text:
    A93A1080.
    McDUFFIE v. THE STATE.
    (435 SE2d 452)
   Pope, Chief Judge.

Defendant was charged with the offenses of kidnapping, theft by taking and escape. Defendant gave notice of his intention to interpose the defenses of not guilty by reason of insanity, guilty but mentally ill and guilty but mentally retarded. The jury found defendant guilty but mentally ill at the time of the crimes. Defendant appeals.

1. Four of defendant’s enumerations of error concern the trial court’s charge to the jury concerning the alternative verdicts of not guilty by reason of insanity, guilty but mentally ill and guilty but mentally retarded. Essentially, the trial court instructed the jury that they could consider any of these verdicts as an alternative to guilty or not guilty. As required by OCGA § 17-7-131 (b) (3), the judge also instructed the jury as to the disposition of the defendant in the event any of those alternative verdicts were returned. Defendant argues the charge was inadequate because the trial judge merely informed the jury that the alternative verdicts could be considered by them but failed to instruct the jury concerning the definition of or criteria for returning any of these alternative verdicts. Defendant also argues the instruction was improper because it failed to inform the jury that they must first determine whether defendant was not guilty by reason of insanity before they could consider the alternative verdict of guilty but mentally ill.

We agree that the charge as given was inadequate. “The [Georgia Supreme Court in Keener v. State, 254 Ga. 699 (334 SE2d 175) (1985)] held that when the trial court charges the jury on the defense of insanity and on guilty but mentally ill at the time of the crime, ‘the trial court must make clear to the jury in its charge that if they find the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), they must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. That is to say, if the jury finds the defendant not guilty by reason of insanity, their deliberations must cease, and the jury should not thereafter consider whether the defendant was guilty but mentally ill. (Emphasis supplied.) A jury is not authorized to find that the defendant did not know right from wrong and is guilty but mentally ill.’ [Keener v. State, 254 Ga. at 702-703.]” Price v. State, 179 Ga. App. 598, 601-602 (347 SE2d 608) (1986).

In Price, because there was evidence from which a jury could find defendant did not have the capacity to distinguish right from wrong, the charge which did not comply with Keener, was improper and, even though defendant did not raise the issue at trial or on appeal, this court concluded pursuant to OCGA § 5-5-24 (c) that the charge was harmful as a matter of law. By contrast, in this case no evidence was presented that defendant lacked the capacity to distinguish right from wrong. In fact, both defendant and defendant’s expert witness, a psychologist, testified that defendant did recognize right from wrong but was nevertheless compelled by his history of depression to commit the acts of which he was charged. Thus, even though the charge did not adequately instruct the jury concerning the alternative verdict of not guilty by reason of insanity, the error was harmless because no evidence was presented to support such a verdict. Neither was evidence presented to support a verdict of guilty but mentally retarded.

As to defendant’s argument that the charge concerning the alternative verdict of guilty but mentally ill was inadequate and confusing, defendant has shown no harm. The jury did not return a simple guilty verdict but found defendant guilty but mentally ill so that defendant is entitled to be sentenced accordingly.

2. In the course of defining the evidentiary standard of reasonable doubt to the jury, the trial court stated: “[T]he State is not required to prove the guilt of the Accused beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that can be expected. . . .” The court went on to define reasonable doubt as “a doubt based upon common sense and reason. It does not mean a vague or arbitrary notion, but it is a doubt for which a reason can be given, arising from a consideration of the evidence, the lack of evidence, a conflict in the evidence, or a combination of any of these.” Defendant argues that the reference to “moral certainty” is improper and violates the holding of Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990). We disagree.

In Cage, in addition to stating that guilt must be found to a moral certainty, the trial court defined reasonable doubt as consisting of “ ‘such doubt as would give rise to a grave uncertainty. ... It is an actual substantial doubt.’. . . [Cit.]” Id. at 40. The United States Supreme Court found the charge improper not because of the use of the term “moral certainty” but because of the Court’s concern that use of the phrases “grave uncertainty” and “actual substantial doubt” suggested a higher degree of doubt than mere reasonable doubt such that “[w]hen those statements are then considered with the reference to ‘moral certainty,’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id. at 41. In this case, however, the trial judge expressly instructed the jury that a reasonable doubt was one that was based on a consideration of the evidence. “We find that the instruction regarding ‘reasonable doubt’ and ‘moral and reasonable certainty’ is a correct statement of the law and is part of the pattern jury charges for criminal trials.” Reed v. State, 204 Ga. App. 272, 273 (3) (419 SE2d 45) (1992). See also Mathis v. State, 184 Ga. App. 455 (3) (361 SE2d 856) (1987); Moore v. State, 170 Ga. App. 698 (3) (318 SE2d 172) (1984).

3. We reject defendant’s argument that the trial court erred in denying his motion for mistrial made when the prosecutor, during closing argument, stated that defendant should have taken responsibility for his actions. Defendant testified and admitted he committed the acts for which he was charged. His defense consisted of his argument that he should not be found guilty because he was compelled to commit the acts due to his depression. From the evidence presented by defendant it is possible to deduce that defendant was attempting to avoid responsibility for his acts. It is permissible for a prosecutor, in argument to the jury, to draw deductions from the evidence, “and the fact that a deduction may be illogical, unreasonable, or even absurd, is a matter for reply by adverse counsel and not rebuke by the court.” Johnson v. State, 150 Ga. App. 405, 407-408 (258 SE2d 22) (1979).

Decided August 6, 1993

Reconsideration denied August 24, 1993.

Jackson & Schiauone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

4. We also reject defendant’s argument that the trial court erred in refusing to permit defendant to admit in evidence certain documents contained within the records of the Department of Corrections. The documents contained notations, evaluations and diagnoses of defendant’s mental and emotional condition made by persons who were not presented as witnesses. “Records which contain diagnostic opinions of third parties not before the court are not admissible under the business records exception to the hearsay rule.” Baker v. State, 251 Ga. 464 (306 SE2d 917) (1983). Accord Hurt v. State, 239 Ga. 665 (10) (238 SE2d 542) (1977).

5. Finally, we reject defendant’s argument that the trial court erred in denying his motion for change of venue. The transcript of the voir dire of the jury and the selection of jurors show that fair and impartial jurors were empaneled and that defendant did not exhaust his peremptory challenges and the record as a whole fails to show the setting of the trial was inherently prejudicial. Thus, no error was shown. See Devier v. State, 253 Ga. 604 (4) (323 SE2d 150) (1984); Coleman v. State, 237 Ga. 84 (1) (226 SE2d 911) (1976).

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A1083.
    BROWNING v. FEDERAL HOME LOAN MORTGAGE CORPORATION.
    (435 SE2d 450)
   Birdsong, Presiding Judge.

This is a pro se appeal by Ella Browning from an order granting writ of possession, and ostensibly from the denial of a motion for new trial and extraordinary new trial in a dispossessory suit. Appellee Federal Home Loan Mortgage Corporation forecloséd upon the residential property in question; at the time of foreclosure, appellant occupied the premises pursuant to an agreement with the former owner. After demanding possession, appellee filed a dispossessory warrant seeking possession of the property and no personal money judgment against appellant. Appellant’s answer raised no defenses to the dispossession. The state court entered an order granting appellee a writ of possession. Held:

1. Appellee’s motion for contempt, motion for damages (frivolous appeal), and supplemental motion for damages (frivolous appeal) are denied. See generally Pulliam v. Nichols, 202 Ga. App. 95, 97 (413 SE2d 215).

2. Appellant has not established by the record that the trial court erred in failing to enter timely findings of fact and conclusions of law, pursuant to OCGA § 9-11-52. The record does not reflect that appellant made a timely request for entry of such findings and conclusions. See generally OCGA § 9-11-52 (a). Both error and harm must be affirmatively shown by the record. Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892). Further, OCGA § 44-7-56 merely authorizes the trial court to enter findings of fact and conclusions of law, within a 15-day time period, either sua sponte or after receiving a timely request for such entry pursuant to OCGA § 9-11-52 (a).

3. Appellant asserts the trial court erred by failing to dismiss the action upon appellee’s failure to show that defendant “John Doe and Others” were tenants within the meaning of OCGA § 44-7-50 et seq.

“ ‘The defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action (and) if the defendant so answers, a trial of the issues raised shall be had in a civil court of record. OCGA § 44-7-53.’ ” Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 594 (3) (409 SE2d 71). Appellee/plaintiff averred in its affidavit in support of writ of possession that “John Doe and all other occupants, defendant^] herein, [are] in possession as . . . tenant at sufferance, as a result of foreclosure sale 10/6/92, of [said house and premises at issue], the property of said plaintiff, (that said tenant is holding said house and premises over and beyond the date of foreclosure).” Appellant Ella Browning filed a handwritten pro se answer averring that she was under contract to purchase the property “before foreclosure” to protect her interest in the property. Appellant subsequently filed a pro se typewritten amendment to answer and counterclaim, “without deleting any statement from the original answer.” In the purported amendment to answer, appellant includes, albeit unartfully, a motion to dismiss on grounds, inter alia, that the action is a nullity as the named defendant “does not connote a contracting party or one holding under a contracting party.” However, subsequently in her brief, appellant concedes that she, Ella Browning, is “the resident in the premises” at issue. The effect of appellant’s concessions and procedural posturing was to fail to deny effectively, notwithstanding certain contradictory general denials averred in the amended answer, that appellee was owner of the premises by reason of foreclosure and that appellant was in possession of the premises as the resident as a tenant in sufferance. “Although the relationship of landlord and tenant must exist before a dispossessory hearing can be held under OCGA § 44-7-50 et seq. . . . the provisions of OCGA § 44-7-50 . . . are clearly satisfied when the relationship between the parties is that of legal title holder and tenant at sufferance. . . . Appellant’s legal right to possession ended when appellee became the legal title holder and appellant, as a tenant at sufferance, was subject to being summarily dispossessed.” Stevens v. Way, 167 Ga. App. 688, 690 (5) (307 SE2d 507). “ ‘As to the claim that no landlord/tenant relationship was shown to exist, it is well established that “(w)here the grantor, or his privy, in a security deed remains in possession of the premises after lawful foreclosure of the deed, he is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale, or by his privy.” . . .’” West v. Veterans Admin., 182 Ga. App. 767, 768 (357 SE2d 121). Thus, “[a] showing that one party is the legal titleholder of the property and the other party is a tenant at sufferance satisfactorily establishes” the requisite relationship. Rutledge v. Colonial Financial Svcs., 173 Ga. App. 662, 663 (327 SE2d 791). Thomas, supra, is not controlling, as appellant failed to answer and effectively deny that a landlord-tenant relationship exists, particularly in view of the admissions supporting appellee’s averment of ownership, and appellant’s concession of continued residence on the premises. Moreover, in the absence of a transcript, we must presume the evidence was sufficient to support the judgment of the trial court. Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500).

Decided August 4, 1993

Reconsideration denied August 24, 1993

Ella Browning, pro se.

Schreeder, Wheeler & Flint, Debbie A. Wilson, Lawrence S. Burnat, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A0895.
    HOLMES v. THE STATE.
    (435 SE2d 492)
   Blackburn, Judge.

On May 15, 1992, a one-count indictment, alleging armed robbery, was returned against Aurice Brown, Ricky Denson, Hubert Wiggins, Jr., and appellant, Dexter Holmes. Brown had not been arrested at the time of the trial. Co-defendants Denson, Wiggins and Holmes were tried together. The trial court granted a directed verdict of acquittal as to defendant Wiggins and a mistrial was declared as to defendant Denson. The jury found Holmes guilty of armed robbery.

1. On appeal, Holmes asserts that the trial court erred in failing to give curative instructions with regard to the court’s statements concerning its decision to grant a directed verdict of acquittal as to defendant Wiggins. The trial court stated: “Okay. Ladies and gentlemen, while y’all were in the jury room, the State announced that they didn’t have any more evidence. So the State has rested and, with regard to Mr. Wiggins, I’ve determined that there is not enough evidence to go to a jury on him. So I’ve directed a verdict of not guilty with regard to Mr. Wiggins. So it is now time for the defendants to present their case. ...” Holmes argues that by this statement, the trial court implied that there was sufficient evidence with regard to the remaining defendants, thereby commenting on the evidence in violation of OCGA § 17-8-57. While the better practice would have been for the trial judge not to have indicated the reason why defendant Wiggins’ case was no longer before the jury, we have previously determined that “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) Faulkner u. State, 186 Ga. App. 879, 880 (368 SE2d 820) (1988). Also, the trial court instructed the jury that it should not consider any of the court’s rulings as an expression of opinion on the weight of evidence presented in the case.

2. In his second enumeration of error, Holmes asserts that the trial court erred in failing to instruct the jury as to the definition of a felony. In his request to charge, Holmes requested that the court instruct the jury that “a felony means a crime punishable by death, or by imprisonment for life, or by imprisonment for more than twelve months.” Holmes contends that the charge was justified as the word “felony” appeared on the indictment which the jury takes to the jury room during their deliberation. He argues that the jury should be instructed as to the definition of any legal term that is used in the indictment.

Generally, the trial court, rather than the jury, is responsible for the determination of punishment after the guilt or innocence of the defendant has been established. See Wallace v. State, 188 Ga. App. 77, 78 (371 SE2d 914) (1988). While the defendant’s lawyer was very creative in attempting to inject into the trial the non-existent potential of the defendant being sentenced to death in the case sub judice, the trial court appropriately refused to give the requested charge, and did not err in doing so.

Decided August 24, 1993.

Hallman & Stewart, D. Jay Stewart, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

“A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Citations and punctuation omitted.) Pace v. State, 201 Ga. App. 475, 476 (411 SE2d 361) (1991). Holmes’ request to charge was not adjusted to the facts of the case as the State did not seek the death penalty in this case.

3. In his third enumeration of error, Holmes asserts that the trial court erred in failing to charge the jury that they were not to be influenced by public opinion whether it be for or against the accused and that they were not to be concerned about the attitude of the public toward the crime charged. There was no evidence presented at trial which would warrant the requested charge. As the charge was not warranted by the evidence presented at trial, the trial court did not err in failing to give the requested charge. Chandler v. State, 204 Ga. App. 512, 513 (419 SE2d 751) (1992). The trial court did charge the jury that they were to consider the testimony and the evidence presented together with the court’s charge in determining the guilt or innocence of each defendant.

Judgment affirmed.

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


author: Pope, Chief Judge.

text:
    A93A1091, A93A1092.
    ROCKDALE AWNING & IRON COMPANY, INC. et al. v. KERBOW et al.; and vice versa. ROCKDALE AWNING & IRON COMPANY, INC. et al. v. KERBOW et al.; and vice versa.
    A93A1093, A93A1094.
    (435 SE2d 619)
   Pope, Chief Judge.

Plaintiffs James C. Kerbow and Jean S. Kerbow brought this action seeking damages for personal injuries and loss of consortium against, inter alia, defendant Rockdale Awning & Iron Company, Inc. (“Rockdale”). The jury returned a verdict for plaintiff James Kerbow in the amount of $14,631.61 and on May 6, 1992, the trial court entered judgment accordingly. On May 19, 1992, plaintiffs filed a motion for new trial on the general grounds and on December 14, 1992 amended their motion to include several specific or special grounds. The trial court denied plaintiffs’ motion on December 18,1992 and on December 31, 1992 plaintiffs moved for reconsideration of the denial of their motion. Rockdale filed a motion to dismiss plaintiffs’ motion for reconsideration and a hearing was conducted on both parties’ motions on January 13, 1993. On the morning of January 14, 1993 Rockdale filed its notice of appeal from the judgment entered against it on May 6, 1992, and that appeal was docketed in this court as Case No. A93A1091. On the afternoon of January 14,1993, after Rockdale’s notice of appeal had been filed, the trial court entered an order granting plaintiffs a new trial on their motion for reconsideration. On January 29, 1993 plaintiffs filed their cross-appeal to the notice of appeal filed by Rockdale on January 14, which was docketed in this court as Case No. A93A1092. On February 1, 1993 Rockdale filed a notice of appeal from the order granting plaintiffs a new trial and that appeal was docketed in this court as Case No. A93A1093. Plaintiffs filed a cross-appeal in this case also, which was docketed in this court as Case No. A93A1094. We have consolidated the appeals and cross-appeals filed by the parties in this case for review by this court.

Case Nos. A93A1091, A93A1092

1. We must first determine our jurisdiction to entertain the appeals and cross-appeals which have been filed in this case. Plaintiffs have filed a motion to dismiss in Case No. A93A1091, arguing that under the authority of Housing Auth. of Atlanta v. Van Geter, 252 Ga. 196 (312 SE2d 309) (1984), the notice of appeal filed by Rockdale on the morning of January 14 did not divest the trial court of jurisdiction to rule on plaintiffs’ motion for reconsideration of the previous denial of their motion for new trial. Rockdale seeks to distinguish Van Geter, arguing that the holding of that case does not apply to the situation presented in the case at bar because the motion pending at the time Rockdale filed its notice of appeal was not a motion for new trial, as was the situation in Van Geter, but rather was a motion for reconsideration of a denial of a motion for new trial, which does not extend the time for filing the notice of appeal. Pretermitting whether the holding in Van Geter applies under the circumstances here, we find that the lower court had not yet been divested of jurisdiction over the case at the time its order granting plaintiffs a new trial upon motion for reconsideration was entered on the afternoon of January 14. As is pertinent to this appeal, OCGA § 5-6-46 provides that the notice of appeal shall serve as a supersedeas in a civil case “upon payment of all costs.” The record in this case shows that Rockdale did not pay costs until January 25, 1993. Consequently, the filing of the notice of appeal did not serve as a supersedeas and the trial court did not lack jurisdiction to enter the January 14 order granting plaintiffs a new trial. Chappelaer v. Gen. GMC Trucks, 130 Ga. App. 664 (204 SE2d 326) (1974); see also Hooper v. Southern Bell Tel. &c. Co., 195 Ga. App. 629, 630 (1) (394 SE2d 798) (1990). Because the effect of the order granting plaintiffs a new trial was to vacate the jury verdict from which Rockdale appeals in Case No. A93A1091, said appeal has been rendered a nullity and must therefore be dismissed and the case remanded to the trial court so that a new trial may be had. Likewise, we also find it unnecessary to consider plaintiffs’ cross-appeal, docketed in this court as Case No. A93A1092, as such has been rendered moot by the grant of a new trial and the dismissal of the main appeal in this case. Lastly, plaintiffs’ motion for penalty for frivolous appeal is denied.

Decided August 24, 1993.

Gorby & Reeves, Michael E. Fisher, Jonathan R. Levine, for appellants.

Barksdale, Irwin, Tally & Sharp, David B. Irwin, John M. Hyatt, for appellees.

Case Nos. A93A1093, A93A1094

2. Rockdale has also filed a notice of appeal from the trial court’s order of January 14 granting plaintiffs a new trial, which was docketed in this court as Case No. A93A1093, and plaintiffs have filed a cross-appeal which was docketed in this court as Case No. A93A1094. This court has previously held that the grant of a motion for new trial is not a final judgment within the meaning of OCGA § 5-6-34 (a) (1), and that, therefore, an application for interlocutory review is required to be filed in order to give this court jurisdiction to entertain an appeal under these circumstances. Murray v. Rozier, 186 Ga. App. 184 (367 SE2d 886) (1988). It follows that we are without jurisdiction of this direct appeal, and this appeal, as well as plaintiffs’ cross-appeal, must also be dismissed.

Appeals dismissed. Motion for penalties denied.

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


text:
    A93A1139.
    HOGAN v. THE STATE.
    (435 SE2d 494)
   Blackburn, Judge.

The appellant, Sherren Hogan, was charged alternatively with one count of armed robbery and one count of robbery by intimidation. Following a trial by jury, he was found guilty of robbery by intimidation and sentenced to 15 years’ imprisonment with credit for time served. Hogan was acquitted of the armed robbery charge. The trial court denied his subsequent motion for new trial but permitted Hogan’s filing of this out-of-time appeal.

1. Hogan maintains that the trial court erred in denying his motion for a directed verdict of acquittal as the evidence was insufficient to support his conviction. We disagree.

At trial, the 73-year-old victim testified that on the morning of April 13, 1989, she went to a service station for the purpose of purchasing gas for her 1979 Ford LTD. She exited her automobile and entered the store to pay for the gas. As she attempted to get back into her automobile after she filled the fuel tank, a young man wearing camouflage clothing appeared at her car door with one of his hands in his pocket and repeatedly stated that he wanted her automobile and that he had a gun. The victim became frightened when the man grabbed her car keys out of her hand, jumped into her car, and left the parking lot. After the automobile was located in North Carolina and returned to the victim, the victim found camouflage clothing in the trunk of the automobile, which clothing had not been in the trunk at the time that the automobile was stolen. In addition to the clothing, a job application bearing Hogan’s name was found in the automobile..According to an officer investigating the theft, Hogan fit the description given by the victim of the robbery suspect.

In addition to the victim’s testimony, the evidence produced by the State showed that Hogan was in Lexington, North Carolina, on April 18, 1989, five days after the theft, in possession of the subject automobile. Initially, Hogan denied his identity but his wallet contained a driver’s license and a picture I.D. of him. Hogan later maintained that the car belonged to a friend, but he was unable to provide the officers with the name of the friend. As a result, Hogan was arrested. He later stated that he took the Ford LTD from two men who he overheard admit to the theft of the vehicle at a restaurant located within a mile of the scene of the theft. Hogan also admitted that the clothing found in the trunk of the automobile belonged to him but he denied wearing same on the date of the robbery. A checkbook, on which Hogan’s name had been imprinted, was found in a bag containing items of clothing. Hogan did not present any evidence or testify on his behalf.

“ ‘A directed verdict of acquittal should be granted only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” (Cit.)’ [Cit.]” Daniels v. State, 204 Ga. App. 222, 223 (418 SE2d 790) (1992). See also OCGA § 17-9-1 (a). “A conviction for robbery by intimidation, OCGA § 16-8-40 (a) (2), which is a lesser included offense of armed robbery, OCGA § 16-8-41 (a), requires proof that the theft was attended with such circumstances of terror — such threatening by word or gesture, as in common experience, are likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person.” (Citation and punctuation omitted.) Johnson v. State, 195 Ga. App. 56, 58 (1) (392 SE2d 280) (1990). In the case sub judice, the victim identified Hogan as the perpetrator from a photographic array as well as in court. Further, Officer Burrows testified that the defendant fit the description given by the victim of the perpetrator. In addition, the victim’s testimony concerning Hogan’s gestures and demands at the time that he approached her automobile was sufficient to establish the element of intimidation. Id.

“On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Browning v. State, 207 Ga. App. 547, 548 (1) (428 SE2d 441) (1993). “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Cottingham v. State, 206 Ga. App. 197 (1) (424 SE2d 794) (1992). Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found Hogan guilty beyond a reasonable doubt of robbery by intimidation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Alford v. State, 200 Ga. App. 483 (408 SE2d 497) (1991); Johnson, supra. Accordingly, this enumeration is without merit.

2. Next, Hogan maintains that the trial court erred in refusing to charge the jury on the law of circumstantial evidence. We disagree.

Where the State’s case depends, in whole or in part, upon circumstantial evidence and a proper request to charge the law on circumstantial evidence adjusted to the fact that there is a mixture of direct and circumstantial evidence in the case is made, it is error to fail to give such charge, without regard to whether or not the State’s evidence has been impeached. Mims v. State, 209 Ga. App. 901 (434 SE2d 832) (1993); Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). Defendant’s reliance on Price v. State, 207 Ga. App. 327 (427 SE2d 830) (1993), is misplaced because the identity of the defendant in Price might have resulted from a reliance on circumstantial evidence as, unlike the subject case, the identification testimony was arguably impeached with the result that the jury might have relied upon circumstantial evidence to establish an essential element of the offense charged. In the instant case, the State did not rely on circumstantial evidence to prove any essential element of the offense charged. In Berry v. State, 262 Ga. 614 (4) (422 SE2d 861) (1992), the Supreme Court held that the failure of the trial court to give the requested charge on circumstantial evidence was not error where, as in this case, the court adequately instructed the jurors on direct and circumstantial evidence and the requested charge on circumstantial evidence was not properly adjusted to the evidence. The requested charge was not adjusted to the existence of both direct and circumstantial evidence in the subject case. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618 (414 SE2d 919) (1992); Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404) (1989).

Decided August 24, 1993.

Melissa M. Nelson, for appellant.

3. Lastly, Hogan maintains that the trial court erred in charging the jury that they could convict him if they found that he took the victim’s property by sudden snatching. Contrary to Hogan’s contentions, the trial court recharged the jury, at their request, as to the definition of robbery codified in OCGA § 16-8-40, which included the definition, as Hogan complains, by sudden snatching. “It is generally not error to give an entire Code section in a charge, even though part of the section may be inapplicable to the allegations and the evidence. [Cit.]” Cottingham, 206 Ga. App. at 198. While Hogan maintains that a portion of the Code section complained of was unnecessary based upon the allegations and evidence in the instant case, “we will neither impute an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination.” (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (5a) (421 SE2d 560) (1992). There is nothing about that portion or the rest of the charge that supports Hogan’s contention that the jury was misled to believe that they could have convicted him if they found that he effectuated a robbery by snatching. Accordingly, we find no reversible error.

Judgment affirmed.

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

J. Tom Morgan, District Attorney, Gregory A. Adams, Robert M. Coker, Assistant District Attorneys, for appellee.


text:
    A93A1220.
    GROSS v. THE STATE.
    (435 SE2d 496)
   Blackburn, Judge.

In 1980, appellant Jack Gross was found not guilty by reason of insanity on charges of reckless conduct and was ordered into the custody of the Department of Human Resources for treatment. Gross has remained in involuntary commitment in accordance with OCGA § 17-7-131 (e) since July 1980. Pursuant to OCGA § 17-7-131 (f) (1), Gross has applied for release to the State Court of Chatham County every year, except 1989. After a hearing on each application, they were denied by the trial court. Gross appeals the trial court’s orders dated October 2, 1991, and December 7, 1992, denying his most recent motions for release.

1. Gross argues that the trial court erred in denying his most recent motions for release, as there was insufficient evidence for him to remain involuntarily committed pursuant to OCGA §§ 17-7-131 and 37-3-1 (12). We cannot agree. The record reveals that Gross is diagnosed with chronic paranoid schizophrenia. Gross testified on his own behalf that he was physically able to take care of himself. He also testified that, if released, he would take his medicine. He stated that he needed to get home to his wife and six young children, although, in actuality, he is divorced and his three children are adults. The record indicates that Gross believes he is a secret service agent working at the direction of the President of the United States. Originally, Gross testified that if the President directed him to eliminate a person who was a communistic threat, he would have to follow the President’s orders. Gross then modified his testimony by stating that, “if it had a bearing on” his release, he would not eliminate anyone. He further testified, after much prodding by his attorney, that if he could get his freedom, he would “never take up a gun again.”

An expert in forensic evaluation and diagnosis of mental illness testified that Gross needs supervision 24 hours per day and that Gross could cause “possible eminent harm to himself or others.” He further testified that Gross’ “delusional system of being [a] Secret Service Agent could put [Gross] in a very precarious position. . . . [I]t might put him in the position where he could get shot. . . . [H]is insistence upon carrying a gun is what frightens me. . . .” The expert also testified that Gross has some physical problems and possible heart difficulties that add to Gross’ inability to care for his own needs.

The senior psychologist for the Forensic Service Division of Central State Hospital testified that he had never seen Gross in an unmedicated condition and that if Gross was released he is unsure whether Gross would continue with his medication. He continued that even a minor reduction in Gross’ medication could cause Gross to possibly act on the delusional plots. He further testified that he did not believe that Gross would give up the right to own guns, despite Gross’ testimony to the contrary. The expert opined that Gross’ prognosis in an unstructured environment would be poor to guarded, and that, if released, Gross could very possibly cause harm to himself or others.

With the exception of one incident, Gross never demonstrated violent behavior while at Southwestern State Hospital. In 1992, he attempted to leave the hospital grounds and “took a swing” at the hospital employee who tried to stop him. Gross testified that the hospital employee had stabbed him, and that he acted in self-defense. However, the employee did not stab Gross.

The evidence and testimony indicate that Gross continues to be highly delusional. He believes that he is a secret service agent working for the government, that he has the ability to contact the President, and that he was secretly married to Queen Elizabeth when he was eight years old. Furthermore, Gross has delusions that certain people are trying to kill him. The experts testified that Gross could hurt himself or others while acting on one of his delusions, even if Gross remained on medication.

In deciding applications for release, “[t] he court may rely on the presumption of continued insanity, OCGA § 24-4-21, and is not bound by the opinions of either lay or expert witnesses, [cits.].” Butler v. State, 258 Ga. 344, 345 (369 SE2d 252) (1988). See also Stephens v. State, 201 Ga. App. 744 (412 SE2d 571) (1991). In the case sub judice, none of the professionals who have evaluated Gross recommended him for release. In fact, all of the experts agreed that, if released, Gross could be a threat to himself or others. Upon our review of the record, we found sufficient evidence of Gross’ continued insanity and need for involuntary inpatient treatment. See OCGA § 37-3-1 (9.1) and (9.3).

2. In his second enumeration of error, Gross asserts that the trial court erred by refusing to allow him to be released on a conditional basis pursuant to OCGA § 17-7-131 (e) (5) (A). However, no evidence was presented with regard to the existence of a 24-hour structured group home. In fact, the testimony indicated that there were no such facilities in middle or southeastern Georgia. Furthermore, due to our holding that Gross is in need of inpatient treatment, this enumeration is without merit.

Judgment affirmed.

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

Decided August 24, 1993.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.


text:
    A93A0955.
    RIVERDALE POOLS & CONSTRUCTION, INC. v. EVANS.
    (435 SE2d 501)
   Birdsong, Presiding Judge.

Riverdale Pools appeals from a consent judgment resolving an action for breach of a specific stipulation in a contract to sell real estate. The record shows that Evans bought an unimproved lot from Riverdale Pools, and thereafter discovered the property was not connected to a sewer system and did not have a septic tank. After Evans filed suit for breach of a specific stipulation in the contract that warranted that the property was connected to a sewer system or septic tank, he was granted partial summary judgment on liability. Although Riverdale Pools took a direct appeal from this decision in accordance with OCGA § 9-11-56 (h), ultimately the appeal was withdrawn upon the motion of Riverdale Pools. While these facts are not recited in the record, we take judicial notice of records on file in this court. See Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367).

Later, Evans moved for an award of damages, but before a hearing was conducted, the parties agreed to a settlement of the case. Thereafter, the trial court entered a consent judgment that recited the parties, through counsel, “have consented that a judgment be entered against defendant” for a sum specified.

Subsequently, Riverdale Pools filed a notice of appeal that specified it appealed from the final order entered on July 24, 1992, and the order granting summary judgment entered July 31, 1990. Riverdale Pools, however, does not challenge the consent judgment. Instead, the enumerations of error challenge certain decisions regarding interpretation of the contract by the trial court in granting partial summary judgment to appellee, Guy E. Evans, on July 31, 1990. Held:

1. Our first consideration is whether we have jurisdiction over this appeal. Court of Appeals Rule 32 (d); Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22).

2. A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint. Morgan v. Miller, 191 Ga. App. 803, 804 (383 SE2d 183). In this appeal, Riverdale Pools cannot be aggrieved by the trial court’s judgment since it was entered with its consent. Moreover, the enumerations of error concern only the grant of partial summary judgment, and do not “challenge the terms, validity or enforceability of the judgment entered pursuant to the parties’ consent agreement. OCGA § 5-6-48 (b) (3) provides an appeal may be dismissed ‘(w)here the questions presented have become moot.’ Such clearly is the situation in the case at bar. Thus [Riverdale Pools’] appeal must be dismissed. [Cits.]” Royal v. Curry, 199 Ga. App. 133, 134-135 (404 SE2d 302).

Decided August 25, 1993.

Stephen F. White, for appellant.

H. Geoffrey Slade, for appellee.

3. In any event, even if the appeal were not dismissed, an affirmance must result because of the entry of the consent judgment. “Since appellant did not seek to have the consent judgment vacated or set aside, [it] is estopped from going behind the judgment so as to reopen the matter in this court. [Cits.]” Rozier v. Davis/Smith Mtg. Corp., 193 Ga. App. 340 (387 SE2d 627).

Appeal dismissed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A93A0085, A93A0086.
    NOTTINGHAM COMPANY v. RESOURCE MATERIALS CORPORATION et al.; and vice versa.
    (435 SE2d 447)
   Cooper, Judge.

This appeal and cross-appeal result from a jury verdict against appellant on its claim against appellees and a verdict awarding damages to appellees on their counterclaim.

Appellant, a company in the business of buying, blending and selling chemicals, employed appellee Richard Melcher from 1974 through 1982. During his employment, Melcher became involved in the development of a product for sale to Arr-Maz, one of appellant’s customers. The product, known as FR835, was made by mixing two chemicals purchased from Emery Industries with several other ingredients. Appellant considered the information related to the development of FR835 to be confidential. In 1983, Melcher resigned from his position with appellant, began operating his own company, appellee Resource Materials Corporation, and entered into a joint venture with Arr-Maz for the development of a product almost identical to FR835. In 1986, appellant filed a lawsuit against appellees, alleging misappropriation of a trade secret, tortious interference with business relations, wrongful appropriation of a business opportunity and breach of the non-compete and non-disclosure provisions of the employment agreement between appellant and Melcher. Appellees responded to the complaint and filed a counterclaim alleging that appellant maliciously brought the complaint for the purpose of harassing appellees. Appellees subsequently amended their counterclaim to allege two causes of action: a claim for intentional infliction of emotional distress and a claim for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The parties filed cross-motions for summary judgment and both were denied by the trial court. In a pretrial order, appellees contended that the action was brought maliciously and without cause and that appellant was liable for the tort of emotional distress, malicious abuse and use of process and malicious prosecution. Appellees also included as part of the pretrial order their contention that they were entitled to have a Yost claim considered in the event the jury returned a verdict in their favor.

Appellees requested a charge on intentional infliction of emotional distress. However, instead of giving that charge, the trial judge merely read to the jury appellees’ contentions of abusive litigation as alleged in their original counterclaim. The jury returned a general verdict in favor of appellees on appellant’s claims and the counterclaim, awarding appellees damages on their counterclaim in the amount of $125,000.

After the verdict was read, appellees sought to have their Yost claim submitted to the jury. Appellees informed the court that they would not submit any additional evidence but would make a closing argument to the jury about the evidence. The trial judge stated that he did not believe the evidence supported an additional award under Yost and directed the jury to enter a verdict in favor of appellant on appellees’ Yost claim. The trial court denied the parties cross-motions for new trial and these appeals followed. In Case No. A93A0085, appellant appeals the judgment entered on the jury’s verdict denying appellant’s claims for damages and awarding appellees damages on the counterclaim. In Case No. A93A0086, appellees contend that the trial court erred in directing a verdict against them on their Yost claim.

Case No. A93A0085

1. In eight enumerations of error, appellant alleges error with the verdict and judgment and asserts the general grounds. Appellant first asserts that the verdict against it on appellees’ counterclaim is contrary to law and the evidence because the only evidence offered to support the counterclaim related to the filing of the lawsuit by appellant and such evidence is insufficient to support a claim for intentional infliction of emotional distress. “The law of this state recognizes the tort of intentional infliction of emotional distress. [Cits.] In order to sustain a cause of action, a plaintiff must show that ‘defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.’ [Cit.]” East River Savings Bank v. Steele, 169 Ga. App. 9, 10 (311 SE2d 189) (1983). This court has held that the filing of legal pleadings cannot be reasonably characterized as “humiliating, insulting or terrifying” so as to support a claim for intentional infliction of emotional distress. See Ga. Power Co. v. Johnson, 155 Ga. App. 862 (2) (274 SE2d 17) (1980). The only allegations in the counterclaim which arguably allege the tort of intentional infliction of emotional distress relate to appellant’s filing and pursuit of the lawsuit against appellees. Furthermore, in the pretrial order, which supersedes the pleadings, appellees contend that Melcher’s emotional distress resulted from appellant’s malicious action in bringing the lawsuit. Appellees argue in their brief on appeal that other actions of appellant, such as accusing Melcher of disclosing company secrets and maligning his reputation with a supplier and the EPA, constituted intentional infliction of emotional distress. However, a review of the transcript reflects that such actions were not the motivation behind appellees’ counterclaim, which was solely based on appellant’s filing of the lawsuit. Accordingly, the trial court should have disposed of the emotional distress claim prior to trial and, having allowed it to reach trial, the trial court should have directed a verdict in favor of appellant on that claim. See Webb v. State Auto. Mut. Ins. Co., 198 Ga. App. 609 (402 SE2d 352) (1991).

Appellant also argues that without a valid claim for intentional infliction of emotional distress, appellees’ counterclaim states only a claim for abusive litigation under Yost and that the verdict was contrary to law because the Yost counterclaim was decided in the same proceeding as the main claim. We agree with appellant and reverse. The Supreme Court stated that in a case involving a claim for abusive litigation, “[t]he adjudication of [the Yosi] claim . . . will be deferred, by bifurcation, until after the disposition of the underlying action, whereupon it shall be heard immediately by the same fact finder. . . .” Yost v. Torok, supra at 96. In addition, the Court stated: “No reference to the existence of any such claim will be made before the jury during the trial of the underlying claim.” Id. The jury heard all of appellees’ evidence relating to abusive litigation prior to the jury’s disposition of appellant’s case. We find that this was in direct contradiction of the Supreme Court’s mandate in Yost, and appellant is entitled to a new trial. Since appellees failed to state a claim for intentional infliction of emotional distress, the trial court on retrial should allow the jury to decide the main claim, and immediately following a decision on appellant’s claims, appellees should be allowed to present evidence on their Yost claim.

Decided July 30, 1993

Reconsideration denied August 26, 1993

Hart & McIntyre, George W. Hart, John C. McIntyre, Jr., Kathie G. McClure, for appellant.

2. Appellant also argues that the trial court erred in admitting testimony regarding the fact that appellant filed its lawsuit shortly before the expiration of the applicable statute of limitation. Appellant, relying on Turner v. W. E. Pruett Co., 202 Ga. App. 287 (2) (414 SE2d 248) (1991), contends that the evidence was irrelevant and prejudicial to the jury’s assessment of its case. In Turner, the defendant in a personal injury accident argued that the subject of the timing and service of the plaintiff’s lawsuit was relevant to the credibility of the witnesses. We held that the trial court erred in allowing defendant’s counsel to pursue this irrelevant topic and that the error was harmful because the defendant argued that the timing of the filing of the lawsuit suggested that plaintiff lacked confidence in his claims. However, in the case sub judice, appellant’s delay in initiating legal action had some relevance to appellees’ contentions that Melcher acted in good faith in competing with appellant and that Melcher had permission to compete with appellant. “ ‘Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ (Citations and punctuation omitted.) [Cit.]” West v. Nodvin, 196 Ga. App. 825, 828 (3b) (397 SE2d 567) (1990). We find no error in the trial court’s admission of the testimony.

Case No. A93A0086

3. In the cross-appeal, appellees allege error with the trial court’s direction of a verdict on their Yost claim. “ ‘A motion for directed verdict is to be granted only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. OCGA § 9-11-50 (a).’ [Cit.]” McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 644 (3) (418 SE2d 87) (1992). Appellees presented ample evidence to support their claim of abusive litigation and a directed verdict was not proper.

Judgments reversed in Case Nos. A93A0085 and A93A0086.

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

Paul R. Koehler, for appellees.


text:
    A93A0900.
    OKROSS v. THE STATE.
    (435 SE2d 454)
   Pope, Chief Judge.

Defendant Stephen Okross appeals his conviction on one count of driving under the influence of alcohol and one count of violation of the duty upon striking a fixture. We affirm.

1. The evidence adduced at trial shows that on February 19, 1991, defendant lost control of his vehicle and drove off the road into a ditch and collided with a telephone pole. Two residents of the neighborhood came out to help him and both testified that he smelled strongly of alcohol. The police were called. According to one witness, defendant stated he had no intention of staying at the scene. Both witnesses testified defendant walked down the road stumbling and staggering. When two police officers arrived, the witnesses reported what they had seen.

The police determined that the owner of the car lived down the street and proceeded to defendant’s house. They knocked on the front door repeatedly and announced who they were. One officer testified he went to the back of the house and shined a light in a bedroom window and called out to defendant that if he did not come to the door he would obtain a warrant for his arrest and use force to enter the house and arrest him. A woman inside the house told the officer she would come to the front door. There she said her husband was home and said she would have him come into the living room. She did not completely close the door. While she stepped aside to call her husband the officers entered the house and made the warrantless arrest of defendant.

Defendant objected to the admission of testimony concerning defendant’s refusal to submit to a breath test and testimony concerning the defendant’s manifestations of intoxication observed by the arresting officers on the ground that the arrest was illegal and evidence obtained as a result of the illegal arrest was tainted and inadmissible. After a hearing on defendant’s motion, the trial court concluded that the officer’s entry into the house was without consent and the warrantless arrest of defendant was thus illegal. Nevertheless, relying upon Thompson v. State, 248 Ga. 343 (2) (285 SE2d 685) (1981), the trial court ruled that the testimony which was the subject of defendant’s objection was admissible. We agree.

In response to the State’s argument that the arrest was not illegal, we note that the trial court’s findings concerning the illegality of the arrest in this case must be accepted because it was not clearly erroneous. See Mullis v. State, 201 Ga. App. 75 (1) (410 SE2d 182) (1991). As noted by the Georgia Supreme Court in Thompson, the court must look to the surrounding facts and circumstances to determine whether statements made by the defendant while he was in custody pursuant to an unlawful arrest must be excluded. Just as in Thompson, the officers in this case clearly had probable cause to arrest defendant. See Wadsworth v. State, 209 Ga. App. 333 (433 SE2d 419) (1993). The officers arrested defendant while “honestly though erroneously laboring under the belief that they needed no warrant to seize [defendant].” Thompson v. State, 248 Ga. at 344-345. Thus, because the mistake was not a purposeful and flagrant denial of defendant’s rights and the arrest was not investigatory or undertaken as part of a “fishing expedition” for evidence, the officers’ testimony concerning evidence obtained as a result of the arrest was properly admitted.

2. Defendant argues the trial court erred in allowing the State to present evidence of a similar transaction because the State did not satisfy the requirements set forth in Williams v. State, 261 Ga. 640 (2b) (409 SE2d 649) (1991). In Williams the Georgia Supreme Court ruled that before evidence of independent offenses or acts may be admitted into evidence the trial court must conduct a hearing pursuant to Uniform Superior Court Rule 31.3 (B) at which the State must show: (1) that it seeks to introduce the evidence not to raise an improper inference as to the defendant’s character but for an exception to the general rule of inadmissibility; (2) that sufficient evidence exists to establish the defendant committed the independent offense or act; and (3) a sufficient connection or similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Id.

The trial transcript in this case shows that in a hearing on the defendant’s motion in limine to prevent the admission of such evidence, conducted immediately before the trial commenced, the trial judge referred to a preliminary hearing in which the State presented its argument in support of its request for leave to present evidence of a similar transaction. Although the transcript of the preliminary hearing is not a part of the record, the trial judge indicated that at the preliminary hearing the prosecuting attorney made statements in her place sufficient to show a legitimate purpose for the introduction of the evidence and to show a sufficient similarity between the independent act and the charge of DUI in this case. The trial judge also stated he made a preliminary ruling at that hearing that the State had met its burden and could introduce evidence of an independent offense. A hearing in which the State relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of Uniform Superior Court Rule 31.3 (B). See McGowan v. State, 198 Ga. App. 575 (1) (402 SE2d 328) (1991). We find no error in the admission of the evidence that defendant had previously been charged with DUI. Sufficient similarity with the facts of the case at hand was shown by the fact that both incidents occurred' in the evening hours in Gwinnett County and, just as evidence was presented that defendant appeared intoxicated at the scene of the offense in this case, in regard to the previous transaction evidence was presented that the officer arrested defendant as a result of his failing several field sobriety tests.

Decided August 6, 1993

Reconsideration denied August 26, 1993

Fletcher W. Griffin III, Les Seagraves, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       Although the trial court did not mention that the State had made a sufficient showing of identity, on appeal the defendant argues only that the State failed to show a sufficient connection or similarity between the independent offense or act and the crime charged.


text:
    A93A1085.
    NICHOLS v. THE STATE.
    (435 SE2d 502)
   Birdsong, Presiding Judge.

Nikita Nichols a/k/a Nikita Richardo Nichols or William Thompson appeals his conviction of six counts of burglary, one count of aggravated assault, one count of theft of services, and the sentence. Held:

1. The grant or denial of a severance motion is within the trial court’s discretion. Freeman v. State, 205 Ga. App. 112 (421 SE2d 308). Where the offenses are “ ‘ “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan,” ’ severance lies within the discretion of the trial court.” Bailey v. State, 157 Ga. App. 222, 223-224 (3) (276 SE2d 843). Compare Dobbs v. State, 204 Ga. App. 83 (1) (418 SE2d 443). “The test for the court to consider is ‘(W)hether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.’ ” Dobbs, supra at 84. The offenses were committed or initiated within ninety-two days; four of the burglaries were committed in the same apartment complex and within fifteen days of each other; all burglaries were of apartments; all offenses were committed within two miles of each other. Appellant used the rented apartment, the subject of the theft of services count (Count 8), to store certain stolen property from the burglaries; he also used documents that were missing following a burglary (for which he was not indicted) of an apartment in the same complex as the burglaries subject to Counts 1, 2, 3, and 5, to obtain the right of access to and use of the apartment. The aggravated assault occurred while the burglary charged in Count 5 was in progress. Items taken in the Count 3 burglary were found abandoned in the burglarized apartment where the aggravated assault occurred (Counts 4 and 5). While living in the apartment rented using the missing documents above discussed, appellant committed the Counts 6 and 7 burglaries. These missing documents were subsequently found abandoned in the burglarized apartment subject of Count 7. Items taken in Counts 1, 2, 6, and 7 were found in the apartment subject of Count 8. Appellant has failed to establish by the record that the jury was unable to distinguish the evidence and apply the law intelligently as pertains to each offense. The trial court did not abuse its discretion in denying the motion to sever.

2. The trial court did not err in refusing to strike the averred alias, William Thompson, from the indictment. Majors v. State, 203 Ga. App. 139, 143 (7) (416 SE2d 156).

3. The trial court did not err in denying the motion to suppress certain items seized from appellant’s apartment. In considering the legality of a seizure, this court may consider all relevant evidence of record. Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784).

(a) To be valid a search warrant must contain an adequate description of the person and/or premises to be searched; the test to be applied is outlined in Landers v. State, 183 Ga. App. 691 (1) (359 SE2d 748). A John Doe Warrant is legally sufficient for search of described premises. Hout v. State, 190 Ga. App. 700, 701 (1) (380 SE2d 330). The description of the premises to be searched was legally sufficient. Landers, supra.

(b) Appellant asserts the search warrant failed to describe sufficiently the items to be seized. “A warrant must describe the items to be seized with sufficient particularity to enable a prudent officer to identify them with ‘reasonable certainty.’ [Cit.] However, ‘(w)hen circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.’ ” Thomas v. State, 183 Ga. App. 819, 821 (1) (360 SE2d 75). The items were described with sufficient particularity.

Further, the papers identified in the search warrant were not protected private papers under the Fourth Amendment of the United States Constitution, Art. I, Sec. I, Par. XIII, Georgia Constitution of 1983, or OCGA § 17-5-21 (a) (5). Compare Ledesma v. State, 251 Ga. 885, 890 (7a) (311 SE2d 427). Moreover, seizure of private papers is not precluded by law where those papers are the instrumentalities of a crime and the search is otherwise lawful. Ledesma, supra; compare Lowe v. State, 203 Ga. App. 277, 279 (1) (416 SE2d 750).

Further, “[a]n officer conducting a lawful search is not precluded from seizing tangible evidence of the commission of a crime even though that evidence is not specifically listed in the search warrant.” Banks v. State, 262 Ga. 190, 192 (4) (415 SE2d 634). “ ‘It is not necessary under the law that the officer know with certainty that the item is stolen at the time of the seizure, only that there be probable cause to believe that this is the case.’ ” Jefferson v. State, 199 Ga. App. 594, 595 (405 SE2d 575).

(c) The record reveals that the officer executing the warrant visually examined items in plain view; however, it cannot reasonably be inferred from the record that the officer moved or physically touched these items prior to seizure. Thus, disposition of this case is not controlled by Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347). Compare State v. Field, 188 Ga. App. 639 (373 SE2d 815). Even under Arizona v. Hicks, supra at 324, mere visual observation of and recording serial numbers from the objects “did not constitute a seizure.”

(d) Appellant argues that because the police knew appellant had committed other burglaries they were seeking to find incriminating items from those burglaries during their search, and that accordingly those items were required to be listed on the warrant. In Horton v. California, 496 U. S. 128 (110 SC 2301, 110 LE2d 112), the United States Supreme Court in effect modified its plurality holding in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564); no longer is “inadvertence” a necessary condition for a legitimate plain-view seizure. Compare King v. State, 200 Ga. App. 801, 804 (4) (409 SE2d 865). “ ‘ “(T)he expectation that . . . evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement.” [Cits.]’ ” State v. Echols, 204 Ga. App. 630, 631 (420 SE2d 64); see King, supra. “It is ... an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton, supra at 136. We conclude that at the time the items in question were seized they were in plain view and the officer executing the warrant was lawfully engaged in a search of the premises for the documents specified in the warrant. However, “[t]here are . . . two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view [as they were in this case]; its incriminating character must also be ‘immediately apparent.’ . . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have[, as the officer here did,] a lawful right of access to the object itself.” Id. at 136-137; see In the Interest of A. B., 194 Ga. App. 665 (391 SE2d 683).

Prior to the seizure of all the objects in plain view, the police had probable cause to believe that the objects were the fruits or instrumentalities of a crime; or, in the case of any item from which the identification marks had been removed, an object whose incriminating character was otherwise immediately apparent (see, e.g., OCGA § 16-9-70 (a)), within the meaning of Horton, supra. Items may be seized when probable cause exists that such items are tangible evidence of the commission of a crime. OCGA § 17-5-21.

Moreover, as to those items seized whose identification marks (serial numbers) had not been removed, the incriminating character of the items also was immediately apparent to the police before actual seizure was accomplished. Additionally, no seizure occurred of the items which had been stolen during the Mitchner burglary — the stolen property status of which was established only by means of a phone call to police headquarters initiated after the items were observed in plain view and catalogued — until after that call was completed and the officer had probable cause to believe the items had been stolen. Thus, at the time of seizure, the incriminating character of the Mitchner burglary items also was immediately apparent within the meaning of Horton, supra.

4. The trial court did not abuse its discretion in failing to strike the juror who apparently had been twice burglarized and whose uncle was murdered within the last year during a burglary. The juror, a paralegal, when specifically asked if she could listen and determine the evidence in fair and impartial manner, replied, “I would like to think I can. ... I know what it means to be a fair and impartial member of the jury, and to have a fair and impartial trial. All I can say is I don’t know.” This case lies on a factual continuum between Walker v. State, 262 Ga. 694 (424 SE2d 782) and Johnson v. State, 262 Ga. 652 (424 SE2d 271). However, we find Johnson, supra, controlling.

5. The trial court did not abuse its discretion in limiting appellant’s cross-examination regarding burglaries committed in the Southern Trace Apartment complex after the date of the aggravated assault averred in Count 4, even though during his opening statement the prosecutor asserted, “after the stabbing, Detective Cooper will tell you there were no other burglaries attributable to the defendant at that complex.” In his proffer, appellant did not assert that any of the burglaries with which he was charged was committed by another person who also committed any of the subsequent burglaries. Compare Burton v. State, 191 Ga. App. 822 (2) (383 SE2d 187). Questions of the relevancy of evidence are within the trial court’s discretion; the right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. Timberlake v. State, 200 Ga. App. 64, 66 (2) (406 SE2d 537).

6. The State did not comment impermissibly on appellant’s right to remain silent. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after, receiving Miranda warnings has not been induced to remain silent; as to the subject matter of his statements, the defendant has not remained silent at all. Geter v. State, 174 Ga. App. 694, 695 (2) (331 SE2d 68); see Malone v. State, 181 Ga. App. 563 (2) (353 SE2d 60).

7. “OCGA § 16-8-5 pertinently provides that ‘(a) person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations . . . or the use of personal property which is available only for compensation.’ The usual definition of ‘accommodations’ is: (a) lodging.” Phillips v. State, 204 Ga. App. 698, 702 (3) (420 SE2d 316). In this case there is direct evidence that appellant obtained services (that is, the lodging) by deception; in obtaining the apartment, he used the name of another, William Thompson, and stolen identification. He also changed locks on the apartment at least twice, and became delinquent in his rent in the amount of $576.66. The landlord obtained a writ of possession against appellant who filed an answer as “William Thompson.” Intent to avoid payment can be proven by circumstantial evidence. See Williamson v. State, 191 Ga. App. 388, 389 (381 SE2d 766). Under the directed verdict test of Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) and Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716), the trial court did not err in denying the motion. To support the guilty verdict of theft of services, circumstantial evidence need only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662).

8. The trial court did not err in admitting the DNA evidence. Compare Caldwell v. State, 260 Ga. 278 (393 SE2d 436); see Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516). The test for admissibility of novel scientific evidence is whether the procedure or technique has reached a scientific stage of verifiable certainty, or whether the procedure rests on the laws of nature. Lattarulo, supra. The trial court need not exclude scientific evidence simply because it bears some possibility of error. Id. Moreover, once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, as was done in this case regarding the disposition of future DNA cases, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature. Id.

Decided August 26, 1993.

Luana K. Walsh, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Suzanne Wynn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1132.
    WALKER v. WILLIS.
    (435 SE2d 621)
   Blackburn, Judge.

On March 21, 1989, the appellant, Charles Walker, collided with a vehicle driven by the appellee, Carolyn Willis, as Willis exited the driveway of a shopping center. Walker subsequently commenced this action against Willis, seeking to recover for personal injuries, medical expenses, and lost wages.

Prior to October 1, 1991, the date of the repeal of the Georgia Motor Vehicle Accident Reparations Act (No-Fault Act), Walker received a total of $5,000 for lost wages and medical benefits from his own no-fault carrier. The case proceeded to trial in October 1992, following which the jury returned a verdict in favor of Walker in the amount of $15,000. Thereafter, however, the trial court reduced the verdict by the amount of basic no-fault benefits received, and entered judgment for $10,000 plus costs. On appeal, Walker contends that the trial court erred in so reducing the jury’s verdict.

Before the repeal of the No-Fault Act, OCGA § 33-34-9 (b) provided that a person who was eligible for economic loss benefits under OCGA § 33-34-4 was precluded from recovering damages in a tort action against a defendant to the extent such basic no-fault benefits were available. The repeal of OCGA § 33-34-9 (b) contained no legislative direction governing its application other than the effective date of October 1, 1991. The issue in this appeal thus is whether the repeal of the statutory provision precluding tort damages for the amount of basic no-fault benefits received should be retroactively applied.

Statutes generally are applied prospectively unless a clear contrary intention is indicated; however, if a statute governs only procedure, it is given retroactive application unless a contrary intention is expressed. Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). “Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.” Id. at 55.

Decided August 26, 1993.

G. G. Kunes, Jr., for appellant.

John T. Croley, Jr., for appellee.

In Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992), this court held that repeal of the No-Fault Act eliminated any claim for statutory penalties and punitive damages that arose prior to the repeal. However, that decision applied the rule that repeal of a law authorizing recovery of a penalty defeats the right to recover such, unless the right has become vested by contract or by a final nonappealable judgment. In Green v. State Farm Ins. Cos., 206 Ga. App. 478, 481 (426 SE2d 3) (1992), we clarified that the repeal was retroactive with respect to available remedies, but not coverage.

In the instant case, Walker received a total of $5,000 in basic no-fault benefits before repeal of the No-Fault Act. Prior to the repeal of that Act, Willis was shielded from liability under OCGA § 33-34-9 (b) for Walker’s economic loss to the extent of the $5,000 basic no-fault benefits Walker received. That limited immunity was a substantive right vested in Willis by operation of the statute, rather than merely a procedural matter that prescribed the method for enforcing a right or obligation. As such, the repeal of the No-Fault Act, effective October 1, 1991, did not affect Willis’ right to have the verdict against her reduced by the amount of the basic no-fault benefits received by Walker.

Judgment affirmed.

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


text:
    A93A1209, A93A1210.
    JONES v. STATE OF GEORGIA (two cases).
    (435 SE2d 507)
   Blackburn, Judge.

These appeals arise from two actions for condemnation filed by the State on February 14, 1991, under OCGA § 16-13-49 (e), seeking to condemn two motor vehicles and $2,250 cash allegedly owned by the appellant, Roy Jones. Jones was served with a copy of each action, and answered each complaint within seven days of service. His answers were not verified.

Subsequently, the district attorney moved for judgment for the State, contending that Jones’ unverified answers failed to comply with OCGA § 16-13-49 (O) (3). After Jones pointed out that the Code section did not become effective until July 1, 1991, three months after his answers were filed, and that former OCGA § 16-13-49 (e) did not require verified, answers, the district attorney amended his motion to contend that OCGA § 9-10-111 required verification.

Decided August 26, 1993.

Knight & Marlowe, Johnny W. Knight, Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

Following a hearing on the motion, the trial court concluded that Jones became a party defendant to the condemnation proceedings by virtue of the State having named him in the actions. The trial court then concluded that Jones’ unverified answers were legally insufficient under OCGA § 9-10-111, and entered judgment for the State.

On appeal, Jones contends that the trial court erred in concluding that he became a defendant in the proceedings and that verification of his answers was necessary. Under former OCGA § 16-13-49 (e), in effect at the time of commencement of these actions, the district attorney was required to verify the complaint and serve the subject property’s owner or lessee, if known, but there was no corresponding requirement for the claimant to verify the answer. Further, Jones argues that verification was not required under OCGA § 9-10-111, because the condemnation actions were in rem proceedings against the property, and he did not become a party defendant merely by being served with and answering the complaints.

The State now concedes that the applicable law supports Jones’ contentions in all respects. Accordingly, as requested by the State, the trial court’s order is vacated and the matters remanded for a hearing on the merits.

Judgments reversed and remanded.

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


text:
    A93A1024.
    HUBBARD v. THE STATE.
    (435 SE2d 709)
   Cooper, Judge.

Appellant was convicted by a jury of hindering the apprehension of a criminal, carrying a pistol without a license and carrying a firearm at a public gathering. He appeals from the judgment entered on the convictions.

This appeal arises from a shooting incident resulting in the death of a young man. Viewing the evidence in a light to support the verdiet, it appears that appellant, his co-defendant Dennard and several other friends were part of a larger group of young people congregating in the parking lot of the Elks Lodge in Americus, Georgia. They did not go inside because they were under 21 and alcoholic beverages were sold there. Appellant arrived with four friends in a car driven by Jeffrey Wright and owned by Wright’s mother, and Dennard came with Michael Daniels in Daniels’ pick-up truck. After Daniels parked his truck a little more than 100 feet away, he and Dennard joined appellant, Wright and the others around Wright’s car near the front of the Lodge. Appellant had a pistol, which he placed on the front seat of Wright’s car. About 15 minutes after appellant and his friends reached the parking lot, the victim emerged from the Lodge and saw appellant and his friends. He turned around and went back inside, reemerging soon thereafter with some of his friends. He approached appellant and the group around Wright’s car, clapping his hands and asking them who wanted to die first. Appellant’s uncle and other older people in the crowd in the parking lot advised appellant and his friends to leave. Taking that advice, appellant and the others who arrived in Wright’s car got back into the car and started to drive away, and Dennard and Daniels headed for Daniels’ truck. However, the victim and his group followed Dennard and Daniels in a threatening manner. As Daniels was getting into his truck, the victim slammed the door on him while the victim’s friends rocked and beat on the truck. Daniels got out of his truck with a stick but was immediately grabbed. The victim then began punching Daniels while the victim’s friends held him. Wright’s car, having been unable to get out the first exit route attempted, was by then passing by the area where Daniels’ truck was located. Dennard ran over to the car and said to appellant, “Give me the gun.” Appellant gave Dennard the gun, and after yelling at the victim to leave Daniels alone, Dennard shot the victim. Dennard then got into Wright’s car and told Wright to take him home. He gave the gun back to appellant and told him to get rid of it. Appellant hid the gun in a hole in a side of a house. The following morning, appellant and his friends were picked up for questioning. During his questioning, appellant acknowledged that he had hidden the gun and showed the detective where it was. Dennard and appellant were both indicted for murder, felony murder, aggravated assault, hindering the apprehension of a criminal, carrying a pistol without a license and carrying a firearm at a public gathering. Dennard was convicted of voluntary manslaughter as a lesser included offense of murder and on all five of the other counts; appellant was acquitted of the first three charges and found guilty of the last three.

1. Appellant first enumerates as error the denial of his motion for a directed verdict.

(a) “A person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony he, . . . conceals or destroys evidence of the crime.” OCGA § 16-10-50 (a) (2). Appellant contends that he could not be found guilty of hindering the apprehension of a criminal because he “abandoned” his crime within the meaning of OCGA § 16-4-5 when he told the police he had hidden the gun and led them to the place it was concealed. However, a person cannot abandon an already completed crime. See Williams v. State, 191 Ga. App. 913 (4) (383 SE2d 344) (1989). From the facts set forth above, reasonable jurors could find that appellant, knowing that Dennard had used the gun to shoot someone, concealed it with the intent of protecting himself and his friend from punishment, thereby completing the commission of the crime of hindering the apprehension of a criminal, hours before he talked to the police. Accordingly, appellant’s reliance on OCGA § 16-4-5 is misplaced.

(b) “A person commits the offense of carrying a pistol without a license when he has or carries on or about his person, outside of his home, motor vehicle, or place of business, any pistol or revolver without having on his person a valid license. . . .” OCGA § 16-11-128. Appellant argues that he was not guilty of carrying a pistol “outside of his home, motor vehicle, or place of business” without a license. (Emphasis supplied.) Thus, the fact that he was carrying the pistol in a motor vehicle which was not his own did not negate the need for a license.

(c) “A person is guilty of a misdemeanor when he carries to or while at a public gathering any . . . firearm. . . . For the purpose of this Code section, ‘public gathering’ shall include, but shall not be limited to, athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption on the premises.” (Indentation omitted.) OCGA § 16-11-127 (a), (b). Appellant contends that he was not guilty of carrying a firearm at a public gathering because he did not carry it inside the Lodge where alcoholic beverages were being sold. However, we have held that the offense of carrying a firearm at a public gathering may occur in a parking area on the grounds of and in close proximity to a public gathering. See Farmer v. State, 112 Ga. App. 438 (1c) (145 SE2d 594) (1965). Moreover, there was testimony from which the jury could conclude that the “younger crowd” who could not go into the Lodge often gathered in the Lodge’s parking lot on Saturday nights and that. on the Saturday night of the incident a large number of people were gathered there, “hanging out,” eating and talking. From this, the jury could reasonably find that the parking lot itself was the site of a public gathering, so that appellant brought the pistol to a public gathering when he brought it to the parking lot regardless of whether he took it inside the building. See Jordan v. State, 166 Ga. App. 417 (4) (304 SE2d 522) (1983). Compare State v. Burns, 200 Ga. App. 16 (406 SE2d 547) (1991).

As reasonable jurors could find appellant guilty of all three offenses beyond a reasonable doubt, the trial court did not err in denying appellant’s motion for a directed verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Citing Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967), appellant next argues that the trial court erred in denying his motion for mistrial after the prosecutor in his opening statement referred to a statement made by appellant’s co-defendant which had not already been ruled admissible. The Georgia Supreme Court has held that “[although it was improper for the district attorney to refer to statements made by the defendants prior to a Jackson v. Denno hearing to determine their admissibility, there was no harm to the defendants because the reference was to ‘statements,’ a neutral term, rather than ‘confessions.’ The district attorney did not go into the content of the statements but merely referred in passing to them.” Brown v. State, 250 Ga. 862, 865 (2) (302 SE2d 347) (1983). As in Brown, the prosecutor in this case referred to a “statement” rather than a “confession” of the co-defendant and did not discuss the content of the statement but merely referred to it in passing. Moreover, unlike the defendants’ statements in Brown, the statement at issue in this case was subsequently ruled voluntary and admissible following a Jackson v. Denno hearing. Under these circumstances, the trial court did not err in denying the motion for mistrial on this ground.

3. In his third enumeration of error, appellant contends that the trial court should have granted his motion for mistrial after the trial court brought appellant’s character into issue by referring to his first offender status. In addition to the offenses for which appellant was tried below, he was charged in a separate indictment with the offense of possession of a firearm while on first offender status. The record indicates that the prosecution and defense had agreed that this separate offense would be tried separately as contemplated in Head v. State, 253 Ga. 429 (3) (322 SE2d 228) (1984). Nonetheless, while swearing the jury, the trial court inadvertently mentioned the second indictment, stating as follows: “You shall well and truly try the issue formed under these two bills of indictment between the State of Georgia and the persons hereafter named and a true verdict given according to the evidence. This applies to criminal action number 90R-021 charging Henry Lee Dennard and Demetrius Hubbard with the offense of murder, felony murder, aggravated assault, hindering apprehension of a criminal, carrying a pistol without a license, carrying a deadly weapon at a public gathering. It also applies to criminal action number 90R-202, which is a special presentment of this court handed down charging Demetrius Hubbard with the offense of possession of a firearm while on a first offender status. And you will give true verdicts according to the evidence, so help you God.” (Indentations omitted.) Outside the hearing of the jury, appellant then pointed out the trial court’s reference to appellant’s first offender status and moved for a mistrial. The trial court denied the motion for mistrial but withdrew consideration of the second indictment from the jury’s consideration without again referring to appellant’s first offender status. The court then repeated the charges against Dennard and appellant in the first indictment and instructed the jury that “these will be the sole and only charges with which you will be concerned in this case.” The trial court did not actually state that appellant was a convicted felon, and it is likely that few if any jurors understood the court’s reference to the charge of “possession of a firearm while on a first offender status.” This charge was subsequently withdrawn and not referred to again. The decision to give a curative instruction rather than grant a mistrial when a defendant’s character has been impermissibly drawn into issue is within the discretion of the trial court. See, e.g., Williams v. State, 262 Ga. 422 (5) (420 SE2d 301) (1992). Under the limited circumstances of this case, we conclude that the trial court cured its error by ordering the second indictment withdrawn, not allowing it to be referred to again and instructing the jury that it was to consider only the charges in the first indictment. Therefore, the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

4. Lastly, appellant argues that the trial court erred in denying his motion to sever his trial from that of Dennard because if their trials had been severed, Dennard would have provided testimony helpful to appellant in appellant’s trial. See Habersham v. State, 190 Ga. App. 211 (1) (378 SE2d 489) (1989). Appellant’s counsel stated that if severance was granted, Dennard was willing to testify that he alone fired the gun, that there was no common intent or plan to fire the gun, and that Dennard was not aided or abetted by appellant. However, the proffered testimony of Dennard goes only to the charges of murder, felony murder and aggravated assault — all charges of which appellant was acquitted. The testimony was not relevant to the charges of hindering the apprehension of a criminal, carrying a pistol without a license and carrying a firearm at a public gathering of which he was convicted. Accordingly, the denial of appellant’s motion to sever cannot be reversible error.

Decided August 27, 1993.

T. Lee Bishop, Jr., for appellant.

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

       We note that appellant could have avoided this problem if he had been alert and objected as soon as the trial court mentioned two indictments. We hesitate to call this a waiver, however, as we acknowledge that it would have been awkward at best to object while the court was in the process of administering the oath to the jury.


author: Beasley, Presiding Judge.

text:
    A93A1240.
    MINOR v. McDANIEL.
    (435 SE2d 508)
   Beasley, Presiding Judge.

McDaniel purchased a home through an FHA insured mortgage. She avers: she had insufficient funds to pay all of the closing costs; Minor, the real estate agent, loaned the needed funds to her; in consideration she gave him a promissory note and security deed covering the home she had purchased. Minor did not record the security deed until several years after the closing. McDaniel and Minor became embroiled in a dispute over her payment of the note. McDaniel’s mortgage company informed her that the loan was illegal, and she reported it to federal authorities.

Minor subsequently pled guilty to an indictment charging him with violating 18 USC §§ 1001 and 1002 by inducing Minor to falsely certify at the sale closing that the residence would be owned by her free and clear of all liens other than the mortgage, that she would not have outstanding any other unpaid obligations contracted in connection with the mortgage transaction or the purchase of the property except obligations secured by property or collateral owned by her independently of the mortgaged property, and that she had paid all of the costs of closing the loan.

Thereafter Minor sued McDaniel for nonpayment of the note. Despite his guilty plea, he alleged that he had loaned the money to McDaniel for some purpose other than to pay closing costs on the purchase of her home. In reliance upon OCGA § 13-3-45 and Hanley v. Savannah Bank &c. Co., 208 Ga. 585 (68 SE2d 581) (1952), McDaniel moved to dismiss, arguing that the note and underlying consideration were illegal. The court granted the motion as one for summary judgment because of the presentation of evidence outside the pleadings.

On appeal, Minor argues that the consideration for the note was not illegal, but rather that the only illegality was his placement of an encumbrance on the residence through recordation of the security deed, which he did not do until several years after the note was executed. This argument fails. First, Minor pled guilty to the charge that he had induced McDaniel to falsely certify that the residence was free and clear of all liens, but the security deed was a lien on the property prior to its recordation. Minor’s delay in recording it, and thereby concealing it, merely affected its priority over subsequent purchasers and lenders without actual notice of the security deed. See OCGA §§ 44-2-1; 44-2-2; 44-2-3; 44-14-63. Second, the indictment to which Minor pled guilty alleged that he induced McDaniel to certify that she would not have any other outstanding unpaid obligations contracted in connection with the mortgage transaction or purchase of the property except obligations secured by property or collateral owned by her independently of the mortgaged property. Her promissory note to Minor thus constituted a prohibited obligation. Third, the indictment also alleged that Minor had induced McDaniel to falsely state she had paid all closing costs. Thus, his lending of money to her to pay part of the closing costs was legally prohibited.

Decided August 27, 1993.

Lester B. Minor, pro se.

Whiteman & Whiteman, Mary W. Whiteman, for appellee.

Consequently, the promissory note was founded upon an illegal consideration, for which reason public policy renders it unenforceable. “If the consideration is illegal in whole or in part, the whole promise fails.” OCGA § 13-3-45. “ ‘A court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited, nor to the enforcement of anything necessary to complete the accomplishment of an unlawful purpose. If the contract is executed it will be left to stand; if it be executory neither party can enforce it.’ [Cit.] Tf a contract be illegal as against public policy, its invalidity will be a defence while it remains unexecuted. If the illegal contract be in part performed and money has been paid in pursuance of it, no action will lie to recover the money back.’ [Cit.]” Jones v. Faulkner, 101 Ga. App. 547, 548-549 (114 SE2d 542) (1960); see Baily v. Milner, 35 Ga. 330 (1868).

Judgment affirmed.

Cooper and Smith, JJ., concur.