procedure by which Ridgeview can be required to release the records to him; and his remedy in this regard is simply to file an action against Ridgeview and/or any other parties he believes are liable to him and to seek discovery of the records in that action. Generally speaking, Georgia law provides no discovery procedures for pre-complaint fact finding. Cf. Worley v. Worley, 161 Ga. App. 44, 45 (288 SE2d 854) (1982) (holding that the purpose of Rule 27 (a) of the Civil Practice Act, authorizing the taking of depositions prior to the filing of a complaint, “is to provide for perpetuation of testimony in situations where, for one reason or another, testimony might be lost to a prospective litigant unless steps are taken immediately to preserve and protect such testimony” and that this provision “cannot be used for the purpose of ascertaining facts to be used in drafting a complaint.”)

Decided May 19, 1989.

Troutman, Sanders, Lockerman & Ashmore, H. Carol Saul, Rutledge Q. Hutson, Paul L. Fields, Jr., for appellant.

Henning, Aitkens, Snellings, Kearns & Cleveland, Stanley T. Snellings, J. Russell Mayer, for appellee.

“This court and the Supreme Court have repeatedly held that although the Declaratory Judgments Act as amended [OCGA § 9-4-2 (c)] provides that relief by declaratory judgment is available notwithstanding other adequate legal or equitable remedies, the necessity therefor must appear, and that a petition will not lie where all rights of the parties have already accrued and where no facts or circumstances are alleged showing a necessity for adjudication in order to relieve the plaintiff from the risk of taking future undirected action, which, without such action, would jeopardize the plaintiffs interest. [Cit.]” United States Fid. &c. Co. v. Bishop, 121 Ga. App. 75, 77 (172 SE2d 855) (1970). See also Rowan v. Herring, 214 Ga. 370, 374 (105 SE2d 29) (1958). It being apparent that the judicial declaration sought by the appellee will not relieve him of any risk or uncertainty with regard to the legal consequences of future conduct on his part, so as to enable him to avoid repudiating obligations or losing rights, we hold that the trial court erred in entertaining the action. Accord Peeples Indus. v. Parker Hannifin Corp., 189 Ga. App. 857, 859 (377 SE2d 691) (1989). The judgment below is accordingly vacated with direction that the complaint be dismissed for want of subject matter jurisdiction.

Judgment vacated with direction.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A0512.
    PACELLA v. SANCHEZ.
    (382 SE2d 371)
   Deen, Presiding Judge.

Edward Anthony Pacella brought a petition to adopt the two minor children, a boy and a girl, of his wife Lucinda. Joseph Sanchez answered the petition, claiming that he was the natural father of the children, that after Lucinda moved to Georgia she refused to allow visitation, and that the parties had a support agreement; and he prayed that the petition be dismissed.

The evidence showed that Lucinda Pacella’s eldest child, a daughter, was fathered by Pacella while the couple was unmarried. When she was eight months pregnant she married Sanchez, who is listed as the child’s father on the birth certificate. Approximately eighteen months later, Lucinda divorced Sanchez, but the child is not mentioned in the divorce decree. A son was conceived during a reconciliation attempt with Sanchez, but Lucinda married Pacella and did not inform Sanchez of her pregnancy until the child was six weeks old. Sanchez immediately went to the Pacella home, visited his son and gáve him some clothing. Shortly thereafter, the Pacellas, who were both members of the United States Air Force, relocated from New York to Georgia. Sanchez petitioned the Family Court of New York to legitimate his son, and Lucinda consented to the proceeding. The family went to New York to attend the court proceedings and stayed in Sanchez’ home. An Order of Filiation was granted on September 19, 1986, but the court did not award child support or custody, or grant visitation rights. When Lucinda and Sanchez were questioned about child support in the court below, they agreed that they were instructed by the trial judge in New York to reach an agreement on this issue, but that they never presented it to the court.

Sanchez claims that the parties agreed that Lucinda would provide primary care for their son until he (Sanchez) finished school and then the child would alternate between his parents’ homes for six-month periods. When the child started school he was to spend his summers with his father. No amount was specified for child support, but “she would call me if she needed anything while I was in school.” Lucinda did not refute his recollection of their agreement, as she testified: “I told him whatever amount you can,” but added that she had a mental expectation that payments would be “regular.” It was not until after Sanchez graduated in December of 1987 that Lucinda made a demand for child support. Sanchez testified that he would give her what she requested. The parties also discussed the transfer of the child’s care for six months. Lucinda apparently changed her mind as to the transfer of custody because shortly thereafter the Pacellas obtained an unlisted telephone number. She testified that her purpose was to stop Sanchez’ telephone contacts because he would argue his visitation rights.

The evidence further showed that Sanchez was a full-time student and worked full-time to support himself from the time of the legitimation hearing until December of 1987, when he graduated from school as an aviation mechanic. He claimed that this demanding schedule prevented him from visiting his son in Georgia, but that he did keep in regular contact by telephone and send birthday and Valentine cards to the children until the Pacellas purchased a house and obtained an unlisted telephone number. The adoption petition was filed in January of 1988. Sanchez testified he did not object to Pacella’s adopting his own daughter, but he did object to the adoption of the son he had legitimated.

The trial court found that the female child was the natural daughter of Pacella and Lucinda and that the male child was the natural child of Sanchez and Lucinda, and that although Sanchez had legitimated the male child in New York, the court had not entered a support order on behalf of the child. The court further found that for a period of twelve months prior to filing the adoption petition Sanchez sent $20 in child support to his son and clothing valued at $8.99, that Sanchez had a gross income of $13,163, that Sanchez had not seen the child for more than one year, but did, on various occasions, make telephone calls to check on the children’s welfare.

The trial court’s order granted the adoption petition as to the female child, finding her to be Pacella’s natural child, but denied it as to the male child, finding him to be Sanchez’ natural child. The court held that while Sanchez may have failed significantly for a period of twelve months or longer immediately prior to the filing of the adoption petition to provide for the care and support of his son, there had been no support decree issued ordering him to support the child and he was therefore not subject to the provisions of OCGA § 19-8-6, which provides for the termination of parental rights when a parent fails to support a child for one year or longer prior to the filing of a petition for adoption. The court, in denying Pacella’s motion to adopt Sanchez’ son, further found that Sanchez did make a bona fide attempt to communicate with the child during the period of time in question.

Pacella appeals, contending that the trial court erred in ruling that although Sanchez may have failed significantly for a period of twelve months or longer to provide for the care and support of his son, he would not, absent a judicial decree ordering him to pay child support, be required to support the child and was not subject to the provisions of OCGA § 19-8-6. Held:

Under OCGA § 19-7-2, “[i]t is the joint and several duty of each parent to provide for the maintenance, protection, and education of his child until the child reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order.” Sanchez was therefore under a legal obligation to support his child although no court decree ordering such support was in effect.

Decided May 4, 1989

Rehearing denied May 22, 1989

Bennett, Wisenbaker & Bennett, Michael S. Bennett, for appellant.

OCGA § 19-8-6 (b) (2) is, contrary to Sanchez’ position, applicable in a case where no court order has been entered. It provides that parental rights may be terminated where a parent has failed significantly to “(2) provide for the care and support of the child as required by law or judicial decree, where the court is of the opinion that adoption is for the best interests of the child.” (Emphasis supplied.) In Kirkland v. Lee, 160 Ga. App. 446 (287 SE2d 365) (1981), this court held that the intent of the legislature in enacting the present version of this code section in 1979 was to resolve the issue of the parent’s justification for the non-payment of support or failure to communicate with the child in the context of whether the severance of the parental relationship would be in the best interests of the child.

Under Kirkland, supra at 450, “an order granting an adoption need only contain specific and articulated findings that the parent ‘has failed significantly’ for a one year period to communicate with or provide support for his child and that the adoption [was] in the child’s ‘best interests.’ ” Kirkland therefore establishes the findings necessary to grant an adoption. The instant case, however, is an appeal from the denial of an adoption, and the trial court used an erroneous legal theory in concluding that appellee had not failed to provide for the care and support of his child. Upon remand, the trial court, with the proper legal theory in mind (that appellee, as a parent, had a legal duty to support the child under OCGA § 19-7-2), must review this case and decide whether the support provided the child by appellee, labeled “not sufficient” by the trial court in its order, is tantamount to appellee’s having “failed significantly” to provide for the care and support of the child. Should the trial court conclude that appellee did fail significantly to provide for the child’s care and support, then the trial court must determine whether, despite appellee’s financial shortcomings, adoption is in the best interests of the child.

Judgment reversed and case remanded with direction.

Birdsong and Benham, JJ., concur.

Mary Jane Yorke, for appellee.


text:
    A89A0529.
    WEAVER v. ABC BUS, INC.
    (382 SE2d 380)
   Sognier, Judge.

Gregory M. Weaver brought suit against ABC Bus, Inc., alleging that he was damaged when he was fraudulently induced to enter into an agreement for the lease of a used bus. The trial court granted summary judgment in favor of ABC, and Weaver appeals.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee because issues of fact remain regarding whether appellant properly rescinded the transaction and if so, whether appellant acted promptly after discovery of the fraud. We do not agree. The record reveals that appellant executed a contract for the lease of a bus from appellee for six months, with an option to purchase. The inceptive fraud alleged by appellant consisted of assurances given appellant by Dan Birnstihl, appellee’s agent, that appellee was going to repair all defects on the bus and that the bus would be in good shape when delivered. Appellant discovered upon delivery of the bus that mechanical problems existed, but nevertheless made an installment payment on the contract, negotiated with appellee to delay making another installment payment until the end of the term rather than at the beginning as called for by the contract, and sought to have appellee repair the bus, rather than seeking to rescind the transaction. Appellant testified at deposition that he believed Birnstihl was sincere when he made the representations, and that Birnstihl’s subsequent efforts to repair the bus showed good faith. Appellant also testified that he never wanted to return the bus or get his money back. Appellant testified, rather, that he wanted to abide by the contract, and that he had read and understood the terms of the contract, which provided that he was leasing the bus in an “as is” condition, and that appellee had no duty under the contract to repair the bus.

It is thus clear that appellant did not seek to rescind but rather affirmed the contract. “After the discovery of the fraud, [appellant] should not have treated the contract as a valid one and procured favors from the other party with respect thereto, without [his] conduct being construed as an acquiescence in the contract as made with the fraud in it. By [his] conduct in thus dealing with the opposite party [he] recognized the contract as one that was valid and enforceable against [him] in its entirety. By making [a payment] and [seeking to delay his payments] longer than was stipulated in the original contract, [and by seeking to have appellee repair the bus, appellant] made an admission that the contract was valid which is inconsistent with [his] statements that it was tainted with fraud.” Tuttle v. Stovall, 134 Ga. 325, 332 (67 SE 806) (1910). See also Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 878-879 (2) (298 SE2d 600) (1982).

Decided May 10, 1989

Rehearing denied May 22, 1989

Walter W. Furlong, for appellant.

Having affirmed the contract, appellant is bound by its provisions, and the contract itself clearly provides that “[appellee] makes no warranty, representation, or guaranty, express or implied, written or oral, of mechanical condition or fitness of purpose whatsoever,” and further provides that the written contract and attachments “[constitute] the entire agreement between the parties, and cannot be amended or altered in any manner except in writing signed by both parties.” “ ‘(W)here the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail. (Cits.)’ [Cits.]” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583-584 (305 SE2d 31) (1983). Accordingly, appellant is estopped from pursuing his claim for fraud, and the trial court did not err by granting appellee’s motion for summary judgment. Id.

2. Appellant also alleges that the motion for summary judgment was improper because issues remain pending below regarding appellee’s alleged breach of contract. However, we find no allegations of breach of contract raised in appellant’s complaint, which is founded entirely on fraud. Nor may any claim for breach of contract reasonably be inferred from appellant’s pleadings or the evidence, inasmuch as the contract specifically disclaims representations such as the ones appellant now asserts were breached. “[Assertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summitry judgment issue. [Cits.]” Esco v. Jackson, 185 Ga. App. 901, 902 (366 SE2d 309) (1988).

Moreover, appellant did not raise this issue below in response to appellee’s motion for summary judgment, and it is axiomatic that “[a] ground urged for the first time on appeal will not be considered. [Cit.]” Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345, 346 (370 SE2d 201) (1988). Accordingly, this enumeration is without merit.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Murray Z. Kahn, for appellee.


text:
    A89A0803. A89A0804.
    POWELL et al. v. THE STATE. JOHNSON COUNTY GRAND JURY v. POWELL et al.
    (382 SE2d 634)
   Deen, Presiding Judge.

Case No. A89A0803

In this interlocutory appeal, the appellants contend that the trial court should have quashed the indictments against them because certain provisions of OCGA § 45-11-4 were not complied with when the matter was presented to the grand jury. Specifically, the appellants note that (1) none of the appellants was placed under oath prior to making statements to the grand jury; (2) the grand jury improperly questioned one appellant following his statement; (3) during the questioning of that appellant, a GBI agent interjected remarks; and (4) following the statement of another appellant, the district attorney made remarks to the grand jury which amount to the presentation of additional evidence.

In Felker v. State, 252 Ga. 351, 366 (314 SE2d 621) (1984), the Supreme Court endorsed this court’s holding in Summers v. State, 63 Ga. App. 445, at 449 (11 SE2d 409) (1940), that “ ‘where ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged.’ ” The appellants did not contend, much less show, that the indictments were returned on wholly illegal evidence, and the trial court thus properly denied their joint plea in abatement. Felker v. State, supra.

Case No. A89A0804

On March 22, 1988, a grand jury was empanelled and sworn for Johnson County. On April 4, 1988, the grand jury made certain general presentments, including one concerning the county commissioners’ office: “Commissioners’ Office — no problems found.” Following the return of the indictments against the appellees (the appellants in Case No. A89A0803), the grand jury made supplemental general presentments, to wit:

“The Grand Jury, after having heard evidence concerning the maintenance and record keeping of County property makes the following recommendations:

“1. The Grand Jury recommends that the Johnson County Commissioners, as well as all other County offices, implement an inventory policy that will allow interested citizens the opportunity to inspect the records of all public property owned by Johnson County.

“2. The Grand Jury recommends that the Johnson County Commissioners review the legal requirements in taking and receiving bids to make repairs on public property and doing public works and follow said requirements.

“3. The Grand Jury recommends that the Johnson County Commissioners maintain minutes of their meetings and maintain adequate financial records that the affairs of the County can be properly monitored.

“4. The Grand Jury recommends that the next succeeding Grand Jury be made aware of these presentments so that they may inquire into the progress made in implementing these recommendations.”

Upon the appellees’ motion, however, the trial court expunged these supplemental presentments. This appeal followed.

“While it is the duty of the grand jury to investigate and present public officials for malpractice in the performance of their official duties [cits.], a grand jury has no right in the absence of specific statutory authority to file a report charging or casting reflections of misconduct in office upon a public officer or impugning his character, except by presentment or true bill of indictment charging such individual with a specific offense against the State; and it is the fundamental right of one who is the subject of such extrajudicial report to have it expunged from the official records. [Cits.] This is not to infer, however, that the grand jury in exercising the investigative powers of a civil nature, specifically delegated to it by statute . . . , may not make fair reports of its findings, even though such reports of necessity incidentally reflect negligence or incompetence, upon the officials involved.” Kelley v. Tanksley, 105 Ga. App. 65, 66 (123 SE2d 462) (1961). See also Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777 (273 SE2d 19) (1980).

In the instant case, we disagree with the assessment that the grand jury’s supplemental general presentments reflected upon a public official’s misconduct in office or impugned the character of an official. The presentments made general, administrative recommendations that would lessen the opportunity for the type of misconduct it apparently had recently heard and considered in returning the indictments against the appellants. This aspect of the supplemental presentments provided no basis to expunge the presentments.

OCGA § 36-9-10 provides that “[i]t shall be the duty of the grand juries to inspect all the public buildings and other property of the county and the county records and to report in their general presentments their condition.” The trial court also concluded that the grand jury made its recommendations without first making a physical inspection of the county records in the commissioners’ office. At the hearing, it was adduced that in its first session the grand jury did physically inspect the commissioners’ office, albeit in a somewhat cursory fashion, although the supplemental presentments were primarily based upon the testimony before the grand jury that led to the indictments. Under these circumstances, the grand jury’s supplemental general presentments did not exceed its statutory authority, cf. In re Hensley, 184 Ga. App. 625 (1) (362 SE2d 432) (1987), and we find the shallowness of its investigation in this case to be insufficient basis to expunge these presentments.

Decided May 8, 1989

Rehearings denied May 22, 1989

Joe W. Rowland, for appellants (case no. A89A0803).

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Tyson Blue, Assistant District Attorney, for appellant (case no. A89A0804).

Joe W. Rowland, for appellees.

Judgment affirmed in Case No. A89A0803; judgment reversed in Case No. A89A0804.

Birdsong and Benham, JJ., concur.


text:
    A89A0902.
    MAYS v. DANIELS et al.
    (382 SE2d 636)
   Deen, Presiding Judge.

The instant case, making its second appearance in this court, stems from a boundary line dispute in which the Danielses, appellees here, filed a declaratory judgment action. The trial court excluded defendant’s sole evidence and rendered judgment in plaintiffs’ favor, and this court reversed the judgment below. See Mays v. Daniels, 179 Ga. App. 677 (347 SE2d 642) (1986). A new trial ensued, with judgment being rendered in the Danielses’ favor. Mays now appeals pro se, enumerating as error the following comment of the trial court: “Well, I will sustain your motion. Basically[,] you have made a motion that you object to the filing of the counterclaim as alleged as of August of 1988.” Mays contends that it was improper for the court to insert the word “alleged,” inasmuch as the record shows the filing of a cross-claim August 15,1988; and that this alleged error denied appellant his constitutional right of equal protection of the law. Held:

Appellant admitted, both at trial and in various documents filed with the trial court, that a certain line (“Line A”) on plats of the property in contention was, as contended by the Danielses, the correct property line. He contends, however, that because this line conformed to the corresponding line as shown on a particular plat (“the Churchwell plat”), then that same plat should necessarily be the controlling authority for resolution of any discrepancies regarding the location of all other property lines, one or more of which, Mays contended at trial, was improperly designated. To adopt one line on what he considered the proper plat and not to adopt all other lines shown on that plat, Mays asserts on appeal, would be to utilize a “double standard,” which, he alleges, is tantamount to a denial of equal protection.

The trial court refused to admit into evidence Mays’ copies of the “Churchwell plat” because those copies had been inadequately authenticated and, a fortiori, because they included “editorial comments” added ex parte by Mays after he had obtained the copies of the various plats as executed by surveyors. Agreeing with appellees that only one property line (“Line A”) was actually in litigation, the court held that, since Mays agreed that Line A was properly indicated, the Danielses’ motion for a directed verdict should be granted. OCGA § 9-11-50 (a) mandates: “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.”

We fail to see, in the light of the proceedings as a whole, that the challenged wording was in any sense erroneous (or if, arguendo, it were so deemed, that it was in any way harmful). The transcript indicates that the trial court pointed out to both parties that the cross-complaint, in which Mays contended for the first time that “Line B” should be moved to correspond to the “Churchwell plat,” had not been timely filed. See OCGA § 9-11-13. Moreover, the transcript reveals that, immediately after uttering the sentence which appellant enumerates as error, the court continued: “I will sustain that motion and I will leave the counterclaim in the record for purposes of appeal, but it has not been filed with the permission of the court, and the court will specifically disapprove the filing of it. . .As fast as we get an issue joined on one thing[,] Mr. Mays changes it to something else.” The transcript further reveals that the above exchange took place outside the presence of the jury.

We find no merit in appellant’s enumeration.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided May 8, 1989

Rehearing denied May 22, 1989

Robert Mays, pro se.

William E. Cannon, Jr., for appellees.


text:
    A89A0982.
    BUTLER v. THE STATE.
    (382 SE2d 616)
   Deen, Presiding Judge.

Frederick C. Butler was granted an out-of-time appeal in his two convictions of rape and aggravated oral sodomy, which were tried separately.

1. Appellant alleges that during the trial for the rape and sodomy of the first victim, the court erred in permitting an in-court identification by the victim to be admitted into evidence. The basis for this enumeration is testimony presented at trial that showed that a single photograph of appellant was shown to the victim prior to his arrest. No objection to this testimony was raised below. She testified that he threw a small rug over her head when he entered her bedroom, but that she recognized his voice while he was in her apartment and that she also saw his face as he was going out the door when she took the rug off her head because the area was lit by a street light. She did not know his first name, but knew his last name and where he lived. He apparently had been to her apartment with friends several times in the past and worked at Savannah State College, the same place she worked. She advised the investigating officer that she knew Butler and where he worked. Upon investigation, the officer was able to obtain Butler’s first name and a description of him which matched the description both victims gave of their assailant.

In-court identification is not unconstitutionally inadmissible “ ‘[e]ven if the pre-trial identification is “tainted” ... if it does not depend upon the prior identification but has an “independent ori- . gin.” ’ ” Code v. State, 234 Ga. 90, 99 (214 SE2d 873) (1975); Ely v. State, 172 Ga. App. 737, 738 (324 SE2d 569) (1984). In the instant case there was lengthy testimony as to the independent origin of the victim’s identification of Butler; he had visited her apartment in the past, she knew him from his place of employment, she recognized his voice, and got a glimpse of his face when it was lighted by the street light.

2. Appellant also contends that the in-court identification by a second victim was improperly, admitted for the same reason set forth in Division 1 above.

The second victim made an in-court identification of the defendant which she testified was “based on the view that I had of him at a face-to-face conversation after he had assaulted me.” She saw him in her bedroom and noticed certain facial details such as wrinkles on his forehead, a mustache, and a light beard. She also viewed him from a distance of 1-2 inches in a hallway which was lit by a street light shining through a window. Later, she observed him in the street under a street light. The victim therefore “had ample time and opportunity to observe the defendant at the time the crime was committed thereby establishing a basis for [her] in-court identification.” Byrd v. State, 173 Ga. App. 449, 450 (326 SE2d 813) (1985). The evidence clearly had an independent origin as required under Code v. State, supra, and Ely v. State, supra.

3. Appellant asserts as error the admission of evidence of each rape and sodomy in the trial of the other.

Evidence of similar crimes is admissible, especially in cases involving, sexual offenses, to show motive, bent of mind, plan, scheme, or course of conduct. “To be admissible there must be evidence that the defendant was the perpetrator of the independent crime and there must be sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982).” O’Neal v. State, 170 Ga. App. 637 (318 SE2d 66) (1984).

The evidence in the two cases is strikingly similar. The perpetrator raped and performed oral sex on the first victim and then forced her to commit oral sodomy upon him. He raped and performed oral sex on the second victim and he attempted to force her to perform oral sex upon him, but she managed to get away from him. The testimony of the victims was admissible in both cases.

4. Appellant’s trial counsel filed a motion for a new trial asserting only the general grounds. Butler was granted an out-of-time appeal upon review of his petition for habeas corpus because he had never been informed of his right to appeal his convictions. That court, however, declined to rule upon his contention that trial counsel was ineffective. He is represented by new counsel who filed a notice of appeal. As his contention of ineffective assistance was not raised by a motion for a new trial in the court below, and the habeas court did not consider it, it must be considered as being raised for the first time on appeal. We therefore remand this case to the trial court for a hearing and entry of appropriate findings of fact on the issue of effective assistance of counsel. If Butler prevails on this issue, he will be entitled to a new trial. If he does not, he has the right to appeal that order within thirty days after it is entered. Brooks v. State, 187 Ga. App. 92, 94 (369 SE2d 349) (1988). See also Hightower v. State, 189 Ga. App. 553 (376 SE2d 717) (1988).

Judgment affirmed and case remanded with direction.

Birdsong and, Benham, JJ., concur.

Decided May 3, 1989

Rehearing denied May 22, 1989

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.


text:
    A89A1189.
    MAPP v. THE STATE.
    (382 SE2d 618)
   Deen, Presiding Judge.

James Edward Mapp was convicted of two counts of simple assault upon his wife, Laura.

1. On appeal his attorney has filed a motion to withdraw as counsel, a brief, and an enumeration of errors pursuant to the requirements of Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967), and Bethay v. State, 237 Ga. 625, 626 (229 SE2d 406) (1976).

Counsel’s motion is denied. Pursuant to the holding in Fields v. State, 189 Ga. App. 532 (376 SE2d 912) (1988), this court no longer entertains Anders motions. We will therefore address the enumerations of error raised by counsel.

2. The court below did not err in failing to advise Laura Mapp of the marital privilege. OCGA § 24-9-23 provides that one spouse is competent to testify against the other, but the State cannot compel this testimony. The privilege of refusing to testify belongs to the witness and not to the accused. James v. State, 223 Ga. 677, 683 (157 SE2d 471) (1967). When the witness voluntarily takes the stand and testifies, it is presumed that this act is done pursuant to a waiver of the privilege. Wiley v. State, 150 Ga. App. 607, 608 (258 SE2d 286) (1979).

3. Appellant further asserts as error the trial court’s charge of the whole of OCGA § 16-5-21 (2), which defines the manner in which aggravated assault can be committed. He claims that the court should have given the jury limiting instructions because he was indicted on two counts of aggravated assault with a deadly weapon.

It is usually not reversible error for the trial court to charge an entire Code section even though a part of the charge may be inapplicable under the facts in evidence. Smith v. State, 178 Ga. App. 19, 20 (341 SE2d 901) (1986). Appellant has not shown that he sustained any harm because this charge was given. See Durham v. State, 179 Ga. App. 636 (347 SE2d 293) (1986). Indeed, he was convicted of the lesser included offense of simple assault on both counts.

Decided May 4, 1989

Rehearing denied May 22, 1989

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

4. In view of the fact that this appeal was filed with an Anders motion attached, we have made an independent review of the transcript and proceedings below and find no error. A rational trier of fact was authorized by the evidence adduced at trial to find Mapp guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Appellant has filed a pro se brief and enumeration of errors. Under our holding in Seagraves v. State, 191 Ga. App. 207 (381 SE2d 583) (1989), and the Supreme Court’s holding in Seagraves v. State, 259 Ga. 36 (376 SE2d 670) (1989), Mapp does not have a right to make a pro se appearance in this court while represented by counsel.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0432.
    ALLEN v. THE STATE.
    (382 SE2d 690)
   Pope, Judge.

Defendant Paul Anthony Allen was convicted of the offenses of possession of marijuana with intent to distribute, possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. The evidence presented at the hearing on defendant’s motion to suppress and at trial shows that defendant was a passenger in an automobile traveling north on Interstate 95 in Glynn County, Georgia. An officer of the Georgia State Patrol stopped the automobile for speeding. The trooper became suspicious when defendant and the driver gave different responses to inquiries concerning their destination and because, initially, neither occupant seemed to know who owned the automobile. However, the driver had already given the trooper automobile registration papers showing the car was registered to Kenneth Allen and Vivian Porter of Ft. Lauderdale, Florida. Ultimately, defendant told the arresting officer the automobile belonged to his brother. The driver, defendant’s co-defendant, stated he was driving the automobile with the permission of the owners and signed a consent to search the vehicle. Defendant Allen gave verbal consent to search. The search revealed 9.2 grams of crack cocaine and a small amount of marijuana in the ashtray, a .45 caliber semi-automatic pistol in the glove compartment and drug paraphernalia in a brown bag on the floor behind the passenger’s seat. A trash bag containing just over four pounds of marijuana was found in the trunk of the car.

1. Defendant first argues the trial court erred in denying his motion to suppress the evidence found in the search of the vehicle. Contrary to defendant’s argument, the trooper did not make a pretextual stop. The undisputed evidence shows the driver was violating the speed limit. “Having already effected a valid stop of the vehicle, the trooper certainly did not violate the [defendant’s] Fourth Amendment rights merely by requesting . . . consent [to search the vehicle]. Accord Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1972).” Pupo v. State, 187 Ga. App. 765, 766 (371 SE2d 219) (1988). “Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. A consent to search must be the product of an essentially free and unrestrained choice by its maker. There is no indication there were any coercive acts by the officer or involuntary acts by the defendant. The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. The trial judge did not err in denying the motion to suppress.” (Citations and punctuation omitted.) Wilson v. State, 179 Ga. App. 780, 781-782 (347 SE2d 709) (1986).

2. Defendant’s remaining enumerations of error concern his argument that insufficient evidence was presented to convict him. It was not necessary, as defendant argues, for the State to show actual possession of the contraband because he was not charged with trafficking in cocaine. See OCGA § 16-13-31 (a) (prior to March 28, 1988 amendment). Possession of contraband may be actual or constructive. Hadden v. State, 181 Ga. App. 628 (1) (353 SE2d 532) (1987). Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. See Anderson v. State, 166 Ga. App. 459 (3) (304 SE2d 550) (1983). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.” (Citation and punctuation omitted.) Id. at 460.

Sufficient circumstantial evidence was presented at trial to establish defendant had at least constructive possession of the contraband in the vehicle. Neither defendant nor the driver of the car owned the vehicle but they claimed it was borrowed from defendant’s brother. Both defendant and the driver had access to the contraband and thus the power to exercise control over it. Defendant’s intent to exercise control over the contraband can be inferred by the suspicious and inconsistent explanations defendant gave to the trooper before he conducted the search. “The quantity of the contraband found, as well as the presence of . . . drug paraphernalia, gave rise to a reasonable inference that [defendant] had the intent to distribute the marijuana and cocaine.” (Citations and punctuation omitted.) Holbrook v. State, 177 Ga. App. 318, 321 (339 SE2d 346) (1985). Consequently, we find sufficient evidence was presented to convict defendant and the trial court did not err in denying both defendant’s motion for directed verdict and defendant’s motion for new trial.

Decided May 22, 1989.

John P. Rivers, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Benham, Judge.

text:
    A89A0539.
    THE STATE v. COMBS et al.
    (382 SE2d 691)
   Benham, Judge.

Appellees Combs and Hurley were arrested for trafficking in cocaine and possession of a firearm in the commission of a felony. They moved to suppress the evidence obtained, cocaine and firearms and other weapons, contending that the items were the fruits of an illegal, warrantless, pre-arrest search. The parties agreed that the only issue before the trial court was whether the officer in question had probable cause to search appellees’ vehicle. The trial court heard the evidence and ruled in favor of appellees. The State appeals, and we affirm.

1. Appellant contends that appellee Hurley did not have standing to contest the search of the vehicle in which the contraband and weapons were found. We find no merit in this enumeration. It is undisputed that Hurley was driving the vehicle when the trooper pulled it over, and he testified that he had driven it for most of the trip and had clothing and personal items in the vehicle. Even though Combs may have been the one who borrowed the vehicle from a third party, Hurley’s status as driver of the vehicle would have given him sufficient authority over it to consent to a search. See Pupo v. State, 187 Ga. App. 765 (5) (371 SE2d 219) (1988). Given that authority and the fact that Hurley had personalty in the automobile, we find that he did have a possessory or privacy interest in the vehicle and therefore had standing to complain that the search violated his Fourth Amendment rights. The State’s reliance on Mecale v. State, 186 Ga. App. 276 (367 SE2d 52) (1988), is misplaced, because the person who was found in that case to have no standing was “a mere passenger.”

2. The State takes the position that Bennett, the trooper who stopped and searched appellees’ vehicle, had probable cause to conduct the warrantless search based on the information he obtained from appellees. At the suppression hearing, Bennett testified that he originally observed the vehicle traveling north on 1-95 and that it weaved across the white line on the far right-hand side of the highway. He observed it weaving two more times, and had the driver pull the automobile over to the side of the highway approximately two miles from the point at which he first saw it. The vehicle’s movements made him think that there might be “an equipment violation or a violation concerning the driver’s condition.” The trooper stopped the vehicle because it was weaving; he had no intention to search the vehicle. When he asked the driver, Hurley, for his driver’s license, he produced it. The driver’s license appeared to be in order, and Hurley did not appear to be under the influence of drugs or alcohol. When the trooper explained the reason for having stopped the vehicle, he said that Hurley told him the right front tire had been replaced during the trip and was causing the car to pull to the right. The trooper checked the tire and noted that it appeared to be newer than the other three. He questioned Hurley about his itinerary, and Hurley said they had been in Ocala for four days visiting his family. When the trooper asked for the vehicle registration, Hurley said that it was in the car and that Combs, the passenger, had borrowed the vehicle. The trooper then checked with Combs, who was seated in the front passenger seat. Combs got the registration out of the glove compartment and gave it to the trooper, who noticed that there was a gun in the glove compartment. When the trooper inquired about the gun, Combs denied ownership of it, saying that Hurley had gotten it from someone in Florida or Kentucky. According to Bennett, Combs also denied having obtained the vehicle and, when asked, did not give the correct name of the person to whom the vehicle was registered, nor did he give the same information ¿bout their travels that Hurley had given. The trooper told Hurley that something was wrong and that he was going to search their car. It is undisputed that appellees did not give permission for the search, which yielded cocaine found in a travel bag in a suitcase in the trunk of the car. Guns and knives were also found in the car, and a knife was found on Combs’ person. Appellees were then arrested.

Trooper Bennett testified that he based his decision to search on the inconsistent information appellees gave concerning their travels, how they came to have the vehicle, and the presence of the gun in the glove compartment. He felt that the vehicle and/or the gun might have been stolen. Before the search, a check on the vehicle did not produce a report of theft, but he felt that he had probable cause to search because the men were in somebody’s car other than their own; that “something was amiss”; and that the search might produce “fruit or roots ... of other crimes. . . .” There was nothing to indicate that the gun in the glove compartment was stolen except that appellee Combs appeared “nervous” when the weapon was exposed to the trooper’s view.

The defendants gave a different version of the encounter. They testified, inter alia, that the car was not weaving; that the trooper did not exit his vehicle until two other officers arrived on the scene; that the search of the car was conducted at gunpoint; that there was no discrepancy in the information given about how and from whom the vehicle was obtained; and that they were not asked for that information until after the search was conducted. The trial court, considering the evidence in the light most favorable to the State, found that even if its “sole motivation were to rationalize the existence of probable cause, and thus hold the defendants accountable for their misdeeds, it would transgress the outermost limits of intellectual honesty to do so under these circumstances. Such a finding would ... be an unprecedented expansion of the parameters of probable cause. ... [A] strong reason to suspect that something is amiss is not tantamount to the existence of probable cause.” The court granted defendants’ motions to suppress the evidence.

“On appeal, a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Lombardo v. State, 187 Ga. App. 440 (1) (370 SE2d 503) (1988). “In the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress. [Cit.]” State v. Betsill, 144 Ga. App. 267, 268 (240 SE2d 781) (1977). While the trooper’s initial detention of the vehicle may have constituted a bona fide traffic stop based on the observed “weaving” (Pupo v. State, supra, Division 1), the trial court, having had the opportunity to observe the witnesses’ demeanors and hear their testimony, found that the evidence was insufficient to support a finding of probable cause to search the vehicle. We agree. Id. Division 2. “Probable cause means less than a certainty but more than mere suspicion or possibility. [Cit.] Mere speculation, rumor or opinion is not enough; there must be reasonable grounds after inquiry. [Cit.]” Yocham v. State, 165 Ga. App. 650 (3) (302 SE2d 390) (1983). “ ‘(P)robable cause does not demand the certainty we associate with formed trials, [cit.] [,] [but there must be] a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ [Cit.]” State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984). Feelings that something is “wrong” or “amiss,” like inarticulate hunches, are not sufficient to justify a seizure under the Fourth Amendment. That Trooper Bennett’s feelings about appellees proved correct is perhaps a tribute to his policeman’s intuition, but it is not enough to justify, after the fact, a search and seizure that was objectively unreasonable at its inception. The record does not contain evidence demanding the conclusion that Bennett had a reasonable suspicion that appellees were carrying drugs, and so the search and seizure cannot be upheld on that ground. Tarwid, v. State, 184 Ga. App. 853, 856 (363 SE2d 63) (1987).

Decided May 22, 1989.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellant.

Grayson P. Lane, Randall M. Clark, for appellees.

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs in judgment only.


text:
    A89A0612.
    MIMS v. THE STATE.
    (382 SE2d 414)
   Beasley, Judge.

Following the denial of his amended motion for new trial, Mims appeals his conviction and sentence for aggravated assault with intent to rape, OCGA § 16-5-21 (a) (1).

1. Appellant contends that the State failed to prove his identity as the perpetrator of the offense beyond a reasonable doubt.

The evidence viewed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed that at approximately 3:00 p.m. on September 19, 1986, Jones was driving west on Georgia Interstate 16 towards Macon. She was in the right hand lane when a tractor-trailer truck pulled in front of her and slowed down. Jones moved into the left lane to pass the truck. She noticed the driver pointing out his window at her mini-van’s right front tire. Jones went around the truck and got back in the slower right lane. When she did, the truck driver flashed his lights. Jones assumed there was something wrong with her tire even though she fairly recently had new tires put on the van. Jones pulled over into the emergency lane and the trucker pulled in behind her.

Jones and the trucker both exited their vehicles and the trucker came forward and kicked at Jones’ tire. The trucker said the tire seemed okay but that the lug nut should be checked. He asked if Jones had a tire iron. Jones did not want to bother with it so she told the trucker not to worry about it, that she would have it checked when she got home. The man said he had a screwdriver in his truck; he got it, came back and took the hubcap off. After checking the lug nuts, the trucker said the tire seemed all right. He could not get the hubcap back on. Jones said she would put it in the back seat and get it put back on when she got home. Jones had her car keys in her hand. When she went to unlock her passenger door to put the hubcap in, the truck driver grabbed her and pushed her down into the passenger seat.

The trucker pushed his hand up Jones’ dress and down into her panties. Jones started screaming and trying to fight back. Jones’ right hand was pinned down but she reached over with her left hand and was blowing the horn trying to get the attention of a passerby. Cars did go by but apparently did not realize what was transpiring because it was taking place on the very far right side of the road.

The trucker kept making sexually offensive statements. As Jones was still hitting the horn, the driver said, “if you’re not good, I’ll put you in the back of the truck.” So Jones stopped blowing the horn. The man then inserted his finger in Jones’ vagina and discovered that she was menstruating. The man decided to let Jones go.

Jones closed the door as fast as she could and went over to the driver’s side. During the struggle her radar detector had become unplugged; in her nervousness, she reached up to plug it back in. The trucker saw her doing that and pointed his finger at Jones not to do that. Jones immediately took off going as fast as she could. Jones lived in Florida and was not familiar with the area. She did not want to stop anywhere on 1-16 because she did not know if the trucker was following her. The only place she knew to stop was the weigh station in Forsyth on 1-75. She went through Macon but did not stop because she did not know the neighborhoods and wanted to go somewhere where she felt safe. The weigh station was closed up, hoping that a policeman would pull her over, she drove extremely fast to her mother’s house in Rockdale County where she reported the incident to the county police.

Jones was able to give a description of her attacker and of the truck. She had been in arm’s length to the attacker, it was daylight and sunny during the attack, and the attacker did not have any kind of mask on his face. The description fit that of Mims and his rig.

Approximately three weeks later, Jones positively identified Mims as her attacker in a photographic line-up. When first looking at the photographs she said it was harder than she thought it was going to be and that she wanted to be certain that she identified the man that attacked her and not anyone else. At trial she testified that she “also said something along the lines of, if I had to pick one, this would be him. That’s what I said when I initially selected him. But then the more and more I looked at it, the more and more definitely sure I became. And seeing him in the courtroom, I’m, you know, even more sure.” She further stated that there was no way she could forget the face of the man that attacked her. In the courtroom she identified Mims as her assailant.

Evidence of three similar transactions was introduced. Two of the female victims in those transactions testified and positively identified Mims as their attacker.

The evidence was sufficient to enable any rational trier of fact to find Mims guilty of the aggravated assault with intent to rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) ([1979).

2. It is contended that a mistrial should have been granted because the GBI agent’s testimony violated defendant’s Federal and State Constitutional rights to remain silent and not incriminate himself and secondly, to have a fair trial, i.e., one without an expression of opinion that no defense had been presented at a previous trial.

On redirect, the agent was asked about his attendance at prior court proceedings adjudicating similar transactions involving Mims, evidence of which had already been presented. The State: “And in all these cases the Defense used was what? Identity or that he did it and had some excuse [?]” Agent: “I never really saw a defense unless it would be identity. There was never a statement that he did —”

Defendant objected and asked for a mistrial. This was denied after the court instructed the jury to disregard any statement the agent might have made in response to the last question. Defendant made no further objection.

“If defendant was not satisfied with the court’s action in response to the [allegedly] improper . . . [statements by the agent], it was incumbent upon him to renew his objection and motion for mistrial. His failure to do so precludes his complaint on appeal. [Cits.]” Delaney v. State, 154 Ga. App. 772, 773 (1) (270 SE2d 48) (1980); see also Copeland v. State, 160 Ga. App. 786, 788 (6) (287 SE2d 120) (1981).

3. Appellant contends that the trial court erred in denying his motion in limine and admitting testimony of the GBI agent relating Mims’ statements regarding a previous transaction for which he had been charged and acquitted of kidnapping and rape. He maintains that there was no lawful purpose for the introduction of the prejudicial statements.

The agent testified that Mims stated to him that “he was driving down 1-16 interstate and [the alleged victim] waved him over and then offered him sex for the amount of fifty dollars,” and that “he did have sexual intercourse with [the alleged victim], but he did not pay her the fifty dollars.”

The Supreme Court has not adopted a per se rule prohibiting evidentiary use of independent offenses where an acquittal was obtained. “Instead, ‘the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.’ [Cit.]” Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989).

Identity was the issue in the crime on trial. In the subject other transaction, consent rather than identity was apparently the determinative issue. The State was not attempting to address consent or lack thereof because it was not an issue in this trial, although it had figured in the previous acquittal. Salcedo, supra. The acts for which Mims was acquitted, like the two other transactions, involved women traveling alone on Interstate 16 who were flagged down by a truck driver fitting Mims’ description, were told by the trucker that the right front tire was wobbling, and were attacked by the trucker when they stopped for assistance. Evidence of the similar incident was admissible for the limited purposes of showing Mims’ modus operandi, bent of mind, and lustful disposition. OCGA § 24-3-2; see Felts v. State, 154 Ga. App. 571 (2) (269 SE2d 73) (1980).

4. Appellant urges that the charge regarding presumption of truthfulness in reconciling witnesses’ inconsistent testimony is constitutionally infirm because it negates the presumption of innocence and is burden shifting.

The court charged: “If upon a consideration of the evidence in this case, you find that there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses; it is your duty to settle this conflict if you can, without believing that any witness has made a false statement. When witnesses come and testify in Court, they are presumed to speak the truth. But if you can not reconcile the conflicts, if you find there are some, then it would be your duty to believe that witness or those witnesses whom you think is entitled to your belief. It if for you alone to determine what testimony you will credit and what testimony you will discredit.”

The Supreme Court has agreed that “the presumption-of-truthfulness charge can be misleading and is of little positive value” and has recommended that its use be discontinued. Noggle v. State, 256 Ga. 383, 386 (4) (349 SE2d 175) (1986). The court also in that case determined that the charge is not unconstitutional as appellant proposes.

5. Appellant contends that flight should not have been charged because there was no evidence of it. There was evidence by inference that Mims left the scene of the assault. Further, the agent Golden testified that Mims attempted to escape from jail after being advised he would be in a line-up for the victim to identify her assailant. The charge on flight was authorized. See Johnson v. State, 148 Ga. App. 702 (1) (252 SE2d 205) (1979).

Decided May 22, 1989.

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

Beverly B. Hayes, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.