text:
    A94A1488.
    ULTIMA-TRIMBLE, LTD. et al. v. DEPARTMENT OF TRANSPORTATION.
    (448 SE2d 498)
   Beasley, Presiding Judge.

The condemnee appeals from the award of the jury, reduced to judgment, being dissatisfied with the admission of certain evidence and with one of the court’s jury charges. This was the second trial of the land condemnation action, the judgment following the first having been reversed. Dept. of Transp. v. Ultima-Trimble, 204 Ga. App. 309 (418 SE2d 820) (1992). Pretaking matters are the subject in this appeal as well.

1. Condemnee had divided the land into lots for residential development. Lots sold after the taking sold for less than lots sold prior to it. At issue was the cause of the decrease, as related to consequential damages.

Among condemnee’s evidence was that the taking resulted in its having to reduce three lots in a cul-de-sac to two in order to meet zoning requirements, due to the taking. An engineer called as an expert by condemnor testified that the footprint of the three lots could be reconfigured to still constitute three lots and comply with the zoning ordinance. He testified that the additional easement had very little or no significant effect on buildability of the lots. He was asked to explain how setback requirements relate to the easement area and testified that the zoning ordinance allowed building right up to the easement, to explain his plan. Condemnee objected on the grounds that the ordinance itself was the highest and best evidence of what was required and that the witness was not qualified to give a legal opinion interpreting the ordinance. The court overruled the objections.

Because the ordinance is not in the record, we cannot resolve whether the engineer was merely applying the ordinance, as con-demnor argues, or interpreting it. It may make a plain statement about the relation of setbacks to easements, or it may require interpretation which is subject to differing views. In any event, the court instructed the jury that the expert’s plan was merely based on his opinion regarding setback requirements, pointing out that it differed from the plat filed by the county. There is no cause for us to conclude that a lawyer’s expertise was necessary to determine whether the ordinance required a setback from the easement. An explanation of the basis for the engineer’s plan for the property was not inadmissible on the ground that it was based in part on his understanding of the zoning ordinance setback requirement. See Dept. of Transp. v. Brooks, 153 Ga. App. 386, 388 (2) (265 SE2d 610) (1980). The challenger had the burden of showing wherein it was inadmissible. Queen v. Bair, 137 Ga. App. 30, 31 (2) (223 SE2d 8) (1975).

Condemnee does not pursue the overruling of the other objection, so we do not address it.

2. The condemnee enumerates as error a jury charge, on the grounds that there was no evidence to support it and that it constituted an improper comment on the evidence. The charge was that “losses occurring to the property before the actual date of taking are not compensable in direct condemnation actions. Thus, while there is a diminution in value as a result of anticipated condemnation, no compensation may be paid.”

At trial, the condemnee excepted to the charge on the ground that it was a comment on the evidence, whereby the court told the jury that there was a decrease in value before the taking, which is not compensable. It also contended that there was no evidence of pretak-ing decrease due to announcement of the prospective taking.

In the first place, there was evidence of pretaking decrease, including expert testimony of real estate market decline for single family residences and of an adverse impact on market value of the announcement of the DOT project. Thus the charge was adjusted to the evidence. “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. [Cit.]” (Punctuation omitted.) Hicks v. Doe, 206 Ga. App. 596, 598 (426 SE2d 174) (1992).

Decided September 9, 1994.

Peek & Whaley, J. Corbett Peek, Jr., Starkey, Land & Crowley, G. Roger Land, for appellants.

Michael J. Bowers, Attorney General, Dwyer & White, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellee.

Second, we do not view the charge as being a comment on the evidence. It is a quotation of legal principles from Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987). Although the use of the word “where” rather than “while” would have been better so as to be sure not to intimate that there was in fact a diminution, that being a jury question, the context in which the charge was given makes that clear enough. If there was the slightest doubt, the court eliminated it by its emphasizing, soon thereafter, that “anything I did or said during the trial of this case was not intended to and did not intimate, hint or suggest to you which of the parties I thought should prevail in the case.”

No reversible error has been brought to our attention which requires a new trial as a matter of law.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A1012.
    IBRAHIM v. TALLEY & ASSOCIATES, P. C. et al.
    (448 SE2d 707)
   Andrews, Judge.

The trial court granted summary judgment to Talley & Associates, P. C., Jeffrey Talley and Michael Lord in plaintiff/appellant Ibrahim’s suit for abusive litigation. Ibrahim appeals.

In its excellent six-page order, the trial court made the following findings of undisputed fact. In 1989, the Professional Consulting Services of Georgia, Inc. (“PCS”) retained the law firm of Jeffrey Talley & Associates, P. C. (“the law firm”) to represent it in a Gwinnett County action against former PCS employee, Ali Ibrahim. Talley is the principal and owner of the law firm.

In the action, PCS alleged that Ibrahim breached the nonsolicitation, noncompetition and nondisclosure clauses of his employment agreement with it and committed certain business torts against PCS. The original complaint alleged that the agreement which Ibrahim breached was an August 1986 employment agreement, a copy of which was attached to the complaint. Ibrahim counterclaimed alleging intentional infliction of emotional distress and breach of the oral employment contract. The law firm amended the complaint and withdrew the allegations relating to the 1986 employment agreement and alleged the existence and breach of a second agreement, which was executed in May 1987. Although the original 1987 employment contract could not be found, an employment contract which was allegedly similar to the signed 1987 agreement was attached.

Ibrahim contends that the law firm withdrew the original complaint because discovery revealed that the 1986 employment agreement contained his forged signature. The law firm, Talley and Lord maintained that the original complaint was amended when it was discovered that the employment agreement was executed in 1987, after Ibrahim had taken a work hiatus and was re-hired. The law firm, Talley and Lord, claimed that this fact made any 1986 agreement irrelevant.

Ibrahim filed a motion for summary judgment, arguing that: 1) he never executed the 1987 employment agreement; 2) such an agreement would be unenforceable; and 3) there was no basis to support PCS’s tort claims. On October 24, 1990, the trial court granted the motion with respect to PCS’s claims for breach of the noncompetition clause and the nonsolicitation clause on the grounds that the clauses were unenforceable since they did not contain sufficiently specific territorial restrictions. The court denied the remainder of Ibrahim’s motion.

The case proceeded to trial on PCS’s claims for breach of the nondisclosure clause of the employment agreement and for the tort claims. Ibrahim’s counterclaim also was tried. At trial, the court granted Ibrahim’s motion for directed verdict on PCS’s claims for breach of the nondisclosure clause of the employment agreement. The court also granted PCS’s motion for directed verdict on Ibrahim’s claim of forgery. PCS’s claims for conversion and for intentional interference with contractual and business relations went to the jury. Ibrahim’s counterclaim for breach of the oral contract and for intentional infliction of emotional distress also were submitted to the jury.

The jury returned a verdict against PCS on its tort claims and business relations claim. The jury returned a verdict against Ibrahim on his claim for intentional infliction of emotional distress, but in favor of him on his counterclaim for breach of the oral employment contract.

In April 1992, Ibrahim filed the instant action against the law firm and Talley and Lord, individually, alleging that they were liable to him pursuant to OCGA § 51-7-80, the abusive litigation statute. (Ibrahim also sued PCS and its owner, though they are not involved in this appeal.) Ibrahim contended that based upon discovery, Talley, Lord and the law firm knew that the original complaint was based upon a forged document, that the amended complaint was based upon a document that did not exist, and that all of the tort claims which PCS asserted were frivolous. Further, Ibrahim argued that ap-pellees knew that in another superior court case, a similar restrictive covenant was held to be unenforceable. Thus, Ibrahim claimed that the law firm, Talley and Lord acted with malice and bad faith and without substantial justification. Talley, Lord and the law firm asserted that they acted in good faith and that their claims on behalf of PCS were reasonable. They filed a motion for summary judgment, which the court granted.

1. In his first enumeration, Ibrahim contends that the court erred in considering evidence which would have been inadmissible at trial. See generally OCGA § 9-11-56 (e). Specifically, he argues that many of appellees’ statements of undisputed fact were based on hearsay from Talley’s and Lord’s affidavits and that many of the statements set forth opinions and conclusions. He contends that without this inadmissible evidence, there was no competent evidence to support the motion.

This enumeration is without merit. Contrary to Ibrahim’s contentions, the statements were not inadmissible hearsay, but testimony to explain conduct. See generally OCGA § 24-3-2; Lloyd v. Tyson, 195 Ga. App. 48, 49 (2) (392 SE2d 551) (1990); Joiner v. Joiner, 225 Ga. 699 (3) (171 SE2d 297) (1969). Similarly, we find Ibrahim’s contentions regarding the allegedly conclusory nature of the affidavits misplaced.

2. In his second enumeration, Ibrahim argues that the lower court erred in finding that the defendants acted in good faith, without malice and with substantial justification in pursuing the lawsuit. In his third enumeration, Ibrahim argues that the court erred in finding that he had not created a factual issue regarding these issues. Citing OCGA § 51-7-80, Ibrahim argues that a jury issue existed since a jury could have inferred that Talley and Lord fabricated the existence of the 1987 employment contract to avoid the consequences of the allegedly forged 1986 contract. Moreover, Ibrahim contends that Talley, Lord and the law firm tried to destroy his business.

There was evidence that Talley, Lord and the law firm reasonably relied upon PCS’s representations that Ibrahim’s 1987 employment contract was unavailable. Because of this unavailability, PCS provided a form which was believed to be similar to the one which Ibrahim signed. In his affidavit, Talley stated that he had previously represented PCS in employee disputes in which there was a signed employment contract and that he believed it reasonably probable that Ibrahim had executed such an employment agreement in 1987.

Decided August 17, 1994

Reconsideration denied September 12, 1994 —

Gerard J. Lupa, for appellant.

Millkey & Associates, John M. Millkey, Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, for appellees. '

In response to the motion for summary judgment, Ibrahim filed several documents, including his own affidavit and copies of excerpts from the depositions in the Gwinnett County case. In his affidavit, he avowed that he had never signed an employment contract with PCS and that he had produced expert evidence to appellees that the signature on the 1986 contract was a forgery. He also stated that he was told by former employees of PCS that its legal action against him was an effort to put him out of business.

OCGA § 51-7-81 provides that any person who takes an active part in civil proceedings shall be liable for abusive litigation if such person acts with malice and without substantial justification. OCGA § 51-7-80 (5) provides that: “ ‘[mjalice’ means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.”

Here, there was no evidence that Talley, Lord or the law firm conducted the lawsuit with the requisite improper purpose. Assuming, without deciding, that the documents which Ibrahim filed in response to the motion were properly before the court, there was still no evidence that Talley, Lord and the law firm acted with malice and without substantial justification. Though we are mindful that Ibrahim’s motion for summary judgment in the underlying suit was denied, we make our determination here without being bound by that prior determination. See generally Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991); Dills v. Bohannon, 208 Ga. App. 531 (431 SE2d 123) (1993) (in the context of denial of summary judgment in the suit involving OCGA § 9-15-14).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       Defendant/appellee Lord was hired by the law firm in November 1990, after the trial court issued its decision on Ibrahim’s summary judgment motion.


text:
    A94A1224.
    HALL COUNTY BOARD OF TAX ASSESSORS v. PEACHTREE DOORS, INC.
    (448 SE2d 476)
   Andrews, Judge.

Peachtree Doors, Inc. appealed to the Hall County Board of Equalization from the ad valorem tax assessment of the Hall County Board of Tax Assessors, which placed a value of $5,521,110 on machinery and equipment of Peachtree Doors for 1992. The Board of Equalization reduced the valuation by 11 percent. Pursuant to OCGA § 48-5-311 (f) (1), the Board of Tax Assessors sought to appeal the decision of the Board of Equalization to the Hall County Superior Court. Finding that the Board of Tax Assessors failed to comply with the appeals procedures set forth in ÓCGA § 48-5-311 (f) (1), the Superior Court granted Peachtree Doors’ motion for summary judgment and dismissed the appeal. The Board of Tax Assessors appeals from the grant of summary judgment and dismissal of the appeal.

Under OCGA § 48-5-311 (f) (1), “the county board of tax assessors may appeal decisions of the county board of equalization to the superior court of the county in which the property lies. A county board of tax assessors may not appeal a decision of the county board of equalization changing an assessment by 15 percent or less unless the board of tax assessors gives the county governing authority a written notice of its intention to appeal and within ten days of receipt of the notice the county governing authority by majority vote does not prohibit the appeal. In the case of a joint city-county board of tax assessors, such notice shall be given to the city and county governing. authorities, either of which may prohibit the appeal by majority vote within the allowed period of time.”

It is undisputed that the appeal to Superior Court was from a Board of Equalization decision to change the tax assessment by 11 percent and that the Board of Tax Assessors properly notified the Hall County governing authority of its intention to appeal by giving timely written notice to the Hall County Board of Commissioners (County Commissioners). At no time did the County Commissioners take any action by majority vote to prohibit or approve the appeal. The Superior Court concluded that the “majority vote” language of OCGA § 48-5-311 (f) (1) required the County Commissioners to take action by majority vote to approve or prohibit the appeal and, because the County Commissioners took no such action approving the appeal, that the appeal must be dismissed.

OCGA § 48-5-311 (f) (1) does not require a county or city governing authority to vote to approve an appeal by the Board of Tax assessors. The plain meaning of the Code section is that the governing authority be notified of appeals by the Board of Tax Assessors from assessment changes of fifteen percent or less so that, within ten days of receipt of such notice, the governing authority may choose to prohibit the appeal by majority vote. See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981) (where the language of the statute is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, it is the sole evidence of legislative intent and must be construed according to its terms). Because the County Commissioners did not choose to prohibit the appeal by timely majority vote, the Superior Court erred by granting summary judgment in favor of Peachtree Doors and dismissing the appeal.

Decided August 15, 1994

Reconsideration denied September 12, 1994

Stewart, Melvin & House, Frank W. Armstrong III, for appellant.

Haynie & Litchfield, Douglas R. Haynie, Emilie K. Petrovich, for appellee.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1306.
    MARTIN v. THE STATE.
    (448 SE2d 471)
   Andrews, Judge.

Martin was indicted for driving under the influence of methamphetamine and amphetamine and for violations of the Georgia Controlled Substances Act for possession of methamphetamine and amphetamine. A jury found him not guilty of the DUI and possession of amphetamine charges and guilty of possession of methamphetamine. He appeals from the judgment entered on the conviction.

While driving on Georgia Highway 400 on the morning of November 20, 1992, Martin’s vehicle ran into the rear of a truck as both vehicles were traveling south in excess of 50 mph. Both vehicles stopped at the scene and, shortly thereafter, a police officer arrived to investigate the accident. As a result of the investigation, the officer arrested Martin for DUI, advised him of implied consent rights, and Martin consented to giving blood and urine samples. Martin’s urine sample was analyzed by the State Crime Lab and tested positive for the presence of methamphetamine and amphetamine.

1. Martin claims the trial court erred by failing to grant his motion to suppress the test results on the urine sample obtained after his arrest because: (1) there was no probable cause to arrest him for DUI; (2) the arresting officer was not authorized to invoke the implied consent to chemical test procedures of OCGA § 40-5-55 because the officer did not have reasonable grounds to believe he was driving under the influence of drugs or alcohol in violation of OCGA § 40-6-391; and (3) the officer did not properly advise him of his implied consent rights.

The officer’s investigation revealed that at about 8:00 a.m. as a truck was traveling south at about 50 mph, Martin’s vehicle approached the truck from the rear traveling about 55 mph and struck the rear of the truck. During his investigation, the officer asked Martin on two occasions how the accident occurred and Martin replied on both occasions that he did not know. The officer observed that Martin was wearing dark sunglasses although the day was cloudy and overcast. Martin removed his sunglasses at the officer’s request and the officer observed that Martin’s eyes were dilated and remained dilated in the daylight. Martin displayed no other physical manifestations that he was under the influence of drugs or alcohol. Based primarily on Martin’s inability to explain how the accident occurred and his dilated eyes, the officer placed Martin under arrest for DUI and informed him of his implied consent rights.

Under OCGA § 40-5-55 (a), “any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his blood, breath, or urine or other bodily substances, for the purpose of determining the alcoholic or drug content of his blood, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391. . . . The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391.” (Emphasis supplied.) Since Martin was arrested at the scene for driving under the influence, if there was probable cause for the arrest, the officer clearly had “reasonable grounds” upon which to invoke the implied consent procedure. Davis v. State, 187 Ga. App. 517, 518-519 (370 SE2d 779) (1988); Napier v. State, 184 Ga. App. 770, 771 (362 SE2d 501) (1987). “A warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense.” (Citations and punctuation omitted.) Hall v. State, 200 Ga. App. 585, 586 (409 SE2d 221) (1991).

Here, after Martin agreed to remove his sunglasses, the officer observed that his eyes remained dilated, one of the physical manifestations that officers are trained to observe as evidence that a driver is under the influence of drugs or alcohol. See Lance v. State, 191 Ga. App. 701, 704 (382 SE2d 726) (1989) (methamphetamine); Grier v. State, 173 Ga. App. 739 (327 SE2d 849) (1985) (alcohol). The circumstances of the unusual accident, combined with Martin’s inability to give the officer any explanation as to how or why he drove his vehicle into the rear of the truck, provided additional evidence that he was driving under the influence. “By considering all the facts available to him and weighing the reasonableness and probabilities of the circumstances, the officer had the requisite probable cause to arrest [Martin for driving under the influence].” Hall, supra at 587; Griggs v. State, 167 Ga. App. 581, 582 (307 SE2d 75) (1983).

As to the claim that the officer did not properly advise him of his implied consent rights, Martin argues on appeal that the officer advised him that he had the right to an additional chemical “test” of his own choosing and under OCGA § 40-6-392 (a) (3) he should have been advised that he had the right to an additional “test or tests” of his own choosing. Martin did not request any independent testing. Since this ground was not raised in support of the motion to suppress, nor was it ruled on by the trial court, it provides no basis for appellate review. Holden v. State, 202 Ga. App. 558, 562 (414 SE2d 910) (1992). In any event, although not a verbatim recitation of the language of the statute, Martin was sufficiently advised of his right to independent testing of the various bodily substances. Howard v. Cofer, 150 Ga. App. 579, 580 (258 SE2d 195) (1979).

2. Martin claims the trial court erred in not providing him with copies of the analytical methods approved by the GBI’s Division of Forensic Sciences for the crime lab; that the State failed to prove the chemical testing of his urine was done in compliance with the methods approved by the Division of Forensic Sciences; and the State failed to prove that Dr. McCurdy, who performed the analysis, was licensed to do so by the Division of Forensic Sciences.

As to Martin’s claim that the trial court erred by not providing him with copies of the methods approved by the Division of Forensic Sciences, this contention was not supported by argument or citation of authority in the appellant’s brief and is deemed abandoned. Court of Appeals Rule 15 (c) (2).

There was ample evidence that the chemical testing was done in compliance with methods approved by the Division of Forensic Sciences and Dr. McCurdy testified that he possessed a valid permit to perform the analysis issued by the Division of Forensic Sciences. See OCGA § 40-6-392 (a) (1). There is no merit to these enumerations of error.

3. Martin contends the trial court erroneously overruled his objections to testimony given by an unlicensed crime lab technician, and to testimony from Dr. McCurdy based on work performed by the technician.

Pursuant to OCGA § 40-6-392 (a) (1), “[c]hemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation . .. and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” The State presented evidence that the crime lab conducted an initial screening test on Martin’s urine sample, referred to as the urine EMIT test, which indicated the “presumptive presence” of an amphetamine-like substance. After the positive screening test, additional testing was done using a gas chromatograph/mass spectrometer which confirmed the presence of methamphetamine and amphetamine.

The State presented testimony from a crime lab technician involved in the initial screening test. It is undisputed that the technician did not possess a permit issued by the Division of Forensic Sciences to conduct chemical analysis pursuant to OCGA § 40-6-392. The technician did not offer an opinion with respect to chemical analysis, or interpret any testing, nor did she make any report as to the results of testing. Apparently, the State offered the testimony to lay a foundation for admission of test results in response to objections raised by the defense. The technician described her performance of certain non-discretionary, non-technical, mechanical tasks, done in accordance with crime lab procedures, to initiate the urine EMIT test which was performed by a machine. The only task performed by the technician which arguably involved some judgment on her part was checking the pH level of the tested sample but there was testimony that this task was subject to review by her supervisor and that any modification of the pH level of a sample was done by her supervisor. The technician also testified that Dr. McCurdy insured that the machine was properly operating and that she gave the test data generated by the machine to others for interpretation and reporting on the results of the test. Dr. McCurdy testified that the technician worked under his supervision and that he interpreted the data produced by the urine EMIT test.

Based on “presumptive positive” findings in the urine EMIT test for the presence of an amphetamine-like substance, Dr. McCurdy testified that he personally conducted additional testing with the gas chromatograph/mass spectrometer that confirmed the presence of methamphetamine and amphetamine in Martin’s urine sample. He also testified that it was possible the presence of amphetamine may have resulted, not from Martin’s ingestion of that substance, but as the result of the body’s metabolic processes after Martin ingested methamphetamine.

The gravamen of Martin’s objections to the testimony of the technician and Dr. McCurdy was that the technician, who held no permit to perform chemical analysis, actually performed or partially performed the urine EMIT test. He argues that since the technician was without the permit required by OCGA § 40-6-392 (a) (1), the urine EMIT test was invalid and because the testing performed by Dr. McCurdy was at least partially based on initial testing performed by the technician, the later testing was also invalid and all testimony as to testing should have been excluded.

We do not agree with Martin’s contention that the technician performed or partly performed the chemical analysis of the urine sample within the meaning of OCGA § 40-6-392. It was not necessary for the technician to possess the permit required by OCGA § 40-6-392 (a) (1) in order to perform the type of tasks to which she testified. The trial court did not err in overruling Martin’s objections on this ground and correctly concluded that the duties of the technician, done in accordance with crime lab procedures and under the supervision of Dr. McCurdy, did not constitute actual performance of the chemical analysis.

4. Martin claims the trial court erroneously allowed a State’s witness to testify after the witness was added to the State’s witness list on the morning the trial commenced. On the morning of the first day of trial, Monday, August 16, just prior to commencement of the trial, the State served Martin with an updated witness list adding an additional witness, the crime lab technician. Well prior to trial, the State had previously complied with Martin’s demand for a list of the State’s witnesses. In a hearing before the trial commenced, the prosecuting attorney stated that, while interviewing Dr. McCurdy on Friday afternoon, August 13, in preparation for trial, he first became aware that there was a lab technician who performed certain duties relating to the urine EMIT test. He stated that, although he did not believe it would be necessary to call the technician as a witness, he added her out of an abundance of caution and was unable to serve defense counsel with the updated list until Monday morning prior to trial.

The trial court initially denied defense counsel’s motion for a continuance, then granted defense counsel an opportunity to contact the technician prior to the start of the trial. After a recess, the prosecuting attorney announced to the trial court that defense counsel had spoken with the technician and that he was still uncertain as to whether any issue affecting the admissibility of the test results might necessitate testimony from the technician. The trial court asked for defense counsel’s response. Defense counsel replied: “Judge, I’m ready to go as long as — obviously, I don’t have [the technician] under subpoena now, but if I can be sure that if I need her I can get her, I’m ready to go.” The trial court stated that the trial could be delayed to let defense counsel subpoena the technician and further stated: “[A]nd if it takes all week, we can wait for [the technician] to get here. We can try another case in the middle. . . . Are y’all ready to strike a jury?” Defense counsel responded that he was ready to proceed.

The record demonstrates that after defense counsel conferred with the technician, he waived the claimed error. Rather than supporting a claim of unfair surprise, the record shows that defense counsel apparently concluded the added witness was favorable to the defense; that the defense desired to have the witness available to testify; and that defense counsel announced he was ready to proceed with the trial. Martin’s claim on appeal that allowing the added witness to testify was reversible error under Bentley v. State, 210 Ga. App. 862 (438 SE2d 110) (1993) is patently frivolous.

5. Lastly, Martin argues that the trial court erred in allowing Dr. McCurdy to testify that he performed a second analysis of the urine sample on the gas chromatograph/mass spectrometer and obtained the exact same results as the first such analysis. Martin objected on the basis that he filed a timely demand for written scientific reports pursuant to OCGA § 17-7-211 and the State did not provide him with a written report of the results of the second analysis.

In compliance with OCGA § 17-7-211, the State provided Martin a copy of the written report done on the first analysis performed by Dr. McCurdy. Dr. McCurdy testified that to double-check the first analysis, he performed a second analysis. He orally informed the prosecutor of the second analysis and the results but did not do another written report. The State provided Martin with the raw data generated by the second analysis, even though it was not a scientific report containing findings or opinions. See Roberts v. State, 196 Ga. App. 450 (396 SE2d 81) (1990).

“OCGA § 17-7-211 applies to scientific reports in writing and not oral reports of experts relaying the results of tests.” (Citations and punctuation omitted.) Herndon v. State, 187 Ga. App. 77 (369 SE2d 264) (1988). Since no written report containing findings or opinions was made on the second analysis, there was no violation of OCGA § 17-7-211 and the trial court correctly overruled the objection to Dr. McCurdy’s testimony. Id.; Beck v. State, 196 Ga. App. 269 (396 SE2d 59) (1990).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Decided August 15, 1994

Reconsideration denied September 12, 1994 —

Banks & Stubbs, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.

       Although Martin did not initially raise the probable cause issue in his motion to suppress, the trial court concluded it was adequately raised at the hearing on the motion. The State does not claim the issue was not properly raised in the written motion. See State v. Armstrong, 203 Ga. App. 159, 160 (416 SE2d 537) (1992).


text:
    A94A1364.
    SEARCY v. THE STATE.
    (448 SE2d 468)
   Andrews, Judge.

Searcy appeals from his conviction by a jury for the offense of rape.

The victim testified that she went with Searcy and his brother “to get some cocaine” but, instead, they both beat and raped her. A physician who examined the victim the night of the attack testified that she had injuries consistent with her description of the beating. Searcy’s sister-in-law testified that on the night in issue Searcy came to her residence and told her he was running from the police because he and his brother had beaten the victim, made her perform oral sex, and had intercourse with her. Searcy and his brother testified that the victim offered to have sex with them if they would get her some cocaine and that, after they had consensual sex with her, she became upset when she discovered they had no cocaine and no money. They denied beating the victim. The defense also presented testimony from a witness who said she saw and heard Searcy and his brother and the victim enter the house where the victim testified the rape occurred and that all three of them appeared to be “laughing, carrying on.”

1. Searcy claims the trial court erred in admitting, over his objection, hearsay testimony from his sister-in-law that he told her he was running from the police and needed to speak to his brother to find out what he was going to say. The witness was properly allowed to testify as to the statements made to her by the defendant as an exception to the hearsay rule. Moore v. State, 240 Ga. 210, 212 (240 SE2d 68) (1977); Hardeman v. State, 180 Ga. App. 632, 633-634 (349 SE2d 839) (1986).

2. There was no error in the admission of photographs of the scene of the rape taken the morning after the attack. There was testimony that they fairly and accurately depicted the scene and we find , no abuse of discretion in their admission. Seats v. State, 210 Ga. App. 74, 76 (435 SE2d 286) (1993). Moreover, defense counsel’s objection to the photographs made subsequent to their admission and after he had cross-examined the witness with respect to the photographs was untimely. Trenor v. State, 252 Ga. 264, 266 (313 SE2d 482) (1984).

3. Searcy contends the trial court erred in refusing to allow him to impeach a witness. After the State called the defendant’s sister-in-law as a witness and rested its case, the defense also called the sister-, in-law as a witness. Defense counsel asked her if she had made any statements concerning the case. She testified that she had been asked if the victim was “capable of beating herself” and that she responded, “I never had saw her beat herself.” Defense counsel then called the defendant’s sister and attempted to elicit testimony from her to the effect that the sister-in-law had previously said that the victim did beat herself. The State objected that defense counsel was improperly attempting to impeach the witness. The trial court sustained the objection.

As provided by OCGA § 24-9-83: “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.” The alleged contradictory statement of the witness may not be proved until a foundation is laid to satisfy the statutory requirements necessary to give the witness an opportunity to explain or deny the prior contradictory statement. Horne v. State, 204 Ga. App. 81, 82 (418 SE2d 441) (1992); Ranger v. State, 249 Ga. 315, 318 (290 SE2d 63) (1982). Since the statutory requirement had not been complied with, and the witness had not been afforded an opportunity to explain or deny the statement before it was offered to impeach her, the trial court did not err in sustaining the State’s objection.

4. During her direct examination by the State, the defendant’s sister-in-law testified that Searcy came to her residence the night of the alleged rape and asked her if she would have sex with him and she refused. The defense made no objection and on cross-examination elicited the same testimony from the sister-in-law. On appeal, Searcy argues that this testimony improperly placed his character in issue and requires reversal of the conviction.

It is unclear whether or not this testimony placed the defendant’s character in issue under the circumstances. See Waugh v. State, 263 Ga. 691, 692-693 (437 SE2d 297) (1993). Even if it did, since defense counsel failed to object to it and later elicited the same testimony on cross-examination, there is no merit to this enumeration. Heard v. State, 204 Ga. App. 757, 759 (420 SE2d 639) (1992); Phillips v. State, 238 Ga. 616, 617 (234 SE2d 527) (1977).

5. Searcy claims the trial court erred in permitting the jury to remain present during a defense motion for a directed verdict. After the State concluded its case, and while the jury was out of the courtroom, defense counsel stated: “I need to make an in camera motion prior to the proceedings commencing ... [m]ake a motion for directed verdict.” The trial court responded, “Oh, sure.” The record then reflects that the proceedings were interrupted as the jury was brought back into the courtroom from a recess taken at the end of the State’s case. The trial court continued: “All right [defense counsel]. You can proceed.” Without further comment, defense counsel stated: “Your Honor, I’d like to make a motion for a directed verdict of acquittal on the general grounds of insufficiency of the evidence” and the trial court responded, “I’ll deny your motion.”

Citing Poole v. State, 100 Ga. App. 380, 383-384 (111 SE2d 265) (1959), Searcy contends that allowing the jury to remain during the motion was reversible error. In Poole the court stated: “Although merely ruling on a point of law raised by the parties does not constitute an expression of opinion of the trial court under [OCGA § 9-10-7] even though he must refer to testimony in order to make his ruling intelligible [cit.] [,] nevertheless, it is very possible that the jury, being laymen, might consider the fact that the court refused to direct a verdict for one of the parties as an implication that he was of the opinion that party should not prevail. In such a case it is not necessary for the movant to show that the court’s error in refusing to grant the motion to remove the jury actually entered into and influenced their verdict, but it is sufficient to show that the ruling would have been likely to produce that effect in order for it to constitute an abuse of discretion on the part of the trial court. Such a situation appears as to a defendant where, prior to making a motion for a directed verdict, he requests that the jury be withdrawn, where such request is refused, the motion is subsequently denied, and the court’s judgment necessarily informs the jury that the adverse party has made out a prima facie case sufficient to sustain a conviction.” Id. at 384. In Poole, the defendant made the motion for a directed verdict after the State rested its case and, thereafter, the defendant rested and offered no evidence. Id. at 384. The defendant advised the trial court of the motion, asked that the jury be retired, and the trial court refused to send the jury out. Id. at 383. Although Poole found the refusal to send the jury out for the motion was erroneous under the circumstances, the error was found harmless in light of the overwhelming evidence of guilt. Id. at 384-385.

Poole does not require a reversal in this case. First, it does not appear that defense counsel was required by the trial court to make the motion in the presence of the jury. Rather, the record shows that, while the jury was out of the courtroom, defense counsel informed the trial court he desired to make a motion for directed verdict, in camera, and the trial court indicated he could proceed in the absence of the jury. Immediately thereafter, the proceedings were interrupted when the jury was brought back into the courtroom from a ten minute recess that commenced after the State rested. After the jury returned, it appears the trial court did no more than oifer defense counsel the opportunity to proceed in the jury’s presence, without requiring him to do so. At no point did defense counsel make a request that the trial court remove the jury from the courtroom. Absent such a request, and a refusal by the trial court to exclude the jury, there is no cause for reversal. Clark v. State, 173 Ga. App. 579, 580 (327 SE2d 549) (1985); Poole, supra at 383-385. Second, there was no discussion of the issues in the course of the present motion. The motion was simply made and denied without elaboration. Even if the trial court had refused a request to exclude the jury during the motion, no abuse of discretion justifying reversal was shown. It was unlikely that hearing the motion and its denial would have implied to the jury that the trial court believed the defendant was guilty and highly probable that it did not influence the jury’s verdict. Poole, supra at 384; Johnson v. State, 238 Ga. 59, 60-62 (230 SE2d 869) (1976); see Clark, supra at 580.

Decided August 15, 1994

Reconsideration denied September 12, 1994.

Adams & Adams, W. Allen Adams, Jr., for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Mark M. Irvin, As sistant District Attorney, for appellee.

6. Searcy contends the trial court erred in failing to give a charge on direct and circumstantial evidence. Since the State’s case was based on both direct and circumstantial evidence, Searcy was entitled to a charge on circumstantial evidence, if requested. Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991). Although Searcy contends in his appellate brief that he requested a charge on circumstantial evidence, this assertion is not supported by any citation to the record and we find nothing in the record to indicate that such a request was made. In the absence of a request to charge, we find no error. Barner v. State, 263 Ga. 365, 366 (434 SE2d 484) (1993). No request was made for a charge defining direct evidence. In the absence of any such request, the failure to so charge was not error. Anthony v. State, 112 Ga. App. 444, 445 (145 SE2d 657) (1965).

7. There is no merit to Searcy’s contention that the State introduced irrelevant and prejudicial evidence which rendered it impossible to determine the sufficiency of the evidence on appeal. See Divisions 1, 2 and 4, supra. The evidence was sufficient for a rational trier of fact to find Searcy guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1457.
    MIAMI VALLEY FRUIT FARM, INC. et al. v. SOUTHERN ORCHARD SUPPLY COMPANY.
    (448 SE2d 482)
   Andrews, Judge.

Southern Orchard Supply Company was granted an interlocutory injunction restraining Miami Valley Fruit Farm, Inc. and W. H. Davidson, Jr., from interfering with Southern Orchard’s performance under an oral agreement between the parties for Southern Orchard to cultivate and harvest the peach crop on 295 acres of land owned by Miami Valley and Davidson. The appeal by Miami Valley and Davidson from the trial court’s order granting the interlocutory injunction was filed in the Supreme Court, which transferred the case to this court pursuant to an order finding that “any equitable relief is ancillary to the underlying issue of enforceability of the oral contract. . . . See Pittman v. Harbin Clinic, 263 Ga. 66 [428 SE2d 328] (1993).”

Evidence presented at the interlocutory injunction hearing showed that the parties entered into an oral agreement whereby Miami Valley and Davidson, who owned the 295 acres of land at issue, purchased the subject peach trees and Southern Orchard entered upon the land for the purpose of planting, cultivating and harvesting the peach trees. Under the agreement, which has been in effect on the 295 acres at issue since the late 1970’s, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley and Davidson informed Southern Orchard that they were terminating the oral agreement and that Southern Orchard would not be allowed entry upon the land for the cultivation and harvest of the 1994 peach crop. Southern Orchard brought this action seeking injunctive relief and contending that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities pursuant to the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees. There was evidence showing that, after a peach tree orchard is planted, expenses must be incurred to cultivate the trees for a period of years before they mature enough to bear fruit and begin to produce profitable, full crops. Thereafter, the trees have an “economic life” for a period of years during which they continue to produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. There was also evidence that the “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques.

Testimony showed that the trees at issue were mature trees, producing profitable crops, with years of remaining “economic life.” Southern Orchard contends that the agreement for the “economic life” of the trees was necessary in order to provide for recoupment of its expenses and that Miami Valley and Davidson breached the agreement by terminating it while the trees continued to produce profitable crops. Miami Valley and Davidson contend that there was no agreement between the parties for any specific duration of the contract; that they considered the agreement to run from year-to-year; and that, in any event, the “economic life” of a peach tree could not provide the agreement with a definite term since it cannot be determined with any degree of certainty. Accordingly, they claim they had the right to terminate the agreement.

In its order granting the interlocutory injunction, the trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees; that the oral contract was not barred by the Statute of Frauds because of Southern Orchard’s performance under the agreement for a number of years; and that, because Southern Orchard had no adequate remedy at law for the breach of the agreement, it was appropriate to grant injunctive relief restraining Miami Valley and Davidson from interfering with Southern Orchard’s performance of the agreement for the 1994 peach crop.

On appeal, Miami Valley and Davidson argue that the trial court erred by granting the interlocutory injunction because the agreement was unenforceable for lack of any definite duration and that, in the absence of any agreement as to duration, part performance by Southern Orchard was not sufficient to render the agreement enforceable for the uncertain duration of the “economic life” of the peach trees.

“A trial court can [exercise its discretion to] grant an interlocutory injunction to preserve the status quo but cannot make a final determination of the issues at the interlocutory hearing unless there is a consolidated hearing as authorized by OCGA § 9-11-65 (a) (2). In this case, the trial court did not order the hearing on the interlocutory injunction consolidated with the trial of the action on the permanent injunction.” (Citations and punctuation omitted.) Ga. Canoeing Assn. v. Henry, 263 Ga. 77 (428 SE2d 336) (1993). At such a hearing, the trial court “should determine questions of evidence only to the extent necessary to decide whether interlocutory relief should be granted. [F]inding[s] of fact made in the trial court’s order [are] not final and [are] not conclusive between the parties on the final trial.” (Citation and punctuation omitted.) McGregor v. Town of Fort Oglethorpe, 236 Ga. 711, 713 (225 SE2d 238) (1976). “[An appellate] court will not disturb [the trial court’s] discretion [in granting an interlocutory injunction] unless it is abused or there is no evidence to support the ruling. [Cit.]” Ga. Dept. of Agriculture v. Ga. Crown Distrib. Co., 262 Ga. 761 (425 SE2d 876) (1993); OCGA § 9-5-8.

Although the trial court did not characterize the nature of the relationship between the parties, there was evidence that it resembled that of a landlord and cropper. See OCGA § 44-7-100. “The relation of landlord and cropper is really the relation of employer and employee.” Bussell v. Bishop, 152 Ga. 428, 430 (110 SE 174) (1921). “ ‘Where a person is hired to serve another without any agreement as to the duration of service, there is no inflexible rule of law as to the length of time the hiring is to continue. The question as to the length of time the hiring is to continue will be governed by the circumstances of each particular case. [For example], [i]f one is hired to work in a crop being raised, the presumption is, in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop season.’ ” McClure v. Leasco Computer, 134 Ga. App. 871, 872-873 (216 SE2d 689) (1975).

In the present case, there was evidence that the parties intended the employment contract to continue for more than a single crop season. As to the trial court’s finding that there was an enforceable contract between the parties for the “economic life” of the peach trees, there was evidence which could support a determination that, considering the particular circumstances and expenses attendant to the agreement to plant, cultivate and harvest the peach trees, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, a period referred to as the “economic life” of the peach trees. See Lineberger v. Williams, 195 Ga. App. 186, 187-188 (393 SE2d 23) (1990); General Forms v. Continental Cas. Co., 123 Ga. App. 52, 54 (179 SE2d 522) (1970); Smith v. Cowart, 75 Ga. App. 268, 272-273 (43 SE2d 196) (1947). Under the evidence presented, the trial court did not abuse its discretion in granting the interlocutory injunction.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Decided August 17, 1994

Reconsideration denied September 12, 1994.

Robert E. Lanyon, Mincey & Green, Thomas M. Green, for appellants.

Adams & Adams, Charles R. Adams III, Byrd & Anthony, Garland T. Byrd, for appéllee.

       Miami Valley and Davidson do not raise the Statute of Frauds (OCGA § 13-5-30) as a defense to enforcement of the oral contract. In any event, there was evidence supporting the trial court’s determination that Southern Orchard’s performance removed the agreement from the bar of the Statute of Frauds. Compare Golden v. Nat. Svc. Indus., 210 Ga. App. 53 (435 SE2d 270) (1993).
      Since the issue was not raised by the appellants, we do not address whether Southern Orchard was entitled to injunctive relief because it lacked any adequate remedy at law. See Bussell v. Bishop, 152 Ga. 428, 430-431 (110 SE 174) (1921); Nicholson v. Cook, 76 Ga. 24 (1885); Lyles v. Watson, 189 Ga. 768 (7 SE2d 909) (1940); Perdue v. Cason, 22 Ga. App. 284 (96 SE 16) (1918); Surrency v. O’Quinn, 45 Ga. App. 455 (165 SE 171) (1932); Wideman v. Selph, 71 Ga. App. 343, 345-346 (30 SE2d 797) (1944); compare Hanson v. Fletcher, 183 Ga. 858, 859-860 (190 SE 29) (1937).


text:
    A94A1514.
    HARDY et al. v. CANDLER COUNTY et al.
    (448 SE2d 487)
   Andrews, Judge.

On August 25, 1993, Cora and Bobby Hardy and Rosa Kegler filed a complaint for personal injury against Candler County, the State of Georgia and John Does I-IV. Neither the Georgia Department of Natural Resources (DNR), nor the Georgia Department of Transportation (DOT) were named as defendants.

According to the complaint, on August 28, 1991, Cora Hardy was operating an automobile along Georgia Route 121 in an unincorporated area of Candler County. Bobby Hardy and Rosa Kegler were passengers in the car. The vehicle ran into a pool of water which covered a portion of the road, causing the car to go out of control.

The Hardys and Kegler alleged that Candler County was negligent in failing to warn of the danger of potential flooding along the state highway and in failing to close the. highway since the condition constituted a nuisance. The Hardys and Kegler alleged that the State was also negligent in releasing an excessive amount of water from the George L. Smith State Park, which caused the flooding and in failing to warn of the flooding.

Candler County filed an answer, asserting that the claim against it was barred by the doctrines of governmental and sovereign immunity. The county also stated that it was not liable since it did not own or maintain the subject highway. The State filed an answer, claiming that the plaintiffs had failed to follow the requirements of the Georgia Tort Claims Act and that the complaint was barred.

On October 19,1993, the State filed a motion to dismiss based on plaintiffs’ failure to comply with the requirements of the Georgia Tort Claims Act. With its motion, the State filed the affidavit of the director of the Office of Risk Management Services of the Department of Administrative Services, in which he stated that the ante litem notice submitted by the Hardys and Kegler with respect to the accident was received by his office on July 2, 1993. On November 23, 1993, the Hardys and Kegler amended their complaint to include a copy of the ante litem notice which had been sent to the State. The State then amended its motion, arguing that plaintiffs failed to name the proper party as defendant and failed to attach a copy of the ante litem notice and a delivery receipt to the complaint within the requisite time period.

On November 2, 1993, Candler County filed a motion for summary judgment, arguing that it was neither responsible for, nor involved in, the acquisition, design, construction or maintenance of the highway. With the motion, the county filed the affidavit of the chairman of the board of county commissioners in which he swore that the county had neither owned the road, nor had responsibility for it.

On December 28, 1993, the DOT was served with process. Without submitting itself to the court’s jurisdiction, on January 26, 1994, DOT moved to quash service on several grounds, including that DOT was not named as a party defendant and that no allegations of negligence were made in the complaint against it.

On January 14, 1994, the plaintiffs amended their complaint again. They alleged that the State was liable through its agency, the Georgia Department of Natural Resources. They alleged that the county was also liable to plaintiffs because “the said defendant, acting through its agent, undertook to protect persons who might be injured as a result of the release of the water by the personnel at the George L. Smith State Park.” They claimed that the DNR was liable under the Federal Power Act because of the negligent release of water. The record shows no certificate of service for the second amended complaint to either DNR nor to counsel for the State.

On February 9, 1994, the superior court granted summary judgment to both the county and the State. Citing Christian v. Monroe County, 203 Ga. App. 342 (417 SE2d 37) (1992), the court concluded that the county had conclusively shown that it had never been responsible for, or involved in, the acquisition, design, construction or maintenance of the road and that summary judgment was proper.

With respect to the State, the court concluded, inter alia, that plantiffs failed to give notice of their intentions to file the lawsuit against the State as required by OCGA § 50-21-26 (a). The court found that “the plaintiffs mailed the statutory notice by certified mail on June 29, 1993, and that the notice was received by the State on July 2,1993. The accident occurred on August 28, 1991; therefore, the ante litem notice to have complied with the law should have been given to and received by the State within 12 months after July 1, 1992, or before July 1, 1993, pursuant to OCGA § 50-21-26 (a) (1).” The court concluded that because no written notice of the claim was timely presented to the state as required by OCGA § 50-21-26 (a) (3), it had no jurisidiction in the matter and was precluded from acting.

In their sole enumeration of error, the Hardys and Kegler contend that the court erred in granting summary judgment. With regard to the county, they claim that summary judgment was improper since the evidence did not establish that the county was not liable for the dangerous conditions on the highway. Citing Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981), they argue that the DOT was served by second original with the complaint and that the suit was authorized pursuant to OCGA § 32-2-6. They argue that the court failed to specifically rule on the allegations concerning the county’s failure to post warnings of the dangerous conditions on the road and that these claims should have survived the motion and are deemed true until rebutted.

These arguments are without merit. “[I]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Nevertheless, a movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) [(1991)]. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the nonmoving party’s case.” (Citations and punctuation omitted.) Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993).

As the superior court correctly determined, this case is controlled by Christian v. Monroe County, supra. Pretermitting questions regarding OCGA § 32-2-6 and the Department of Transportation, the principles from Christian are instructive. In that case, this court stated, “[although under OCGA § 32-2-2 (a) (5) a county may assume responsibility for construction or maintenance of any public road, in the absence of a specific agreement by which the county assumes such duties, there is no general duty imposed on the counties to maintain state highways.” Christian, supra at 343. See generally Painter v. Sorrow, 205 Ga. App. 775 (423 SE2d 684) (1992).

Here, the county produced evidence that it had no responsibility for any aspect of the road. The Hardys and Kegler may not now rest on their pleadings, but must point to specific evidence that the county had a duty with respect to the roadway. This they have failed to do. Moreover, they have failed to cite any authority to support their argument that the duty to warn allegations should be considered separately from the other portions of the complaint. Accordingly, summary judgment was properly granted to the county.

Next, the Hardys and Kegler argue that the court erred in granting summary judgment to the State. They contend that OCGA § 50-21-26 of the Georgia Tort Claims Act (the Act) provides that notice of a claim shall be given in writing within 12 months after July 1, 1992 and that the fact that the notice here was mailed on June 29, 1993, makes it timely. The State contends that since it did not receive the notice until July 2, 1993, the notice was untimely and the action is therefore barred.

OCGA § 50-21-26 (a) provides: “(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered; provided, however, for tort claims and causes of action which accrued between January 1,1991, and July 1, 1992, notice of claim shall be given in writing within 12 months after July 1, 1992;

“(2) Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed;

“(3) No action against the state under this article shall be.'commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection.”

As set forth above, OCGA § 50-21-26 (a) (1) requires that notice be “given” to the State in writing within 12 months after July 1, 1992, and OCGA § 50-21-26 (a) (3) provides that no action can proceed against the State unless such notice has been “presented” to it. The Act thus uses the terms “given” and “presented” interchangeably, neither of which are defined by the Act. However, the term “presented” as used in the analogous Federal Tort Claims Act has been defined as meaning actual receipt such that a claim has been “presented” to a federal agency when it actually receives such a claim. See Barlow v. AVCO Corp., 527 F. Supp. 269 (E.D. Va. 1981). We adopt this rationale and hold that pursuant to OCGA § 50-21-26 (a) written notice of the claim must be received by the State within the requisite statutory period so that the State can take appropriate action on the claim. See Barlow, supra. Because notice of plaintiffs’ claim was not received by the State within 12 months of July 1, 1992, the jurisdictional prerequisite to suit has not been met and the superior court properly granted summary judgment to the State. In light of our holding, we need not address plaintiffs’ remaining contentions concerning the grant of summary judgment to the State.

Decided August 19, 1994

Reconsideration denied September 12, 1994 —

W. Douglas Adams, for appellants.

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Brenda H. Cole, Assistant Attorney General, Doremus, Jones & Smith, Bobby T. Jones, for appellees.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       We note that OCGA § 32-2-6 (a) provides that when any such action is brought against a county, it is the plaintiff’s duty to provide for service of notice of the pendency of such action against the county upon the department by providing for service of a second original process upon the commissioner, or by leaving a copy of the same in the office of the commissioner in the DOT. The provision further states: “The service of process in such action upon the county shall not be perfected until such second original process has been served as provided in this Code section.” (Emphasis supplied.)
      Because issues regarding service of process and the validity of the suit against the county in light of the fact that the DOT was not served until December 1993 were not raised by the parties, they will not be addressed.


author: Birdsong, Presiding Judge.

text:
    A94A1599.
    SMITH et al. v. THE STATE.
    (448 SE2d 906)
   Birdsong, Presiding Judge.

Roger E. Smith was convicted of kidnapping, possession of a firearm during the commission of a crime, and aggravated sodomy. David H. Mosley was convicted of rape, kidnapping, robbery, and possession of a firearm during the commission of a crime. A third defendant, Charles R. Hardison, died before trial. The State’s evidence showed the victim was kidnapped from the parking lot of a bar in Glynn County by Hardison, who used the threat of a 9 mm gun. Hardison drove the victim’s car from Jesup to Brunswick. He turned into a wooded area in Wayne County and stopped. Smith and Mosley, in a truck, followed Hardison and the victim; they stopped behind the victim’s car and got out of the truck. Hardison pulled the victim from the car, raped her, and then took her to the truck and tried to rape her again but stopped because the victim was crying too hard for him to do anything with her. Mosley raped the victim, then Smith forcibly sodomized her in the truck. While Smith sodomized the victim, Mosley and Hardison took about $170 from her purse. Hardison then got in the driver’s seat of the truck with the victim and Smith. Mosley followed in the victim’s car. A state trooper, seeing suspicious behavior, stopped the truck, and the victim cried out for help. The trooper subdued Hardison, but Smith ran. Later he turned himself in and showed officers the scene of the crimes in Wayne County.

Mosley admitted the three men had been drinking and were “horny.” He admitted that he and Smith followed Hardison and the victim into the wooded area in Wayne County, and that Hardison threw the victim on the hood of her car and raped her. Mosley also admitted kissing the victim and fondling her breasts and genitals, and that she was crying so hard he could not achieve an erection. Mosley admitted knowing it was wrong to do what he was doing.

Smith admitted that the three men had gone drinking and had left a nightclub to pick up some women; Smith saw the victim sitting in her car. Moments later Hardison drove by in the victim’s car. The victim was in the car with her head down; Smith and Mosley followed the car to Wayne County. Smith admitted that Hardison pulled the victim from the car and raped her and that Hardison then took the victim to the truck and continued having sexual intercourse with her; Smith admitted getting in the truck and trying to calm the victim; he admitted fondling her breasts and genitals and turning her on her knees, and he admitted that his penis was probably pressing against her rectum. He testified he ran from the trooper because he knew he had done wrong.

Appellants enumerate 18 errors below. Held:

1. Appellants contend in enumerations 3 and 7 that certain statutes are unconstitutional. This appeal was filed in the Supreme Court and that court transferred the appeal to this court. We are without jurisdiction to consider the constitutionality of statutes. Ga. Const. 1983, Art. VI, Sec. VI, Par. II.

2. In enumerations 1 and 2, appellants contend the kidnapping charges should not have been tried in Wayne County, as the venue of kidnapping charges is the county where the victim was seized (Harris v. State, 165 Ga. App. 249 (299 SE2d 924)); and they contend the improper joinder of the kidnapping charges caused prejudicial error. We find no error. The kidnapping of which appellants were tried and found guilty in this case was the second kidnapping which occurred in Wayne County, where the victim was abducted from her car and held against her will by appellants Smith and Mosley. See Harris at 250. This charge was not improperly joined with the charges of rape, robbery and aggravated sodomy. The charges were part of a continuing criminal enterprise and were properly joined. See OCGA § 16-1-7 (b).

3. In enumerations 4 and 5, appellants contend the trial court erred in excluding the victim’s former husband’s testimony as to the victim’s rape accusation. This was not error under Smith v. State, 259 Ga. 135 (377 SE2d 158). Evidence that the victim was engaged in domestic relations litigation at the time of these crimes is irrelevant; moreover, appellants fail to cite any legal authority for their contentions on this point. Court of Appeals Rule 15 (c) (2).

4. In enumerations 6 and 8, appellants contend that to the extent that OCGA § 16-11-106 permits a conviction for possession of a firearm during commission of a crime, it is not constitutionally applied in this case because the only gun found was the .22 rifle hanging in the rear window of appellants’ truck and no 9 mm handgun was ever found; and they contend this evidence is insufficient to sustain these convictions. Appellants have abandoned enumeration 6 for failure to cite legal authority therefor. Court of Appeals Rule 15 (c) (2). We note that regardless whether the gun used by Hardison to abduct the victim in Glynn County was ever found, the convictions against appellants Smith and Mosley under OCGA § 16-11-106 for possession of a firearm during the commission of the crimes in Wayne County are supported by the presence of the .22 rifle in the truck’s rear window, “within arm’s reach” of where appellants violated the victim and held her against her will. OCGA § 16-11-106 (b). Appellants cite no authority for their contention that a conviction under § 16-11-106 cannot be sustained unless the State proves that the firearm “within arm’s reach” (id., (b)) was capable of being fired. The statute makes no such requirement. The evidence is sufficient to support this conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

5. As a matter of fact, the trial court did not improperly comment on the evidence, as alleged in enumeration 9, by stating that appellants contended they did not have intercourse with the victim but that they also contended that any intercourse they had with her was consensual.

6. Enumeration 10, that the trial court erred in refusing to charge the jury on misapprehension of fact as to the victim’s consent, is abandoned (Court of Appeals Rule 15 (c) (2)) and is, moreover, without merit.

7. In enumeration 11, appellants contend the trial court erred in refusing to give their requests to charge numbers 1 and 3 on “consent.” Appellants do not explain what these charges were and why they should have been given, nor do they make any argument and citation of law. Accordingly, this enumeration is abandoned. Court of Appeals Rule 15 (c) (2).

8. Appellants contend the trial court erred in denying their motion for mistrial when the State commented on the marital privilege, by asking Mosley if he married his girl friend so that she could not testify against him. This enumeration is without merit. The trial court sustained appellants’ objection to this question and gave adequate curative instructions to the jury. See generally Gamble v. State, 194 Ga. App. 765, 768 (391 SE2d 801). Appellants abandoned the issue of entitlement to mistrial by failing to give argument and citation of authority. Court of Appeals Rule 15 (c) (2).

9. In enumeration 13, appellants contend the trial court erred in allowing the State to introduce evidence of statements made by defendants to police, which were not recorded or signed by appellants, and the notes as to which were destroyed. This enumeration is abandoned. Court of Appeals Rule 15 (c) (2). We note that weight and credibility of the evidence given as to statements made by defendants is for the jury; the manner of taking and preserving such statement goes to its weight of the evidence, not its admissibility.

10. Appellants contend in enumeration 14 that the verdicts for rape and sodomy were inconsistent with the jury’s specific finding that no bodily injury had occurred. This enumeration is abandoned. Court of Appeals Rule 15 (c) (2). Such verdicts and findings are not inconsistent in fact.

11. Appellants contend the State was guilty of prosecutorial misconduct. This enumeration is abandoned for failure to give any argument or cite any legal authority concerning prosecutorial misconduct. Court of Appeals Rule 15 (c) (2).

12. Appellants contend the State’s failure to deliver Brady material until the day of trial rendered the trial fundamentally unfair. This enumeration is abandoned for failure to give argument and cite legal authority. Court of Appeals Rule 15 (c) (2). We note that Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) does not create a constitutional right to discovery in a criminal case; it applies only to the discovery after trial of information which had been known to the prosecution but unknown to the defense. Consequently when the material is disclosed to the defense during trial, there is no Brady violation. Fuqua v. State, 183 Ga. App. 414, 417 (359 SE2d 165). The complained of material was provided to appellants the day of trial, and no material prejudice is shown. Burgan v. State, 258 Ga. 512 (1) (371 SE2d 854).

13. Appellants’ contention that they received ineffective assistance of trial counsel is without merit. To prevail on such a claim, they must show not only that trial counsel was deficient, but that this deficiency prejudiced them in their defense. Smith v. Francis, 253 Ga. 782 (325 SE2d 362). Mere choice of one trial tactic rather than another does not amount to ineffective assistance of counsel. Id.; see Williams v. State, 258 Ga. 281, 286-289 (368 SE2d 742), No deficiency and harm are shown. Evidence that there was no sign of “trauma” to the victim’s genital area the morning after she was raped probably would not affect the verdict as to appellants’ sexual crimes, since both admitted the victim had been raped by Hardison, and both admitted they committed criminal sexual acts against the victim. See Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515). The enumeration is otherwise abandoned under Court of Appeals Rule 15 (c) (2).

Decided August 26, 1994

Reconsideration denied September 13, 1994 —

John R. Calhoun, Gregory N. Crawford, for appellants.

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

14. The court did not err in charging on conspiracy. There was ample evidence of conspiracy to support the charge. See Weatherington v. State, 139 Ga: App. 795 (229 SE2d 676).

15. The burden is on the party alleging error to show it affirmatively by the record, and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Griner v. State, 192 Ga. App. 283 (384 SE2d 398). Court of Appeals Rule 15 (c) (2) provides that an unsupported claim of error is treated as abandoned, and any enumerated error which is not supported in the brief by citation of authority or argument shall be deemed to have been abandoned. Despite appellate counsel’s abandoning of ihany of their enumerated errors in this criminal case, however, we have in fundamental fairness to these defendants elected to look at the essential merit of each error alleged, and we find no error.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1057.
    HYLTON v. AMERICAN ASSOCIATION FOR VOCATIONAL INSTRUCTIONAL MATERIALS, INC. et al.
    (448 SE2d 741)
   Birdsong, Presiding Judge.

Richard M. Hylton appeals the grant of summary judgment to the defendants, American Association for Vocational Instructional Materials, Inc., Thomas A. Silletto, James McCully, Amon Herd, Alvin Halcomb, George W. Smith, Jr., James E. Wren, Dr. Chris J. B. Smit, and the Board of Regents of the University System of Georgia. Hylton’s claims against these defendants for defamation and malicious interference with contract arose from the termination of his duties as executive director of the American Association for Vocational Instructional Materials, Inc. (“AAVIM”).

The record shows AAVIM is a private, non-profit corporation intended to promote agricultural and vocational education; that Sil-letto, McCully, and Herd were members of AA VIM’s executive committee; that Halcomb was a member of AA VIM’s board of directors; that Smith and Wren are AAVIM employees; that Smit was Hylton’s supervisor at the University of Georgia; and that Hylton had a contract of employment with the Board of Regents.

The record further shows Hylton first was hired as an AAVIM research and development specialist and, because of AA VIM’s relationship with the University of Georgia, he also had the status of associate professor in the University’s Department of Extension Education. In 1986, he was appointed to the position of executive director of AAVIM and director of the National Institute of Instructional Materials (“NIIM”). NIIM is a department of the University of Georgia’s College of Agriculture which the University formed to administer AAVIM. Although employees of AAVIM were listed as employees of the University, costs of salaries and benefits were reimbursed by AAVIM. Further, all non-clerical employees of AAVIM had one-year employment contracts with the University System of Georgia.

In 1990, Hylton and others, including appellees Smith and Wren, were advised that their NIIM contracts would not be renewed for the 1991-1992 school year. Then in October 1990, following a meeting of AA VIM’s board of directors at which a memorandum critical of Hyl-ton’s performance as executive director circulated, the board placed Hylton on administrative leave from his position as executive director of AAVIM and relieved him of his duties with AAVIM. Subsequently, Hylton was terminated as executive director, effective June 30, 1991.

Hylton later learned the memorandum that circulated at the meeting of the board had been prepared by defendants Smith and Wren on behalf of defendants Silletto, Herd, and McCully, the members of AA VIM’s executive committee. Hylton contends the memorandum was defamatory and was designed to destroy his career and his professional reputation. Hylton alleges that the memorandum stated he was dishonest, questioned his professional reputation and performance, and called for his dismissal, and also alleges that circulation of the memorandum constituted malicious interference with his contractual relationship with the University of Georgia.

The record shows that after Hylton was placed on administrative leave as director of AAVIM, defendant Smit removed Hylton as the director of NIIM. The record also shows, however, that Hylton was director of NIIM only because he was the director of AAVIM and his responsibility as director of NIIM was to serve as executive director of AAVIM. Further, the record shows that AAVIM reimbursed the University for the salary paid Hylton as director of NIIM.

The record further shows that Hylton’s contract with the University was for a one-year term, and that before the meeting of AA VIM’s board of directors, Hylton had been informed the University had decided that after July 1, 1991, AA VIM’s employees, except for Smith and Wren, would be employees of AAVIM, and not the University. Hylton was also informed that Smith and Wren would not be renewed by the University after the 1990-1991 school year. Further, by letter dated September 28, 1990, Hylton was advised that the University would not renew his contract for the 1991-1992 school year.

The record further shows that Hylton’s contract for the 1990-1991 school year, and his earlier contracts with the University, contained a statement that the contract constituted the entire agreement between Hylton and the Board of Regents and that the contract could not be changed or modified other than by a writing signed by the parties; the contract also contained an acknowledgment by Hylton that he would not be re-employed unless a new contract was offered by the Board of Regents and accepted by him.

The record further shows that, even though Hylton was relieved of his duties as executive director of AAVIM in October 1990, he continued to receive his full salary until his contract expired at the end of June 1991.

Subsequently, Hylton filed suit against the defendants primarily asserting interference with his employment contract and defamation. After discovery, Smit and the Board of Regents (“the University defendants”) filed a motion for summary judgment and the other defendants (“the AAVIM defendants”) also filed a motion for summary judgment. The trial court granted both motions.

Regarding the University defendants’ motion, the trial court ruled that Hylton had not established his claim of tortious interference with contract because, in fact, there was no interference with Hylton’s contract rights since his contract was honored in full and because at all times pertinent to the action defendant Smit was acting as an agent of the University and thus was not a stranger to Hylton’s contract with the University. Further, to the extent Hylton asserted a claim based upon any oral promises or modification of his written contract, the trial court found that this claim was precluded by the terms of Hylton’s contract with the University, the parol evidence rule, and the statute of frauds.

The trial court found that the AAVIM defendants also were entitled to summary judgment because the evidence showed there was no defamatory statement in the resolution adopted by the AAVIM board that terminated Hylton’s employment, because the memorandum critical of Hylton’s performance as executive director was not published within the meaning of the elements of a claim of defamation since the circulation of the memorandum was only to the members of the AAVIM executive committee and board of directors, and because the memorandum itself could not support a claim of defamation as it contained only expressions of opinion. The trial court further found that there was no interference by the AAVIM defendants with Hyl-ton’s contract with the University because his contract was honored in full and because Hylton had no legitimate contractual expectation of further employment with the University. This appeal followed. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. On the issue of Hylton’s claim of tortious interference of contract, Hylton merely states the general principles of law applicable to this tort and sets forth his contentions regarding expectations for his continued employment which are different from those expressed in the contract. Hylton, however, has not shown that the lower court applied the law incorrectly or that the evidence differed from that which the trial court relied upon.

The elements of this tort are the existence of a contractual relationship, interference with the relationship by one who is a stranger to the contract, and resulting damage to the contractual relationship. See St. Mary’s Hosp. of Athens v. Radiology Prof. Corp., 205 Ga. App. 121, 124 (421 SE2d 731). As there is no dispute that Hylton’s contract with the University was honored in full and no dispute that the University notified Hylton before the AAVIM board met that his contract would not be renewed after the 1990-1991 school year, Hylton cannot establish an essential element cause of action for tortious interference with contract. Since Hylton admits the University had decided not to offer him a contract after the 1990-1991 school year before the AAVIM board took action, the AAVIM defendants could not have interfered with his contractual relationship as a matter of law, for the contractual relationship was not damaged. Moore v. Barge, 210 Ga. App. 552, 556 (436 SE2d 746); Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 259 (345 SE2d 924). Further, since both State defendants were not strangers to the contract, they obviously could not be liable for tortious interference. Moore v. Barge, supra at 554; Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178 (435 SE2d 486). Compare Renden, Inc. v. Liberty Real Estate &c. Partnership, 213 Ga. App. 333, 337 (444 SE2d 814). Moreover, since the Board of Regents had authority to end Hylton’s relationship with the University, it could not be liable for interference with the contract. See Moore v. Barge, supra at 553. Also, while Hylton may have had a personal expectation of receiving additional contracts from the University based on oral promises allegedly made, since these promises differed from the specific written terms of his contract they have no legal significance. OCGA §§ 24-6-1; 13-5-30 (5). Therefore, since all defendants showed that there is no evidence sufficient to create a jury issue on at least one essential element of Hylton’s claim of tortious interference with contract, that claim tumbles like a house of cards. Lau’s Corp. v. Haskins, supra.

3. On his claim of defamation, Hylton correctly sets forth various general principles of law connected with the tort of defamation, but again does not address the crucial issues on which the trial court granted summary judgment, i.e., the resolution was not defamatory, the memorandum was not published, and the memorandum expressed opinion not fact.

Decided September 13, 1994.

Bushnell & Lariscy, William C. Bushnell, Joseph E. Lariscy III, for appellant.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Rebecca S. Mick, Assistant Attorney General, Drew, Eckl & Farnham, Hall F. McKinley III, Douglas G. Smith, Jr., for appellees.

First, nothing in the board’s resolution can be taken as defamatory. The resolution merely recites certain procedural matters and then states that because of uncertainties regarding the relationship between AAVIM, the University, and NIIM, Hylton felt he could not continue to represent AAVIM; that Hylton was placed on administrative leave with pay and was relieved of his duties with AAVIM pending resolution of the uncertainties with AAVIM, the University, and NIIM, and AAVIM asked that the University resolve those uncertainties, and then appointed an interim director. Nothing in this resolution is defamatory per se, nor can any statement be construed reasonably as defamatory by innuendo. See Cox Enterprises v. Bakin, 206 Ga. App. 813, 818 (426 SE2d 651); Yandle v. Mitchell Motors, 199 Ga. App. 211 (404 SE2d 313). Thus, while in most cases whether a statement is defamatory is a question for the jury, as this statement is not ambiguous and can reasonably have but one interpretation, the lower court properly decided the issue. Thomason v. Times-Journal, 190 Ga. App. 601 (379 SE2d 551).

Further, we agree with the trial court that, as a matter of law, there was no publication of the allegedly defamatory memorandum. See Elder v. Cardoso, 205 Ga. App. 144, 146 (421 SE2d 753); Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878). There is no evidence the memorandum was circulated to anyone who was not in attendance at the meeting of the AAVIM board of directors and thus would have had an official reason to receive the information. Kurtz v. Williams, supra. Moreover, the trial court correctly found the memorandum is an expression of opinion rather than fact. Elder v. Cardoso, supra at 145; Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (337 SE2d 770).

Accordingly, the trial court did not err by granting summary judgment to appellees.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A94A1756.
    BAKER v. THE STATE.
    (448 SE2d 745)
   Beasley, Presiding Judge.

Baker appeals from his conviction and sentence on charges of armed robbery, OCGA § 16-8-41, possession of a firearm by a convicted felon, OCGA § 16-11-131, and possession of a firearm during the commission of a crime, OCGA § 16-11-106.

1. In his first enumeration of error, Baker contends the court erred in not trying the possession of a firearm by a convicted felon separately from the other charges, arguing that the trial of all charges together informed the jury that he had a prior conviction, irreparably prejudicing the jury against him. He has not included a statement setting forth the method by which each of his enumerations of error was preserved for consideration by this court, as required by Court of Appeals Rule 15 (a) (1), but review of the record and transcript reveals that Baker made no motion to sever. In establishing the procedure which courts should follow to protect the rights of defendants such as Baker, the Supreme Court stated “the trial judge, on motion, shall. . . bifurcate the proceedings in such manner that the jury shall hear and determine first the more serious charge. . . .” Head v. State, 253 Ga. 429, 431-432 (3) (a) (322 SE2d 228) (1984). As Baker made no motion, the trial court was not obligated to sever.

Moreover, unlike Head, limiting instructions were given. This is coupled with the fact that in Head there was no corroboration of the victim’s testimony and the evidence of the defendant’s guilt could not be considered overwhelming. Id. at 430-431 (2). In this case, the victim testified that Baker had committed the act. This testimony was corroborated by another witness who heard a gunshot, saw the victim on the ground, saw Baker and two others walking away, and heard one of the others say “Man, whenever I get ready to hit somebody, you don’t stop me.” She knew Baker since his childhood and recognized two other men in the group, too. Both the witness and the victim identified defendant in a photographic array. The proof of a prior conviction did not place Baker’s character in issue to such an extent as to affect the verdict on the armed robbery and firearm charges. See Meredith v. State, 211 Ga. App. 213, 214 (1) (438 SE2d 644) (1993); Favors v. State, 182 Ga. App. 179, 180 (1) (355 SE2d 109) (1987).

2. Baker also contends the court erred in failing to mask the indictment to eliminate any language indicating that he had a prior conviction. He makes no argument in support of this enumeration, does not show how it was preserved, and the only authority he cites, Evans v. State, 253 Ga. 331 (320 SE2d 168) (1984), is not supportive. In Evans, the defendant pled guilty to possession of a firearm by a convicted felon, went to trial on the charge of murder and was convicted; the only error asserted was allowing the full indictment to go to the jury. The Supreme Court reversed, holding that “[o]nce the trial court accepted appellant’s guilty plea to possession of a firearm by a convicted felon, thereby removing this issue from the jury’s consideration, the proper course of action would have been to keep appellant’s prior criminal record from the jury’s knowledge while they deliberated the murder charge.” Id. at 333.

Decided September 13, 1994.

Michael K. Gardner, for appellant.

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

In this case, as determined above, the charge of possession of a firearm by a convicted felon was not improperly included in the charges tried. There could be no error in allowing the indictment to go to the jury when it included one of the charges which the jury was required to resolve. In addition, Baker specifically stated he had no objection to the indictments on his prior convictions going to the jury, thus waiving the underlying basis for any objection. Evans, supra at 333.

3. In his final enumeration, Baker asserts the counts of possession of a firearm during the commission of a crime and armed robbery merge. Review of the record and transcript do not indicate that any such suggestion was ever made to the trial court, and Baker again does not show this court how error was preserved. He makes no argument and the only authority he cites does not concern merger as it relates to the offenses charged. The assertion he makes in this enumeration is contrary to the statute, OCGA § 16-11-106 (e) and has been decided against him in Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Ruffin, Judge.

text:
    A94A1129.
    BIFFLE v. THE STATE.
    (448 SE2d 749)
   Ruffin, Judge.

Appellant pled guilty to possession of cocaine and carrying a concealed weapon, expressly reserving the right to appeal the denial of his motion to suppress. This appeal is properly before this court for review since the plea was not entered within 30 days of the effective date of Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994).

A DeKalb County police officer observed appellant driving a vehicle from which loud rap music with profane lyrics was emanating. The music rattled the windows of the officer’s car. The officer pulled behind the vehicle and turned on his blue lights in order to pull the car over and ask appellant to turn the music down. As appellant turned off the road into a parking lot, the officer observed appellant lean down as if reaching under the driver’s seat. As the officer approached the driver’s side window, he detected the smell of alcohol and saw an open beer bottle on the rear floorboard. Concerned that appellant might have placed additional beer or a weapon under his seat, the officer ordered appellant out of the car. The officer then retrieved a loaded 9 millimeter semi-automatic pistol from under the seat and arrested appellant for carrying a concealed weapon. During an inventory search of the car before it was towed from the scene, the officer discovered what appeared to be a marijuana cigarette in the ashtray. After appellant was transported to the police station, a pat-down search was performed which yielded several small bags of marijuana and a small bag of cocaine.

Appellant contends the trial court erred in denying his motion to suppress because there was insufficient probable cause to search under the seat of the car. Appellant argues that once he was ordered to stand outside the vehicle there was no need for the officer to search under the seat of the car out of concern for his own safety. We disagree.

“ ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Cits.)’ [Cit.]” Barrett v. State, 212 Ga. App. 745, 746 (443 SE2d 285) (1994).

The initial stop of appellant’s car was authorized since the officer observed the car being operated in violation of OCGA § 40-6-14. Freeman v. State, 195 Ga. App. 357 (1) (393 SE2d 496) (1990). Thereafter, the presence of the open beer bottle, the smell of alcohol about the vehicle and appellant’s gesture toward the driver’s seat immediately after the officer turned on his blue lights gave the officer probable cause to believe that beer had been secreted under the driver’s seat in violation of the open container statute, OCGA § 40-6-253, or that a weapon was placed under the driver’s seat. Thus, the search was justified. See Bennett v. State, 209 Ga. App. 126, 127 (433 SE2d 98) (1993); Watson v. State, 190 Ga. App. 696, 697 (379 SE2d 817) (1989). Accordingly, the trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided September 15, 1994.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lee Anne Mangone, Robert M. Coker, Assistant District Attorneys, for appel-lee.