text:
    A91A1538.
    WILCOX v. THE STATE.
    (415 SE2d 23)
   Pope, Judge.

Appellant/defendant Julius Connell Wilcox appeals his conviction for armed robbery. Construing the evidence in the light most favorable to support the jury’s verdict, the evidence shows that defendant entered the Suwanee Swifty store in Fitzgerald, Georgia armed with a butcher knife. He distracted the clerk by asking for a certain brand of cigarettes and when she turned back around, he pointed the knife at her and demanded the money from the cash register. After removing the money from the cash register, he cut the telephone receiver cord and fled the store with the telephone receiver, money, cigarettes and knife in his possession.

A man saw defendant ride a bicycle to an overgrown area behind his house. Suspecting that something illegal was occurring, the man flagged down a police officer who was searching for defendant in the area. The police officer found the defendant in the overgrown area along with cigarettes, clothing, a bicycle, a telephone receiver and a butcher knife. Defendant had in his possession $145 at the time of his arrest. A police officer also found $51 in a tennis shoe in the same area.

After defendant was arrested, a police officer took him to the convenience store to see if the store clerk could identify him as the robber. The clerk was not able to make a positive identification.

1. Defendant argues that the trial court erred in failing to grant his motion in limine and motion to suppress. The defendant sought to exclude any testimony concerning the defendant being shown to the store clerk after his arrest to determine if he was the robber on the ground that it was unduly suggestive and tainted the in-court identification. The store clerk, however, was unable to identify the defendant both at the crime scene and at trial. Therefore, the crime scene confrontation could not have tainted the in-court identification as defendant contends.

2. Defendant contends that the trial court erred in denying his motion for mistrial which he made after the State was allowed to reopen its case and present the testimony of a jailer. The jailer testified that defendant’s former girl friend, who testified for the State at trial, had visited defendant two days before trial. Defendant argues that allowing the jury to learn that defendant was incarcerated two days before his trial created a prejudicial comment upon the character of the defendant. Assuming arguendo that this statement refers to the defendant’s record as he contends, the appellate courts of this state have consistently held that a passing reference to a defendant’s record does not place the defendant’s character in issue. See Johnson v. State, 256 Ga. 604 (2) (351 SE2d 623) (1987); Ogles v. State, 238 Ga. 716 (235 SE2d 384) (1977); Cochran v. State, 177 Ga. App. 471 (3) (339 SE2d 749) (1986); Bell v. State, 162 Ga. App. 527 (1) (292 SE2d 114) (1982).

3. Defendant further alleges that the trial court erred in allowing the State to reopen its case and present the testimony of the jailer because he was not on the State’s witness list. OCGA § 17-7-110 allows a prosecuting attorney to present the testimony of a witness whose name does not appear on the State’s list of witnesses if the State shows that the evidence sought to be introduced is newly discovered evidence which the State was not aware of at the time it presented the list of witnesses to the defendant. The testimony of the jailer was presented to rebut certain testimony elicited from one of the State’s witnesses during cross-examination. The testimony concerned a visit by another witness to defendant two days before trial, well after the witness list was presented to defendant. It was obviously testimony that the State did not expect to present at the time the list of witnesses was presented to defendant. We do not find that the trial court abused its discretion in allowing the State to present the complained of testimony. See Yeomans v. State, 229 Ga. 488 (2) (192 SE2d 362) (1972).

Decided January 15, 1992.

Morris & Webster, J. David Tucker, for appellant.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1542.
    DUNLAP v. THE STATE.
    (414 SE2d 728)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault and appeals from the denial of his motion for new trial. In three enumerations of error, appellant asserts the general grounds.

Viewed in the light most favorable to the verdict, the facts are as follows: As a result of marital difficulties, appellant’s wife left their home and went to stay with the victim, who was one of her co-workers, at his trailer home. The victim and appellant’s wife returned to the trailer one evening to find appellant waiting outside. A heated discussion ensued between the victim and appellant, although no violence occurred. The next morning, appellant again came to the victim’s trailer and asked to see his wife. After a conversation with his wife, appellant apologized to the victim for the night before and left. That evening, appellant returned and again had a conversation with his wife outside the trailer. As appellant’s wife was entering the trailer, appellant called out the victim’s name. The victim came to the door, and appellant reached behind his shirt, pulled out a gun and shot the victim three times. The victim and appellant’s wife testified that the victim had nothing in his hands at the time of the shooting. As a result of the gunshots, the victim lost all use of his legs. Appellant was later arrested and gave a statement to the police in which he admitted shooting the victim when he came to the door and stated that he shot the victim two more times because he thought the victim was going to get a gun. At trial, appellant testified that the victim had threatened him previously; that he shot the victim in self-defense because the victim came charging at him with something in his hand; and that he did not give a complete statement to the police because he was scared at the time.

Decided January 15, 1992.

Lynn Wilson, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

“Since the weight of the testimony and credibility of the witnesses are questions for the trier of fact, this court considers only the sufficiency of the evidence. [Cit.]” Holland v. State, 197 Ga. App. 496, 497 (3) (398 SE2d 810) (1990). “On appeal from a finding of guilty, evidence must be viewed in the light most favorable to the verdict, and the presumption of innocence no longer avails. [Cit.]” Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652) (1990). As to the general grounds, viewing the evidence in the proper light, there was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated assault. Also, “[t]he ‘any evidence’ test is the proper standard to use in reviewing the denial of a motion for a new trial on the general grounds. [Cit.]” Holland, supra at 497. The evidence adduced at trial provided ample evidence to support the conviction, and the trial court did not err in denying the motion for new trial.

Judgment affirmed.

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


author: Judge Arnold Shulman.

text:
    A91A1545.
    WILLIAMS v. THE STATE.
    (414 SE2d 716)
   Judge Arnold Shulman.

The appellant was found guilty of three counts of selling cocaine and was sentenced to 15 years imprisonment on each count, to be served consecutively. He brings this appeal from the denial of his motion for new trial.

1. The appellant contends that his trial counsel rendered ineffective assistance by calling his former parole officer, Michael Haus, to testify as a witness on his behalf and thereby apprising the jury of the fact that he (the appellant) had been convicted of robbery in 1976.

During the trial, the undercover officer who had made each of the cocaine purchases charged in the indictment positively identified the appellant as a party to the transactions. The appellant sought to establish that this witness might have confused him with his brother, who resembled him. At the hearing on the motion for new trial, the appellant’s trial counsel testified that the appellant informed him prior to trial that Haus might be able to provide testimony supporting this defense. Counsel stated that he interviewed Haus, verified that he was in fact familiar with the appellant’s brother, and further verified that he would be able to testify in support of “a very strong argument that [the appellant] kept trying to present that although he did have a criminal record in the past, he had no involvement whatsoever with drugs or alcohol.” Counsel testified that he discussed with the appellant the dangers of calling Haus as a witness and thereby revealing to the jury the existence of the prior robbery conviction, but that the two of them came to the conclusion that his testimony would, on balance, be favorable because “that. . . had occurred fourteen years ago, and . . . [the appellant] had not been in any trouble in the past fourteen years.”

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed based on ineffective assistance of counsel unless “ ‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cits.]” Hosch v. State, 185 Ga. App. 71 (2) (363 SE2d 258) (1987). “In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. [Cit.] Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that [the appellant’s] original representation was inadequate. [Cits.]” (Indention omitted.) Id. at 72.

In Hosch, supra, as in the present case, the claim of ineffective assistance of counsel was predicated on trial tactics which had the effect of revealing to the jury the appellant’s prior criminal record. We held that “[e]ven if trial counsel’s strategy was flawed, it was not sufficient to render his representation ineffective under the law as expressed in the aforementioned cases.” Id. at 72. We hold that the trial court similarly did not abuse its discretion in refusing to grant a new trial based on the appellant’s claim of ineffective assistance of counsel in the present case. Accord Powell v. State, 198 Ga. App. 509 (1) (402 SE2d 108) (1991).

2. In reliance on this court’s decision in Miller v. State, 141 Ga. App. 382 (1) (233 SE2d 460) (1977), the appellant contends that the trial court erred in imposing consecutive sentences on the three convictions. The defendant in Miller had been convicted of three counts of selling illegal beverages. Although each count of the indictment in that case specified the date on which the offense was alleged to have been committed, none contained an averment to the effect that the alleged commission date constituted an essential element of the offense. Noting that the state was not required under such circumstances to prove that the offense had actually been committed on the date specified in the indictment but could have obtained a conviction by proving the commission of the offense at any time within the applicable statute of limitation, this court held that “only one sentence could be imposed, and the [imposition] of . . . consecutive sentences was error.” Id. at 383.

Decided January 15, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Barbara A. Smith, Richard E. Thomas, Assistant District Attorneys, for appellee.

In contrast to the situation in Miller, each count of the indictment in the present case does contain a statement to the effect that the alleged commission date constitutes a material averment. This court’s holding in Miller was predicated on the notion that such an averment is necessary to overcome a plea of double jeopardy to a subsequent charge of committing the same act on a separate date. There is no language in that case suggesting that the trial court is required, without request, to give any special jury instruction on the issue in order to impose consecutive sentences where the indictment does include such an averment.

The jury in the present case was properly instructed on the state’s burden of proving each of the allegations set forth in the indictment beyond a reasonable doubt, and the indictment was present with them in the jury room during their deliberations. We hold that the trial court was fully authorized under the circumstances to impose consecutive sentences on each count. See generally OCGA § 17-10-10; Hambrick v. State, 256 Ga. 148, 149 (3) (344 SE2d 639) (1986).

3. The appellant’s remaining enumerations of error are deemed abandoned under Rule 15 (c) (2) of this court, due to his failure to support them with argument or citation of authority. See Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A1550.
    A91A1551.
    RANDALL & NEDER LUMBER COMPANY, INC. et al. v. RANDALL et al. NEDER et al. v. BOWEN-ROGERS HARDWARE COMPANY, INC. et al.
    (414 SE2d 718)
   Pope, Judge.

Both of these cases stem from the operation of Randall & Neder Lumber Company, Inc. (“Randall & Neder”). While that corporation existed, George Neder was the sole stockholder of the corporation. Both Neder and his wife were, directors of the corporation. Allen Randall was initially the President/Treasurer and Chairman of the Board of Directors. Randall’s spouse, Valeria Randall, was the Secretary/Office Manager for the corporation. The Randalls also served on the corporation’s board of directors. The Randalls resigned from their respective positions in September 1986. Ms. Neder became President of the corporation in December 1986.

Prior to the formation of the subject corporation, Allen Randall was involved in another lumber company named Randall & Lewis Lumber Company (“Randall & Lewis”). At the time Randall & Lewis ceased operations, it was heavily in debt.

Case No. A91A1550

In the complaint filed by appellants/plaintiffs George Neder and Randall & Neder Lumber Company, Inc., the plaintiffs charge that appellees/defendants Allen and Valeria Randall took plaintiffs’ individual and corporate funds and wrongly converted them to their own use. Defendants do not deny that certain funds from the Randall & Neder account were used to pay the debts of Randall & Lewis. They deny any liability to the plaintiffs, however, because they contend those payments were authorized by Neder. Defendants also counterclaimed against Neder seeking sums they claim he had agreed to pay but failed to pay. A jury trial was held in this case and the jury returned a verdict in favor of defendants on the main claim and in favor of Neder on the counterclaim. Plaintiffs filed a motion for new trial which was denied.

Plaintiffs contend the trial court erred in denying their motion for new trial because no credible evidence was introduced by defendants to negate their right to recover, and thus the verdict is contrary to the evidence and law. Randall testified that Neder gave verbal authorization of payments of the debts of Randall & Lewis so Randall & Neder would continue to have use of certain necessary equipment for a sawmill operation, which was formerly used by Randall & Lewis. He acknowledged, however, that approximately one month after the corporation was formed a resolution of the stockholders and the board of directors was passed which provided, inter alia, that Randall & Neder would assume no debts or obligations of Randall & Lewis or personal obligations of Allen Randall or Valeria Randall. The resolution further provided that “no loans shall be made without the written authorization from the principal stockholder, George Neder.” The plaintiffs contend, therefore, that Randall’s testimony is self-contradictory and must be construed strongly against him, leaving no credible evidence to support the jury’s verdict. See Douglas v. Sumner, 213 Ga. 82 (97 SE2d 122) (1957). We do not agree.

“ ‘Even if the contract provides it may not be changed except by writing, parties may subsequently by mutual consent enter into a new agreement at variance with the other. (Cit.)’ [Cit.] The modified agreement ‘need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract.’ [Cit.] ‘(W)hether there has been such a mutual and intended departure so as to make practically a new agreement is generally a question for (the fact finder) to determine.’ [Cit.]” Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 49 (1) (B) (305 SE2d 864) (1983). In this case, there was sufficient evidence for the jury to find the parties had agreed to modify their original agreement. First we note Randall’s testimony that Neder agreed orally to modify the written resolution is not contradictory, but merely explains why certain actions were taken by the parties that were not consistent with the terms of the resolution. Furthermore, not only did Allen Randall testify that Neder had agreed to depart from the terms of the resolution, but Valeria Randall testified that she had Neder’s permission to pay the debts of Randall & Lewis. “This court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts against the plaintiff, and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm.” (Citations and punctuation omitted.) Franklin v. Hennrich, 196 Ga. App. 372, 373-374 (395 SE2d 859) (1990). In this case the jury simply resolved conflicting evidence in favor of the defendants, and we will not disturb their verdict.

Case No. A91A1551

This action was brought by certain creditors of Randall & Neder against George and Joyce Neder seeking judgments against them in the amount owed to the creditors by Randall & Neder and seeking to set aside certain transfers of property and monies by Randall & Neder as impermissible preferences. Specifically, the creditors sought to set aside a conveyance to George Neder on December 10, 1986, in the amount of $10,332.04; a conveyance to Joyce Neder on May 29, 1987 in the amount of $3,500; and a conveyance of two parcels of land containing 51.01 acres and 39.7 acres, respectively, to Joyce Neder on April 22, 1987.

After a jury trial was conducted, the jury found in favor of the plaintiffs and awarded them $21,223.29 plus interest. The defendants moved for a new trial on general grounds, which the trial court denied. On appeal, the defendants argue the trial court erred in denying its motion for new trial because the plaintiffs failed to prove that at the time the transfers were made the corporation was insolvent or that the purpose and intent of the transfers was to prefer themselves over the corporation’s creditors.

1. Officers/directors of corporations may be held personally liable for corporate indebtedness when they make preferential transfers of corporate assets to themselves while the corporation is insolvent. Ware v. Rankin, 97 Ga. App. 837 (3) (104 SE2d 555) (1958). Thus, we must determine whether the corporation was insolvent at the time the transfers were made. In a similar case, the Georgia Supreme Court held the debtor was insolvent “if after the voluntary deed or conveyance, the property left or retained by the debtor is not ample to pay his existing debts.” Chambers v. C & S Nat. Bank, 242 Ga. 498, 501-502 (249 SE2d 214) (1978); accord New England Mut. Life Ins. Co. v. Childs, 185 Ga. 198, 202-203 (194 SE 561) (1937); Federal Land Bank v. Bush, 179 Ga. 627, 628 (176 SE 639) (1934); Drake v. Ward-Truitt Co., 149 Ga. 54, 56 (99 SE 125) (1919). Defendants contend the testimony of their expert, a certified public accountant, that the corporation was solvent at the time of the transfers in question, was sufficient to establish the corporation’s solvency. A review of the transcript reveals that the plaintiffs presented the testimony of certain witnesses showing certain debts of the corporation in the fall of 1986 were never paid by the corporation. Plaintiffs also presented evidence that certain liabilities of the corporation were not included on some of the financial reports on which defendants’ expert based his opinion. In sum, sufficient evidence existed for the jury to determine that at the time of the transfers the corporation did not have sufficient property left to pay its existing debts. Accordingly, the trial court did not err in failing to grant defendants’ motion for directed verdict or motion for new trial on that basis.

2. Defendants further contend insufficient evidence was presented to support the jury’s finding that the defendants intended to prefer themselves over the corporation’s other creditors when making the transfers. Defendants contend the allegation of intent to self-deal at the creditor’s expense is negated by defendants’ evidence that they were not aware that the corporation was insolvent at the time of the transfers and that it was not Joyce Neder’s intent in making the transfers to prefer the defendants over the corporation’s other creditors. Evidence was presented showing the corporation had consistently lost money since it was created and that the defendants were aware of those losses at the time of the transfers. Based on that evidence, the jury could have concluded that the defendants’ decision to transfer the assets out of the corporation was prompted by self-dealing. Construing the evidence in the light most favorable to support the jury’s verdict, as we must, we conclude the trial court did not err by refusing to grant the defendants’ motion for new trial on this basis.

Decided January 15, 1992.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellants.

Callaway, Neville & Brinson, William E. Callaway, Jr., Benjamin P. Brinson, for appellees.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1568.
    MOON v. THE STATE.
    (414 SE2d 721)
   Pope, Judge.

Defendant Eddie Wayne Moon was convicted of the crime of ag - gravated assault and, in a bifurcated proceeding, the crime of possession of a firearm by a convicted felon. Defendant did not deny shooting the victim in the leg with a pistol after the two exchanged angry words. He defended, however, on the ground of self-defense, testifying that he believed the victim was reaching into his pocket which contained a bulge which looked like the handle of a gun.

1. We reject defendant’s argument that the evidence was insufficient to sustain the conviction for aggravated assault. Defendant’s testimony raising the issue of self-defense was refuted by the testimony of the victim and one of the eyewitnesses to the shooting. The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt.

2. Defendant also argues the trial court erred by permitting into evidence two improper references to his character, without his first having placed his character in issue. First, defendant argues the trial court erred in overruling his objection to that portion of the opening statement in which the prosecutor stated the evidence would show that, on the day prior to commencement of the trial, the defendant offered the victim $300 not to testify. The objection raised during the opening statement was not made on the ground that the statement improperly raised his character as an issue but on the ground that defendant was not given notice of such evidence “as required.” During the victim’s testimony, defendant merely renewed the same objection and the trial court again overruled it. Such a statement by the defendant to the victim is not a custodial statement and therefore not discoverable pursuant to OCGA § 17-7-210. See McCoy v. State, 174 Ga. App. 621 (4) (330 SE2d 746) (1985); see also Martin v. State, 179 Ga. App. 551 (5) (347 SE2d 247) (1986). Thus, the statement and testimony were not objectionable on the ground of inadequate notice by the State. We do not believe the statement or testimony improperly raised the issue of defendant’s character because it was in the nature of an admission and was evidence of intent or scheme. Moreover, the defendant may not raise for the first time on appeal an objection not raised at trial. Moore v. State, 176 Ga. App. 251 (1) (335 SE2d 716) (1985).

Second, defendant argues the trial court erred in overruling his objection to certain testimony of the eyewitness. In his opening statement, defendant’s attorney stated the evidence would show defendant was not carrying the pistol he used to shoot the victim but, when he believed the victim was reaching for a gun, defendant reached into a kitchen drawer next to where he was standing and pulled out the pistol and shot it. The eyewitness testified defendant did not retrieve the gun from a drawer but had the pistol on his person. The prosecuting attorney established that the witness had known the defendant for a long time and asked if defendant had a reputation for carrying a gun. The witness answered: “Carrying and shooting, too.” Defendant moved for a mistrial on the ground the question improperly placed his character in issue.

The State argued the testimony did not raise the issue of defendant’s character but merely his reputation for carrying a gun which was relevant to impeach his statement that the gun was retrieved from a drawer. We note, however, that the defendant had not yet testified and therefore the testimony was not offered for impeachment. Defendant did not deny shooting the victim and the only fact in issue in the case was whether defendant had acted in self-defense. The assertion of the defense of justification does not, in and of itself, have the effect of placing the defendant’s character in issue. Cf. Johns v. State, 164 Ga. App. 133 (2) (296 SE2d 638) (1982) (in which this court held the assertion of the defense of entrapment did not have the effect of placing the character of the defendants in issue). The witness’ testimony that defendant not only had a reputation for carrying a gun but also for using it undeniably placed the defendant’s general character in issue. The testimony did not present evidence of particular instances of similar transactions which may, in certain circumstances, be introduced to show motive, intent, scheme or bent of mind. Cf. Anderson v. State, 184 Ga. App. 293 (361 SE2d 270) (1987). The trial court thus erred in denying defendant’s motion or in failing, at least, to instruct the jury to disregard the testimony.

Decided January 15, 1992.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1574.
    HECHEVARRIA v. THE STATE.
    (414 SE2d 723)
   Cooper, Judge.

This appeal arises from appellant’s conviction of possession of marijuana with intent to distribute and criminal use of an article with an altered identification mark.

During a search of appellant’s mobile home, which was executed pursuant to a warrant, the police discovered two plastic bags containing marijuana, a postal scale and a box of plastic bags in appellant’s bedroom. The police also discovered and seized a stereo, videocassette recorder and a television from which the serial numbers had been removed. Appellant lived alone and at trial denied knowledge of the marijuana but admitted owning a postal scale. Appellant testified that his scale was missing and conceded that the scale seized by police might belong to him.

1. (a) Appellant raises the general grounds, urging with respect to the drug conviction that the State failed to rebut his claim that the marijuana was planted by a third person. Appellant testified that on the day of the search, a Jim Stanley came to his house and asked appellant if he had any marijuana for sale. After appellant indicated that he did not have any marijuana, he allowed Stanley to use the rest room, which was located down a hallway leading to appellant’s bedroom. Stanley was in the rest room for no more than five minutes, after which time appellant locked the door, and appellant, a friend and Stanley left the home.

“It is true that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. (Cit.) . . . [Cit.]” (Punctuation omitted.) Hunt v. State, 196 Ga. App. 694 (2) (396 SE2d 802) (1990). However, the record reveals no evidence that Stanley entered appellant’s bedroom, that Stanley brought marijuana into the house or that Stanley had any particular motive for planting contraband in appellant’s home. Stanley’s mere presence does not conclusively establish that he had equal access to the marijuana so as to block a finding of appellant’s possession. Id. at 695. We find that the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) With regard to the second count, appellant also raises the general grounds and maintains that the State failed to establish that the serial numbers had been removed from the stereo and videocassette recorder. However, one of the officers who conducted the search specifically testified that the serial numbers were removed from where they should have been. “The credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury’s finding unless it is insupportable as a matter of law. [Cit.] We will not disturb the jury’s finding in the instant case because we find the evidence adduced at trial sufficient for a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. [Cit.]” (Punctuation omitted.) Brown v. State, 197 Ga. App. 365, 366 (1) (398 SE2d 424) (1990).

2. Appellant enumerates as error the trial court’s failure to declare a mistrial when the State improperly placed his character in issue. Appellant specifically complains of the testimony of an investigating officer who, while explaining how information for the search warrant was obtained, was asked by the prosecutor, “was part of your information based on persons being on the premises?” The officer answered, “Yes sir. Part of the information indicated that there were others on the premises and that they were there for the purpose of purchasing drugs.”

“ ‘If evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant’s character in issue. (Cits.)’ [Cit.]” Baxter v. State, 254 Ga. 538, 547 (16) (331 SE2d 561) (1985). Appellant contends he was harmed by the inference that he was a drug dealer. However, the testimony provided evidence of an intent to distribute which was part and parcel of the crime with which he was charged. See Parks v. State, 254 Ga. 403 (4) (330 SE2d 686) (1985). Hence, the court did not err in refusing to grant a mistrial.

3. Finally, appellant contends the trial court erred in failing to grant his motion for directed verdict on the ground that the allegata and probata did not correspond with respect to Count 2. The indictment charged appellant with unlawful possession of an Emerson television from which the serial number had been removed while the television that was actually discovered in appellant’s residence, without a serial number, was a Sharp television. Appellant contends that the difference in the brand names is a fatal variance. “ ‘A variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. (Cit.)’ [Cit.] Since it does not appear that appellant was misled or prejudiced, it was not error for the trial court to deny appellant’s motion for directed verdict.” Stinson v. State, 197 Ga. App. 687, 689 (3) (399 SE2d 278) (1990).

Decided January 15, 1992.

Frank B. Perry & Associates, Frank B. Perry, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1618.
    RAZETE v. PREFERRED RESEARCH, INC.
    (415 SE2d 25)
   Pope, Judge.

Plaintiff Larry Razete filed suit against defendant Preferred Research, Inc., alleging defendant is liable for its negligence in failing to report fully on a title search it conducted on behalf of plaintiff on a parcel of real property the plaintiff foreclosed upon. A page of the title search report was mistakenly omitted when it was transmitted to plaintiff’s attorney. Because plaintiff was not informed of a lien on the property held by the Internal Revenue Service, plaintiff foreclosed without giving the IRS pre-foreclosure notice as required by law and was required to pay $22,000 to the IRS to obtain a release of the lien after the foreclosure was completed.

Defendant first filed a motion to dismiss on the ground the suit was one for professional malpractice and plaintiff had failed to submit an expert affidavit with his complaint, as required by OCGA § 9-11-9.1. In the first appearance of this case before this court, we reversed, holding that the complaint stated a claim for simple negligence, not professional malpractice. Razete v. Preferred Research, 197 Ga. App. 69 (397 SE2d 489) (1990). Upon remittitur of the case to the trial court, defendant filed a motion for summary judgment, this time arguing plaintiff’s claim is a breach of contract claim and, because no policy of title insurance was actually issued in the case, the plaintiff may not recover. Plaintiff also filed a motion for summary judgment, arguing no genuine issue of material fact exists regarding defendant’s negligent performance of the transmittal of the title search and, therefore, plaintiff is entitled to judgment as a matter of law. The trial court granted defendant’s motion and denied plaintiff’s, and plaintiff again appeals.

Decided January 15, 1992.

Lefkoff, Duncan, Grimes & Dermer, John R. Grimes, for appellant.

James M. Crawford, for appellee.

Plaintiff submitted evidence in the form of his attorney’s affidavit attesting plaintiff retained defendant to conduct a title search on the property and, pursuant to defendant’s usual practice, defendant supplied a report of the search in the form of a commitment for title insurance. Defendant transmitted the commitment to plaintiff’s attorney by telefax but did not transmit a cover sheet indicating the number of pages contained in the transmission and, in fact, that page of the commitment containing a notation about the IRS lien was omitted. Defendant submitted evidence in the form of the affidavit of one of its officers that plaintiff’s attorney ordered a title insurance policy on the property in question. Defendant argues that regardless of the missing page of the commitment form, defendant’s offer to issue a policy of insurance was never accepted and thus plaintiff may not recover from defendant.

We hold the trial court erred in granting defendant’s motion for summary judgment because the complaint alleges only that plaintiff is entitled to damages for defendant’s alleged negligence. See Id. It does not allege breach of contract. Plaintiff’s complaint states a claim in negligence because “one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information. . . .” Robert &c. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983). The trial court did not, however, err in denying plaintiff’s motion for summary judgment because the record shows material issues remain in controversy in the case.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1629.
    SPALDING FORD LINCOLN-MERCURY, INC. v. TURNER BROADCASTING SYSTEMS, INC.
    (415 SE2d 26)
   Pope, Judge.

In February of 1988, Rich/Love Advertising Agency, Inc. (“Rich”) acting on behalf of appellant/defendant Spalding Ford Lincoln-Mercury, Inc. (“Ford”) made arrangements for certain advertísing to run during the months of February and March 1988, on television station WTBS, which is owned by appellee/plaintiff Turner Broadcasting Systems, Inc. (“WTBS”). On February 8, 1988, Rich signed a credit application and media agreement with WTBS on behalf of Ford. It is undisputed that agreement is the only written contract between the parties to this dispute. The contract provided that the advertising would start on the day the contract was signed and that the total contract amount would be $4,000. The pertinent terms and conditions of the contract are set forth below:

“All advertising placed with [WTBS] by the undersigned advertising agency and advertiser shall be governed by the following terms and conditions.

“In consideration for [WTBS] providing television advertising, production services or related services in the future, the advertiser and advertising agency acknowledge and assume full responsibility, jointly and severally, for payment of all advertising and related expenses incurred, ordered and provided on behalf of the advertiser by [WTBS]. All such television advertising and related services provided by [WTBS] shall be due and payable within thirty (30) days from the date of invoice. Interest shall be added to all amounts thirty (30) days or more past due at the rate of one and one-half percent (1-1 lA%) per month, calculated from the date of invoice. Should timely payments not be made, advertiser and advertising agency agree to pay all costs of collection including attorney’s fees of fifteen percent (15%) and court costs if collected by law or through any attorney at law.

“This agreement and the terms and conditions outlined herein, shall govern and control all future services which may be provided by [WTBS], from time to time, for the undersigned advertising agency and advertiser.

“If the agreement is signed by the advertising agency alone, then advertising agency shall be deemed to have executed this agreement both as principal and as authorized agent for any and all advertisers on whose behalf advertising agency may, from time to time, request services be performed by [WTBS].”

WTBS billed Rich for the February and March advertising. Rich in turn billed Ford, who paid Rich. Rich then forwarded payment for the advertising to WTBS.

Approximately six months after the first block of advertising for Ford ran on WTBS, Rich approached WTBS about a second block of advertising for Ford to run from October 1988 through March 1989. At Ford’s request the block of advertising was reduced to run only through January 1989. WTBS billed Rich on a monthly basis for the advertising. Rich then billed Ford for all advertising it had arranged for Ford, including WTBS, on a monthly basis. It is undisputed that Ford timely paid Rich for all advertising. Rich, however, failed to forward Ford’s payments to WTBS.

WTBS sued both Ford and Rich for $21,675, the amount due for the advertising that ran from October 1988 through January 1989. Ford answered and filed a cross-claim for indemnity against Rich. Rich failed to answer the suit and a default judgment was rendered for WTBS against Rich. A jury trial was held on WTBS’s claims against Ford. A jury found for WTBS in the principal amount of $21,675, plus interest and attorney fees. Ford filed a motion for j.n.o.v. or in the alternative, motion for new trial, which the trial court denied. Ford appeals from the judgment and the trial court’s denial of its motion for j.n.o.v.

1. Ford first contends that the evidence does not support the jury’s finding that WTBS relied on the credit of Ford. Essentially, Ford argues that WTBS relied solely on the credit of Rich, making Rich its debtor, and is barred from pursuing Ford. The intention of the parties as to whom is to be bound when the principal is disclosed is a question that is properly submitted to the sound discretion of the jury. Kingsberry Homes v. Findley, 242 Ga. 362, 365 (249 SE2d 51) (1978). Contrary to Ford’s contentions on appeal, and construing the evidence to support the jury’s verdict, as we must on appeal, the record reflects that there was sufficient evidence to support the jury’s finding that WTBS relied upon the credit of both Ford and Rich. Consequently, we find this enumeration of error to be without merit.

2. Ford further contends that the trial court erred in denying its motion for directed verdict on the grounds that WTBS had elected to proceed against Rich, as agent, and was barred to proceed against Ford. Ford seemingly argues that because WTBS obtained a default judgment against Rich, it is now barred from pursuing Ford. It is undisputed that WTBS has been unable to collect that judgment from Rich and the evidence indicates that recovery from that party is unlikely. OCGA § 9-2-4 provides that “[a] plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” The contract language set forth above specifically provides that “the advertiser and the advertising agency acknowledge and assume full responsibility, jointly and severally, for payment of all advertising. ...” WTBS brought suit against both Ford and Rich alleging that the defendants are jointly and severally liable to it. Merely obtaining a default judgment against one party does not constitute an election. In sum, there is simply no evidence to support Ford’s contention that WTBS elected to proceed exclusively against Rich.

3. Ford argues that the contract discussed above expired before the advertising for which WTBS is seeking payment began appearing on WTBS in October 1988. For that reason, Ford contends that the jury’s award of attorney fees and interest pursuant to that contract is improper. The contract does not specify a date on which it will expire. Ford contends that after advertising in the amount of $4,000 had run, the total contract amount stated on the contract, the contract expired. As discussed above, the terms and conditions of that contract stated that “[t]his agreement and the terms and conditions outlined herein, shall govern and control all future services which may be provided by [WTBS], from time to time, for the undersigned agency and advertiser.” There was sufficient evidence presented from which the jury could have properly found that when Rich approached WTBS about running a second block of advertising for Ford, the parties agreed to modify or renew that contract to encompass the second block of advertising. See Turem v. Sinowski & Jones, 195 Ga. App. 829 (1) (395 SE2d 60) (1990). Accordingly, the trial court did not err in failing to set aside the jury’s award to WTBS of attorney fees and interest.

Decided January 15, 1992.

Newton & Howell, John T. Newton, Jr., for appellant.

Schreeder, Wheeler & Flint, J. Christopher Desmond, Lawrence S. Burnat, for appellee.

4. The trial court did not err in failing to instruct the jury on the defense of laches. “The doctrine of laches is an equitable one and has no relevancy to the action here since the rights to be enforced were upon legal grounds, and the statute of limitation had not run. [Cits.]” Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 592 (7) (281 SE2d 332) (1981).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1727.
    AVERY v. WHITWORTH.
    (414 SE2d 725)
   Pope, Judge.

Defendant George S. Avery appeals the trial court’s grant of summary judgment to plaintiff Jim Whitworth on plaintiff’s action to collect the $20,000 unpaid balance on a promissory note. The evidence shows defendant signed a promissory note in the form of a letter addressed to plaintiff stating: “This is your note for $45,000.00, secured individually and by our Company for your security, due February 7, 1984.” The letter was signed: “Your friend, George S. Avery.” It was typed on stationery with the name of defendant’s employer, V & L Manufacturing Co., Inc., printed at the bottom and the words “George Avery, President” printed at the top. Defendant argues plaintiff was not entitled to summary judgment because the letter shows on its face that defendant, in his individual capacity, was a mere surety of the note and that the principal debtor was the corporation. Defendant argues that as a surety he is entitled to discharge pursuant to OCGA § 10-7-22 because certain acts taken by plaintiff allegedly increased his risk.

We affirm the trial court’s grant of summary judgment to plaintiff. Even though the stationery on which the note was typed showed defendant served as president of the corporation, the note itself was signed in an individual and not a representative capacity. Thus, contrary to defendant’s argument, this case is squarely governed by the holding in Southern Oxygen Supply Co. v. de Golian, 230 Ga. 405 (197 SE2d 374) (1973). In Southern Oxygen, the Supreme Court held the promissory note in question did not show the signer executed the note in his representative capacity as president of a corporation even though the address and (approximate) name of the corporation were printed on the document. It is the form of the signature on the note, and not other printed information appearing on the page, that governs the capacity in which the signer executes the note. “ ‘A court may take judicial notice that the signature of an individual on the face of a note, at the bottom on the right, without limiting or descriptive words before or after it, is the universal method of signing a contract to assume a personal obligation. . . .’” Id. at 407, quoting Bostwick Banking Co. v. Arnold, 227 Ga. 18, 22 (178 SE2d 890) (1970). See also Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646 (307 SE2d 121) (1983).

The note in this case named the company which defendant represented but did not show he signed the note in a representative capacity and, thus, the trial court did not err in finding the defendant personally liable for the note. See Blayton v. Ford Motor Credit Co., 118 Ga. App. 517 (164 SE2d 262) (1968). Pursuant to OCGA § 11-3-403 (2) (b), when an instrument names the person represented (in this case, a corporate entity) but does not show that the representative signed in a representative capacity, the signer is personally obligated except as otherwise established by parole evidence between the immediate parties. Even though defendant consistently denied he was individually obligated on the note, he presented no evidence establishing such an agreement between the parties. In fact, plaintiff’s undisputed testimony establishes that the loan was made to defendant, personally, because of the friendship between the parties. Thus, under the facts of this case, plaintiff was entitled to judgment pursuant to OCGA § 11-3-403 (2) (b).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided January 15, 1992.

Hine, Carroll & Niedrach, John E. Niedrach, John F. McClellan, Jr., for appellant.

Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., for appellee.


text:
    A91A1851.
    SCHWAN’S SALES ENTERPRISES, INC. v. MARTIN MECHANICAL CONTRACTORS, INC.
    (414 SE2d 727)
   Pope, Judge.

This appeal arises from a materialman’s lien filed by appellee/ plaintiff Martin Mechanical Contractors, Inc. against the property of appellant/defendant Schwan’s Sales Enterprises, Inc. Defendant hired Mid-Mo Construction Company (“Mid-Mo”) to provide general contracting services for the construction of a depot in Athens. Mid-Mo contracted with plaintiff to provide heating, ventilation, air conditioning and other electrical work for the construction of the depot. Although defendant paid Mid-Mo in full for the construction of the depot, Mid-Mo failed to pay certain subcontractors, including defendant. On January 26, 1987, plaintiff filed the materialman’s lien in question against the depot property of defendant. On June 5, 1987, plaintiff filed suit against defendant and after a jury trial obtained a lien judgment against defendant.

1. The primary issue on appeal is whether the plaintiff timely filed its lien against defendant’s property on January 26, 1987. The parties agree that the lien would only be timely filed if the events occurring on November 3, 1986 constitute work contemplated by plaintiff’s contract with Mid-Mo, since otherwise no work was performed by plaintiff after October 15, 1986. On November 3, 1986, plaintiff received a call from defendant requesting that plaintiff send someone to help make a gas pump operational. Plaintiff sent an electrician to defendant’s property in response to that call. When the electrician arrived, he discovered an employee of the gas company was working on the gas pump. The gas company employee told the electrician that there was a problem with the electrical switch to the pump, which the electrician confirmed. The gas company employee replaced the switch and the gas pump was then operational.

The evidence is not conclusive regarding whether the electrician’s response to defendant’s request for help to make the gas pump operational should be considered work necessary for the completion of plaintiff’s contract with Mid-Mo. As this court has previously held, in such circumstances the matter should properly be submitted to the finder of fact for determination. See Troup Enterprises v. Mitchell, Carrington & Rayfield, 199 Ga. App. 173, 175 (1) (404 SE2d 337) (1991); Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412 (1) (170 SE2d 721) (1969). The trial court properly submitted the question of whether plaintiff had a valid lien against defendant to the jury. Sufficient evidence exists to support the jury’s conclusion that plaintiff’s response to defendant’s request for help to make the gas pump operational constituted the furnishing of labor pursuant to plaintiff’s contract with Mid-Mo. Cf. Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660 (405 SE2d 880) (1991) (in which this court held that the evidence demanded a. conclusion that the materialman’s work was complete on the last day his employees worked on the project and not almost two months later when employees were sent to “check” to make sure a valve had been turned on when the owner did not raise any complaint, suggest the work was incomplete or otherwise request the check).

Decided January 15, 1992.

Fortson, Bentley & Griffin, Robert N. Elkins, for appellant.

Blasingame, Burch, Garrard & Bryant, William S. Cowsert, for appellee.

2. Defendant contends that plaintiff waived its lien rights by executing a lien waiver. The lien waiver relied upon by defendant is clearly invalid and the jury did not err in disregarding that document. Even if the waiver had been valid, it would only be effective to waive lien rights up to the amount billed at the time the waiver was executed, which was approximately 25 percent of the contract price.

3. Defendant also alleges that the trial court erred by failing to charge the jury properly on what is necessary to perfect a mechanic’s lien and what constitutes lienable activity pursuant to OCGA § 44-14-86!. A review of the trial transcript reveals that the trial court adequately charged the jury as to the relevant issues in this case, and the trial court’s failure to include defendant’s requested charges was not error. See generally Salvador v. Coppinger, 198 Ga. App. 386, 388 (401 SE2d 590) (1991).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A2112.
    HALL et al. v. REGAL INSURANCE COMPANY et al.
    (414 SE2d 669)
   Birdsong, Presiding Judge.

This appeal arises as a grant of interlocutory review under the provisions of OCGA § 5-6-34 (b). Appellant/plaintiff Janice Hall was in an automobile collision with defendant Bonita Hodges. Janice Hall and her husband brought suit against Hodges and served Regal Insurance Company who was appellant Janice Hall’s insurer for uninsured/ underinsured motorist coverage. Regal elected to file defensive pleadings in its own name, filed a cross-claim against Bonita Hodges, and then sought to initiate discovery. The trial court granted a protective order preventing Regal from deposing appellants. Thereafter, Regal sought to take a deposition of one of Janice Hall’s treating physicians. Appellants contested this discovery procedure by filing a motion for protective order and a motion to drop Regal as a party to this action; the basis for the action was that Regal was not a party to the case and could not be a party pursuant to OCGA § 33-7-11 since this case involves a question of underinsured motorist coverage rather than uninsured motorist coverage. These motions were denied and appellants enumerate this disposition as error: (1) on the grounds the trial court erroneously concluded that OCGA § 33-7-11 requires such a holding and allows an insurer who is providing “underinsured” coverage the same rights and benefits as an insurer providing “uninsured” coverage; and, (2) because, said ruling is contrary to OCGA §§ 33-7-11 (d) (2); 40-9-32, and 40-9-34. Held:

1. The basic issue before this court is whether an insurer who is providing underinsured coverage can claim all the rights and benefits pursuant to OCGA § 33-7-11 (d), which are normally afforded an insurer providing uninsured coverage. The essence of appellants’ argument is that OCGA § 9-11-26 discovery is limited to parties to a suit, and Regal is not a party as the provisions of OCGA § 33-7-11 (d) pertain only to situations involving an uninsured and not to an under-insured.

In 1980, the Uninsured Motorist Act was amended to change the definition of an “uninsured motor vehicle.” The amended definition provides that in addition to vehicles being covered by no bodily injury and property damage liability insurance, an “uninsured motor vehicle” means a motor vehicle, other than those vehicles excluded by the language of OCGA § 33-7-11 (b) (1) (D), as to which there is bodily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s (injured party’s) insurance policy. OCGA § 33-7-11 (b) (1) (D) (ii). Thus, the term was expanded to include the underinsured motor vehicle situation.

Construing OCGA § 33-7-11 broadly as we are required to do (Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51 (268 SE2d 632)), we find it reflects on its face that the legislature intended OCGA § 33-7-11 (d) to include within its circumscription both uninsured and underinsured motor vehicle situations; and, that Regal had the same rights under OCGA § 33-7-11 (d) as would any insurance company who had filed an answer in its own name in an uninsured motor vehicle suit (see generally Starks v. Robinson, 189 Ga. App. 168 (1) (375 SE2d 86)).

In this regard, we note that OCGA § 33-7-11 (d) (2) makes express reference to “an uninsured motor vehicle” and that term as “used in this Code section” includes an underinsured motor vehicle, as above discussed. OCGA § 33-7-11 (b) (1). The term “uninsured motor vehicle” was not meant to be given one definition for purposes of OCGA § 33-7-11 (d) (2) and a different definition when appearing in other parts of the Code section; such a split interpretation would be absurd. In statutory construction we strive to avoid absurdity. See Mansfield v. Pannell, 261 Ga. 243, 244-245 (404 SE2d 104). In Ford v. Ga. Farm &c. Ins. Co., 191 Ga. App. 735, 736 (382 SE2d 659), appellant/plaintiff was injured when his employer’s vehicle was struck by a vehicle operated by a man named Miller. Appellant brought suit against Miller who had a policy of automobile insurance that provided $25,000 in bodily injury liability coverage thereby giving rise to an underinsured rather than an uninsured tortfeasor situation; appellant also served appellee/defendant, which was appellant’s own insurance company, and appellee/defendant insurer filed an answer in its own name. The court in Ford concluded: “[a]ppellee [insurer] filed an answer in its own name and it thereby became a party to the action.” (Emphasis supplied.) • Id. at 736. Thus, whether the tortfeasor is in effect uninsured or underinsured, once the uninsured motorist carrier is served, the statute gives it certain options among which is “the right to participate directly in the proceedings by filing pleadings in its own name, thereby assuming the status of a party.” Bohannon v. Futrell, 189 Ga. App. 340, 341 (1) (375 SE2d 637); see generally Jenkins and Miller, Ga. Auto. Ins. Law (Rev. ed.), §§ 41-1 and 48-1 at pp. 293, 323. The right to participate directly in the proceedings includes the right to engage in discovery in accordance with the provisions of applicable discovery statutes. See, e.g., Civil Practice Act, Title 9 of OCGA, Chapter 11, Section 5 (OCGA § 9-11-26 et seq.). Appellants’ enumeration of error is meritless.

2. Notwithstanding the above, OCGA § 33-7-11 (d) (2), as amended, provides that “[a] motor vehicle shall not be deemed to be an uninsured motor vehicle within the meaning of this Code section when the owner or operator of such motor vehicle has deposited security, pursuant to Code Section 40-9-32, in the amount of $15,000.00 where only one person was injured or killed, $30,000.00 where more than one, or $10,000.00 for property damage.” Pretermitting whether OCGA § 33-7-11 (d) (2) applies to the provisions of subsection (d) of OCGA § 33-7-11, or only pertains wherever the term “uninsured motor vehicle” appears in the text of the Code section, is the question of whether appellant has been shown to have “deposited security, pursuant to Code Section 40-9-32,” within the meaning of OCGA § 33-7-11 (d) (2) so as to trigger the operation of that subsection.

Decided December 3, 1991

Reconsideration denied January 16, 1992

Hudson & Solomon, James D. Hudson, for appellants.

Dillard, Landers & Bower, Terry A. Dillard, Bryant H. Bower, Jr., Young, Young & Clyatt, F. Thomas Young, Sherry S. Harrell, for appellees.

We conclude that the security requirements of OCGA § 40-9-32 do not apply in this case as the owner or operator of the alleged tortfeasor’s motor vehicle was exempt therefrom by the provisions of OCGA § 40-9-34, as there appears to have been in effect at the time of the “accident” the requisite automobile liability policy. We do not agree with appellant thát being exempt from the deposit of security required by OCGA § 40-9-32 is the equivalent of having “deposited security” for purposes of OCGA § 33-7-11 (d) (2). If the legislature had intended to trigger the provisions of OCGA § 33-7-11 (d) (2) merely because the tortfeasor had in effect at the time of the “accident” minimum liability insurance, it would have been an easy matter for them to have so provided. Cf. Mansfield v. Pannell, 194 Ga. App. 549, 551 (390 SE2d 913); AAA Bonding Co. v. State of Ga., 192 Ga. App. 684, 685 (2) (386 SE2d 50). The record does not reflect that defendant Hodges in fact deposited any security in this case; nor was she required to deposit security under OCGA § 40-9-32, as she appears to have been exempt from that statutory requirement pursuant to OCGA § 40-9-34. Therefore this situation does not fall within the ambit of OCGA § 33-7-11 (d) (2). The second enumeration of error also is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Carley, Presiding Judge.

text:
    A90A1845.
    ROBINSON v. THE STATE.
    (414 SE2d 749)
   Carley, Presiding Judge.

In Robinson v. State, 199 Ga. App. 368 (405 SE2d 101) (1991), we affirmed appellant’s conviction and sentence, finding no reversible error in the trial court’s refusal to give a requested charge on the law of circumstantial evidence. On certiorari, however, the Supreme Court reversed: “We think the better rule than that set out by Horne [v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956)] and Terrell [v. State, 258 Ga. 722, 724 (3) (373 SE2d 751) (1988)] is that where the [S]tate’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991).

Decided January 16, 1992.

Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

Accordingly, our original judgment is vacated, the judgment of the Supreme Court is hereby made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper, Andrews, JJ., and Judge Arnold Shulman concur.


text:
    A91A1527.
    JONES v. BROOKS COUNTY BOARD OF COMMISSIONERS OF ROADS & REVENUES et al.
    (414 SE2d 729)
   Pope, Judge.

I Plaintiff Charlotte B. Jones was employed as acting director of the Brooks County Library by defendant Board of Trustees of the Brooks County Library from March 1, 1983 to August 31, 1988. At no time during her employment did her employer make payments on her behalf to the Teachers Retirement System of Georgia. After termination of employment, plaintiff filed suit alleging the Board of Trustees was required by law to make payments into said retirement system and praying for damages against the Board of Trustees and defendant Brooks County Board of Commissioners for the amount the Board should have paid into the system over the years of her employment. Defendants answered and denied the Brooks County Library was required by law to make retirement fund contributions on plaintiff’s behalf. Plaintiff’s motion for summary judgment was denied and the case was tried before a jury. At the conclusion of plaintiff’s evidence the trial judge directed a verdict in favor of defendant Brooks County Board of Commissioners. The jury returned a verdict for defendant Board of Trustees of the Brooks County Library. Plaintiff appeals.

1. Plaintiff first argues the trial court erred in denying her motion for summary judgment. In her motion, plaintiff argued her employer was required by law to make contributions to the Teachers Retirement System of Georgia. Pursuant to OCGA §§ 47-3-41.1 and 47-3-42, an employer of a teacher is required to make contributions on the teacher’s behalf to the Teachers Retirement System. The definition of “teacher” as used in the Code chapter dealing with the Teachers Retirement System includes “[librarians and clerical personnel employed by regional and county libraries.” OCGA § 47-3-1 (28) (0). Defendants opposed plaintiff’s motion for summary judgment, arguing the entity known as Brooks County Library was not, as a matter of law, a county library. According to defendants, a public library may be established only as provided in OCGA § 20-5-40 (b): by resolution of the governing authority of a county or municipality; by approval of voters in a referendum which a governing authority is required to hold in response to a petition by 35 percent of the voters; or by contractual agreement between the governing authorities of any county or municipality. Defendants submitted the affidavit of the Clerk of Brooks County attesting that the county records from 1935 to September 1, 1988 contained no resolution or act establishing a public library, no written petition containing the names of 35 percent of the voters requesting a referendum on establishing a public library and no contract with another political entity establishing a public library. We note that the current provisions of OCGA § 20-5-40 were enacted in 1984 and at the time plaintiff first became employed by the Brooks County Library said statute merely authorized counties to establish and maintain public libraries but did not specify the manner in which they could be established. See Ga. L. 1935, §§ 1-3, p. 409, as amended by Ga. L. 1937, § 1, p. 715 and Ga. L. 1979, § 1, p. 637. Thus, assuming, without deciding, that Brooks County Library could be shown to be a county library at the time her employment commenced, despite the absence of county resolution, et cetera, plaintiff failed to submit any admissible evidence that the Brooks County Library was, as a matter of law and fact, a county library. Thus, the trial court did not err in denying plaintiff’s motion for summary judgment.

2. At the trial of the case plaintiff submitted evidence that the Brooks County Library was considered by at least one member of the Board of Trustees to be a public library, that the library received funding from the State of Georgia as if it were a public library and documents indicating the Brooks County Superior Court had granted corporate charters to the Brooks County Library as far back as 1881. In her second and third enumerations of error, plaintiff argues the pleadings, pre-trial order and evidence presented at trial raise the issue of whether defendant Board of Trustees was required by law to make contribution to the retirement fund on plaintiff’s behalf and that the trial court thus erred in restricting its instructions to the jury to the issue of whether defendant Board of Trustees breached its contract of employment with plaintiff. However, at the conclusion of the instructions plaintiff announced she had no objection to the jury charge. Thus, plaintiff failed to preserve this issue for appeal.

Decided January 16, 1992.

James W. Lovett, for appellant.

Long & Denton, Allen D. Denton, for appellees.

It is well established that this court will not review errors raised for the first time on appeal. See, e.g., Holland v. State, 197 Ga. App. 496 (1) (398 SE2d 810) (1990). “OCGA § 5-5-24 prohibits a party from complaining of the giving or failing to give jury instructions unless it objects before the jury returns its verdict, except where there has been a substantial error in the charge which was harmful as a matter of law.” Department of Transp. v. Old Nat. Inn, 179 Ga. App. 158, 162 (5) (345 SE2d 853) (1986). Plaintiff stipulated in the pre-trial order that breach of contract was one of the issues to be resolved at trial. By failing to object to the trial court’s failure to charge the jury on the remaining issues, the plaintiff, in essence, waived jury consideration of those other issues. Under the circumstances, the trial court did not commit reversible error by failing to charge the jury on the issue of the statutory duty of defendant Board of Trustees to make contributions to the retirement fund on plaintiff’s behalf.

3. Plaintiff’s remaining enumeration of error, merely stating as a conclusion that the jury based its finding for defendant Board of Trustees on the belief that the county would be required to pay any judgment, raises no ground for reversal.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1578.
    NATIONAL UNION FIRE INSURANCE COMPANY v. SORROW.
    (414 SE2d 731)
   Pope, Judge.

Plaintiff George.T. Sorrow brought suit against defendant Frito Lay, Inc., and its employee James T. Gibson for injuries he allegedly received when he was involved in a collision with a step van owned and operated by Frito Lay and driven by Gibson. Pursuant to OCGA §§ 46-7-12 (e) and 46-7-58 (e), which provide for direct prejudgment actions against liability insurers of motor common carriers and motor contract carriers, respectively, Sorrow also named National Union Fire Insurance Company of Pittsburgh, Pa. (National Union), Frito Lay’s liability insurer, as a party defendant to the action. Both sides filed motions for summary judgment, which the trial court denied on January 17, 1991. This appeal follows our grant of National Union’s application for interlocutory review of that order. Held:

National Union contends the trial court erred in denying its motion for summary judgment because the step van involved in the accident giving rise to this litigation was neither a motor common carrier nor a motor contract carrier as those terms are used in OCGA §§ 46-7-12 and 46-7-58. We agree. “Carrier” is defined in OCGA § 46-1-1 as “a person who undertakes the transporting of goods or passengers for compensation.” (Emphasis supplied.) The definitions of motor contract carrier and motor common carrier contained in Title 46 both pertain to the business of transporting persons or property for hire over the public highways of Georgia. OCGA § 46-1-1 (7) (A) and (B). OCGA § 46-7-2 provides for the regulation of “the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire by motor vehicle on any public highway of this state. (Emphasis supplied.) As to contract carriers, OCGA § 46-7-50 provides in pertinent part that “[t]his article is intended to state the conditions and regulations under which motor carriers for hire, other than common carriers and private carriers, are permitted to operate over the highways of this state.” (Emphasis supplied.) “For hire” is defined as “an activity wherein for compensation a motor vehicle and driver are furnished to a person by another person. . . .” OCGA § 46-1-1 (6).

Turning to facts of this case, the record shows Frito Lay’s step van was used exclusively by Frito Lay to transport its own products; it was never held out for hire to the public and was not used or hired by the public for the transportation of either goods or people. We agree, therefore, that the vehicle involved in the accident in this case was neither a common nor contract carrier as those terms are defined in Title 46 and used in the direct action provisions contained in OCGA §§ 46-7-12 and 46-7-58. “[T]he direct pre-judgment cause of action against an insurer that is created by OCGA § 46-7-12 [and § 46-7-58] contemplates the existence of a cause of action against a ‘motor common carrier’ [or motor contract carrier].” National Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989). No such! cause of action existed in the case at bar, as the vehicle involved in the accident was neither a common carrier nor contract carrier. “It follows that [Sorrow] has no cause of action arising under the ‘Motor Common Carrier’ [or Motor Contract Carrier] article and that [National Union] is not subject to a direct pre-judgment action pursuant! to OCGA § 46-7-12 [or § 46-7-58]. The trial court erroneously denied! [National Union’s] motion for summary judgment.” Id. at 701. Accord! Wolverine Ins. Co. v. Strickland, 116 Ga. App. 62 (156 SE2d 497)1 (1967) (in which this court refused to find the insurer liable because] there was no evidence that the vehicle was being driven as a motor carrier at the time of the injury). See generally Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (3) (360 SE2d 280) (1987).

Decided January 16, 1992.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, Stuart K. Theodore, for appellant.

Kim G. Meyer, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0013.
    YATES v. THE STATE.
    Decided January 16, 1992.

      William R. Folsom, for appellant.
    (414 SE2d 736)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with two counts of criminal damage to property in the first degree, one count of criminal damage to property in the second degree, one count of aggravated assault and one count of possession of a firearm during the commission of a crime. Following a jury trial, defendant was convicted upon each and every count of the indictment and he appealed. Held:

1. Eyewitness testimony established that defendant (and his associates) went on a shooting spree in which shots were fired and hit two houses, one automobile, and one person. The person who was hit testified that he was standing on his front porch when an automobile drove by; that defendant leaned out the passenger side of the automobile and fired a pistol at him. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the crimes of which he was convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Two photographs were admitted into evidence. The photographs illustrate that bullets were fired at and hit the door and window of one of the houses. Defendant contends the photographs were admitted into evidence erroneously because they were not properly identified as depicting one of the houses which defendant damaged. This contention is without merit. A resident of the house testified that the photographs “look like pictures” of the window and door “at the house that I rent from.”

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.


text:
    A92A0084.
    BARRS v. THE STATE.
    (414 SE2d 733)
   McMurray, Presiding Judge.

Defendant Barrs appeals his conviction of the offense of burglary. Held:

1. Defendant enumerates as error the denial of his motion for mistrial on the grounds that his character was improperly brought into evidence by the testimony of police officer Willis that when he saw defendant on a specified date, he had other business with defendant and was already looking for him. “ ‘[T]he State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue. . . .’ [Cit.]” Warren v. State, 197 Ga. App. 23, 24 (2), 25-26 (397 SE2d 484). In the case sub judice, there is no question as to whether defendant placed his character in issue and we are solely concerned with whether the testimony elicited violated this restriction on the State’s actions. Whether statements that impermissibly place defendant’s character in issue are so prejudicial as to warrant a mistrial is generally for the discretion of the trial court which will not be disturbed in the absence of abuse of that discretion. Freese v. State, 196 Ga. App. 761, 762 (1), 763 (396 SE2d 922).

The testimony at issue in the case sub judice, that a police officer had other business with defendant and was looking for him, does not necessarily suggest criminal conduct on the part of defendant. While the trial court recognized that the State was treading close to bringing into evidence the subject of defendant’s character and admonished the prosecutor to avoid such matter, the trial court did not abuse its discretion in denying defendant’s motion for mistrial. Under these circumstances the trial court’s instructions to the jury to disregard the testimony at issue was sufficient to prevent prejudice to defendant. Freese v. State, 196 Ga. App. 761, 762 (1), 763, supra.

2. The second enumeration of error complains of an evidentiary matter to which no timely objection was made at trial. As an appellate court, we may not consider objections to evidence not raised at trial. Riley v. State, 196 Ga. App. 148, 149 (1) (395 SE2d 394).

3. Defendant’s final enumeration of error contends the trial court abused its discretion in admitting into evidence his statement to police when the statement was not voluntary. During the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing, the State presented evidence that defendant was read his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) at least twice before spontaneously giving a statement, expressly waiving those rights, did not appear to be under the influence of drugs or alcohol, and was not coerced in any way.

Decided January 16, 1992.

Starling & Starling, Donald A. Starling, for appellant.

Harry D. Dixon, Jr., District Attorney, John A. Rumker, Assistant District Attorney, for appellee.

Defendant’s argument is predicated entirely upon the absence of any written waiver of the Miranda rights or written copy of defendant’s statement signed by defendant. However, the absence of these items does not alone preclude admission of the evidence concerning defendant’s statement. While a police officer testified that defendant had signed a waiver of Miranda rights form, even if defendant had refused to sign the form such conduct would not have amounted to an invocation of the right to remain silent or the right to counsel. “Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111). There was ample evidence authorizing the trial court to conclude that defendant’s statement had been freely and voluntarily made. The trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld where, as in the case sub judice, they are not clearly erroneous. House v. State, 197 Ga. App. 644, 646 (2) (399 SE2d 262); Gadson v. State, 197 Ga. App. 315 (1), 316 (398 SE2d 409). Furthermore, the fact that defendant’s statement was not reduced to writing does not render it inadmissible. Hayes v. State, 152 Ga. App. 858, 859 (3) (264 SE2d 307).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0170.
    MARTIN v. THE STATE.
    (415 SE2d 33)
   McMurray, Presiding Judge.

Defendant Martin appeals his conviction of the offense of aggravated assault (with a deadly weapon). The sole enumeration of error questions the sufficiency of the evidence to authorize the jury’s verdict. Held:

Defendant was intermittently employed in his mother’s business, Styles by Delores, a hair salon. The victim, Watkins, worked as manager and part-time “massage therapist” for Styles by Delores. There was evidence that defendant was aggressive, short tempered, and jealous of Watkins’ position and authority at the salon.

Decided January 16, 1992.

A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

Shortly prior to the incident at issue, defendant was working at the salon. Watkins reported to defendant’s mother concerning difficulties involving defendant. One report concerned defendant’s refusal to turn over certain business receipts to Watkins and another involved defendant becoming involved in an argument with a client. Defendant’s mother decided to discharge defendant and informed him of this decision.

When defendant arrived at the salon, ostensibly to remove his possessions, he got some of his things before having an unfriendly exchange of words with his mother. Defendant went out to his automobile and then came back into the salon. When defendant came back in, he attacked Watkins and during the struggle that followed defendant reached into his pocket, pulled out a handgun, and shot Watkins, seriously wounding him.

The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the defendant guilty of the offense of aggravated assault (with a deadly weapon) beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Smith v. State, 201 Ga. App. 82, 83 (3) (410 SE2d 202).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0243.
    HOME INSURANCE COMPANY et al. v. CATERPILLAR, INC. et al.
    (414 SE2d 735)
   McMurray, Presiding Judge.

The Home Insurance Company and Fireman’s Fund Insurance Companies, plaintiffs, brought suit against Caterpillar, Inc. (“Caterpillar”) and Carlton Company (“Carlton”) in the State Court of Chat-ham County. They alleged that they insured the personal property of M. C. Anderson Construction Company (“Anderson”); that Anderson purchased a 963 Track-Type Front End Loader from defendant Carlton, an authorized Caterpillar dealer; and that the loader was “designed, manufactured and distributed” by defendant Caterpillar. The plaintiffs also alleged that, while the loader was being used on a construction project, it sustained severe damage when a fire erupted in the engine compartment; that, pursuant to the insurance policy issued by plaintiffs to Anderson, the plaintiffs paid Anderson $90,053.97 for its loss; and that defendants were liable to plaintiffs for that amount.

The complaint was couched in five counts. In each count, plaintiffs sought a recovery based upon a different legal theory, to wit: negligence, breach of express warranties, breach of an implied warranty of merchantability, breach of an implied warranty of fitness for a particular use and breach of contract. Defendants answered the complaint, denying they were liable to plaintiffs. Thereafter, in piecemeal fashion, summary judgment was entered in favor of defendant Caterpillar with respect to each count of the complaint and plaintiffs dismissed their claims against defendant Carlton with prejudice. Plaintiffs appeal from the last order of the state court awarding summary judgment to defendant Caterpillar on the negligence count. Held:

Plaintiffs contend the trial court erred in granting defendant Caterpillar’s motion for summary judgment on the negligence count because a jury question exists as to whether defendant Caterpillar negligently manufactured or designed the loader. In this connection, plaintiffs point to the deposition testimony of their expert, John J. Lentini.

Lentini examined the loader four days after it caught on fire. He determined that the fire probably started in the wiring harness as a result of an inherent defect in the loader, to wit: insulation failure. He also concluded that the location of the wiring harness was well inside the loader and was not within an area that would have been serviceable by the operator of the loader. But he could offer no opinion as to the cause of the defect.

In our view, Lentini’s conclusions establish the existence of an inherent defect in the loader, nothing more. They do not demonstrate that the defect was the result of any negligence on the part of defendant Caterpillar. A defect in a machine can arise for any number of reasons. This is not a case of “clear and palpable” negligence. The mere fact that the loader had an “inherent defect” does not demonstrate negligence on the part of defendant Caterpillar. See generally H. Elton Thompson & Assoc., P.C. v. Williams, 164 Ga. App. 571, 573 (298 SE2d 539) (defects in implementation of erosion control plan not necessarily result of negligence on the part of the architect).

Relying upon Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840 (244 SE2d 905), plaintiffs argue they do not need to demonstrate how the defect occurred. Plaintiffs’ reliance upon Firestone is misplaced. That was a strict liability case, not a negligence case. If we were to apply Firestone in a negligence case, we would be doing away with the need to prove negligence. That we cannot do.

Decided January 16, 1992.

Hudson, Galloway & Vaughan, William T. Hudson, Jr., C. Manson Nelson, Jr., for appellants.

Karsman, Brooks & Callaway, Dana F. Braun, Hunter, Maclean, Exley & Dunn, Therese F. Pindar, Robert S. Glenn, Jr., for appellees.

The record is devoid of evidence supporting plaintiffs’ claim of negligence on the part of defendant Caterpillar. Munna v. Lewis, 181 Ga. App. 860, 863 (2) (354 SE2d 181). It follows that the trial court did not err in granting defendant Caterpillar’s motion for summary judgment.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A1711.
    LEDBETTER v. THE STATE.
    (414 SE2d 737)
   Judge Arnold Shulman.

The appellant, Donna Ledbetter, and Danny Sweat were separately indicted but jointly tried and convicted of two counts of armed robbery and aggravated assault related to the hold-up of two convenience stores. Sweat was also indicted and convicted of two additional counts of armed robbery for the hold-up of two other convenience stores and convicted of four counts of possession of a firearm during the commission of a felony. The appellant was convicted on all counts, and she now appeals from the denial of her motion for new trial.

1. The appellant enumerates as error the failure of the trial court, without request, to charge the jury concerning its authority to convict one defendant and acquit the other. Citing Lanzo v. State, 187 Ga. App. 616 (4) (371 SE2d 119) (1988), she asserts that the jury was unaware that it was authorized to find her not guilty even if returning a conviction against her co-defendant. We'find this contention to be without merit. The trial court specifically charged the jurors that they were to make a determination of guilty or not guilty with respect to each count in the separate indictments “involving each accused” and further instructed that they were to notate their decision as to each of the counts against the appellant on the back of her indictment. The charge as a whole adequately covered the basic principles complained of by the appellant. See George v. State, 260 Ga. 809 (5a) (400 SE2d 911) (1991); Rivers v. State, 178 Ga. App. 310 (1) (342 SE2d 781) (1986).

2. The appellant contends that the trial court erred in refusing to sever her case for trial from that of her co-defendant on the basis that the offenses charged against both defendants did not show a common scheme or plan, that her co-defendant’s unrelated charges tended to confuse the jury, and because she desired to call Sweat as a witness. “ ‘When two or more defendants are charged with identical crimes or with different offenses which are part of a common scheme or plan, they may be jointly tried in the discretion of the trial court provided such a trial does not hinder a fair determination of each defendant’s guilt or innocence. (Cits)’ [Cit.]” Kirby v. State, 174 Ga. App. 58, 59 (1) (329 SE2d 228) (1985). The grant or denial of a motion to sever is within the discretion of the trial court; and absent an abuse of discretion, the denial of a motion to sever will not be reversed. Short v. State, 256 Ga. 165, 168 (4) (345 SE2d 340) (1986). “The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and consequent denial of due process.” Murphy v. State, 246 Ga. 626, 629 (2) (273 SE2d 2) (1980). “A case for an abuse of discretion is made when the appellant shows clear prejudice caused by a failure to properly consider the three elements of severance enumerated in Harrell v. State, 253 Ga. 474 (321 SE2d 739) (1984).” Johnson v. State, 258 Ga. 504, 505 (2) (371 SE2d 651) (1988). In the present case it appears that each of the counts with which the appellant was charged was clearly distinguished from her co-defendant’s unrelated charges in order to avoid confusion by the jury and that these counts were tried on the theory that they constituted a common scheme or plan with her co-defendant. Moreover, her co-defendant’s testimony of which she claims she was erroneously deprived was cumulative of other testimony adduced at trial. Under the circumstances, we conclude that the appellant failed to make a showing of clear prejudice that is required to warrant a severance, with the result that the trial court did not manifestly abuse its discretion in refusing to grant the appellant a separate trial. See Kennedy v. State, 253 Ga. 132, 134 (2) (317 SE2d 822) (1984).

3. The appellant challenges the sufficiency of the evidence. The evidence adduced at trial showed that on August 16, 1990, the Circle K convenience store located in Hog Mountain was robbed by an armed gunman, later identified as Sweat, who left the scene in a silver Pontiac Fiero automobile owned by the appellant which had discernible body damage to it. The appellant was spotted driving the vehicle immediately after the robbery when she swerved to avoid colliding with another vehicle at an intersection approximately 4/10 of a mile from the store. The following day the Party Time Store was robbed at gunpoint by Sweat. Sweat fled from the store, entered the passenger side of the appellant’s vehicle, and shot the store clerk as he chased the car. On August 19, 1990, a police officer who had responded to an aggravated domestic call involving the appellant and Sweat ascertained from the appellant’s daughter that the couple had been involved in the convenience store robberies. Upon searching the defendants’ room, the officer discovered a pouch in the appellant’s purse which contained various denominations of currency and coins and found items taken during the first robbery under the mattress. Moreover, the appellant stated to the officer that “I drove [Sweat] to [the Party Time] store on Killian Road, but I didn’t see him shoot anybody.” The evidence introduced at trial, considered in its totality, was sufficient to enable any rational trier of fact to find the appellant guilty of each of the offenses of which she was convicted beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 17, 1992.

Walter J. Clarke, for appellant.

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

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A2260.
    WHISANANT et al. v. NORTHEAST GEORGIA MEDICAL CENTER, INC.
    (414 SE2d 739)
   Judge Arnold Shulman.

The appellants, Lois Whisanant and her husband, Harold Whisanant, sued the appellee, Northeast Georgia Medical Center, as a result of Lois Whisanant’s injury during a recreational therapy session while a patient at the appellee’s facility. A jury trial resulted in a verdict for the appellee. The appellants have appealed to this Court, contending that the trial court erred in charging the jury on the defense of legal accident.

Lois Whisanant was a patient in the appellee’s drug rehabilitation unit following her adverse reaction to a prescription drug. While there, the appellee’s employee, Deana Eaves, a recreational therapist, engaged the appellant in therapy involving the use of an earth ball, an inflated ball approximately four feet in diameter. According to Eaves’ testimony, the intended use of the ball on that occasion was to permit the appellant to rock gently back and forth on the ball thus providing fun and relaxation to the appellant. This was to be accomplished by means of Eaves and the appellant grasping each other’s hands across the top of the ball and see-sawing back and forth on the ball. However, because of the appellant’s short stature and short fingers, the two were unable to grasp hands; instead, Eaves grasped the appellant’s wrists and they began to rock back and forth on the ball. The appellant testified that her grasp was not as secure as that of Eaves and that on her third descent toward the floor, her wrists slipped from Eaves’ grasp which caused her to fall backward, strike the floor and sustain a skull fracture. Eaves testified that she pulled the appellant up onto the ball first and that the incident occurred when the appellant descended to the floor and somehow failed to achieve firm footing. Still grasping Eaves’ wrists, the appellant began to fall backward, thereby pulling Eaves over the top of the ball. Eaves testified that she voluntarily released the appellant from her grasp in order to avoid falling on top of her. The trial judge included in his instructions to the jury a charge on the defense of legal accident, to which the appellants objected.

The appellants contend that there was no evidence authorizing a finding that the incident was an accident as defined by Georgia law. This court has frequently considered the issue of when and under what circumstances a charge on the defense of legal accident is appropriate. In our extensive opinion in Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983), we noted that unlike some other jurisdictions, Georgia has not abandoned the defense of legal accident. However, we reiterated that it is not a truly separate defense, being “merely ‘elaborative’ of general principles of negligence law.” Id. at 342. We then held that “[t]he defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error.” Id. at 344. In the present case, the appellants offered no evidence to contradict Eaves’ testimony that her intended use of the earth ball and her method of grasping the appellant’s wrists were acceptable and consistent with her training in the use of the ball. The only other witness to the incident who testified at the trial (other than the appellant) gave conflicting statements as to whether or not Eaves was grasping the appellant’s hands or wrists at all times while on the ball, but was unequivocal in his statement that the appellant was already down and off the ball and stepping backward away from it when she lost her footing, stumbled and fell. Considering the alternatives presented by the evidence in a light most favorable to the verdict, the jury was authorized to find not only that Eaves had exercised due care in her therapeutic use of the earth ball with the appellant, but that the appellant for her part also had exercised ordinary care and therefore had not been negligent. “This was not a case in which the alleged injury had to be the proximate result of the negligence of one party or the other. Cf. Chadwick v. Miller [supra]. The fall possibly ‘could have been the result of “an event not proximately caused by negligence but which instead (arose) from an unforeseen or unexplained cause. (Cit.)” (Cit)’ [Cit.]” Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 504 (4) (399 SE2d 476) (1990); Greene v. Wright, 200 Ga. App. 125, 126 (1) (407 SE2d 68) (1991). For these reasons, and in view of the trial court’s comprehensive charge to the jury on the issues of negligence and proximate cause, we conclude that it was not error for the trial court also to charge the jury on the defense of accident.

Decided January 17, 1992.

David D. Blum, for appellants.

Whelchel, Dunlap & Gignilliat, Thomas M. Cole, Madeline S. Wirt, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A92A0123.
    CONKLIN v. ZANT et al.
    Decided January 17, 1992.
    Robert Conklin, pro se.

    (414 SE2d 741)
   McMurray, Presiding Judge.

Plaintiff Conklin is a death row inmate at the Georgia Diagnostic and Classification Center while defendant Zant is the warden of that prison and defendant John Doe is the surety on defendant Zant’s official bond. Plaintiff’s complaint alleges that without his authorization or permission, defendant Zant seized funds from his inmate account. The complaint seeks compensatory and punitive damages for the theft or conversion of plaintiff’s funds. Plaintiff, as pro se, appeals the dismissal of his action wherein the trial court stated that plaintiff’s action was dismissed “pursuant to O.C.G.A. Section 42-2-11 (c) as the Plaintiff has failed to exhaust all administrative remedies available.” Held:

We are not aware of any administrative procedure which affords the relief sought by plaintiff. A plaintiff is not barred from relief by his failure to exhaust administrative remedies where those remedies are inadequate. Wilson v. Ledbetter, 260 Ga. 180, 181 (1c) (390 SE2d 846).

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

Michael J. Bowers, Attorney General, for appellees.