author: Andrews, Judge.

text:
    A93A1764.
    A93A1765.
    A93A2191.
    ELLIS v. THE STATE. FERGUSON v. THE STATE. JENKINS et al. v. THE STATE.
    (440 SE2d 235)
   Andrews, Judge.

Ellis, Ferguson, Curtis Jenkins, Montoria Jenkins, and Postell were indicted and tried before a jury on charges of kidnapping, burglary, armed robbery, and theft of a motor vehicle. The charges were based on allegations by the State that the five defendants were involved in an illegal entry of Jackson’s residence, kidnapping of Jackson and her son, armed robbery, and stealing Jackson’s automobile. The trial court directed a verdict on the burglary charge against all the defendants. Ellis was found guilty of armed robbery, and not guilty on the remaining charges. Ferguson, Curtis Jenkins, and Montoria Jenkins were found guilty of armed robbery, kidnapping of Jackson, and motor vehicle theft, and not guilty of kidnapping Jackson’s son. Postell was found not guilty on all counts.

Jackson testified that three people illegally entered her residence at about 1:00 a.m., took various items of personal property from her house, including about $3,900 in cash, and stole her car. After the break-in, Jackson testified the robbers forced her at gunpoint to lie on the floor in her den, then forced her to get up and walk to her bedroom and show the robbers where to locate her purse and jewelry. She was then forced to lie on the floor again while the robbers took these items, and went through the rest of her house collecting other items. Although she saw the legs of three people during the course of the robbery, she only saw the face of and was able to identify one of the robbers, Montoria Jenkins. Jackson’s son was also in the house during the robbery. The record is clear that he also identified Montoria Jenkins as one of the robbers in the house, and there is evidence, although not as clear, that he identified Ferguson as a robber in the house. He testified that both were armed. After the robbery, Jackson heard two cars pull away from her residence, and immediately alerted the police.

Testimony from police officers revealed that at about 1:30 a.m. on the morning of the robbery Jackson’s car was spotted on a nearby roadside with two other cars, a grey Dodge, and a white Chevrolet. A police officer spotted several people taking items out of Jackson’s car, and putting them into the Chevrolet. Leaving Jackson’s car abandoned on the roadside, the Dodge and the Chevrolet departed following one another at high speed. After a short chase, in which the two cars turned off in opposite directions, police eventually stopped both vehicles. The police officer who stopped the Dodge observed four black males exit the car and run into the woods. A search of the Dodge produced an automatic weapon later identified as one similar to a weapon used in the robbery, and three other guns. Postell, who admitted he was one of the men in the Dodge, later gave himself up a short distance from where the car was abandoned. Co-defendants Ferguson, Curtis Jenkins, and Montoria Jenkins, who were identified by Postell as the other men in the Dodge, were apprehended together the next morning in a nearby wooded area carrying about $900 in cash. Ellis was stopped while driving the Chevrolet, which contained numerous items identified as having been taken in the robbery. Property identified as having been taken in the robbery was also found in Jackson’s abandoned Toyota.

Postell testified at trial that he was not involved in the robbery, but that after the robbery the other four co-defendants came by his house. He got in the grey Dodge with Ferguson, while Ellis followed in the Chevrolet, and Montoria Jenkins and Curtis Jenkins followed in Jackson’s Toyota. After they spotted a police car, Curtis Jenkins and Montoria Jenkins left the Toyota on the side of the road, and got in the Dodge along with him and Ferguson. Postell testified that shortly thereafter they were stopped by police, and all four ran into the woods.

Curtis Jenkins gave a pre-trial statement to police indicating that he went to Jackson’s house to collect money Jackson owed for drug sales. The statement continued: “[S]o I ask my partners to go went [sic] me and get my money. Two of my partner[s] and the other to [sic] I did not no [sic] that well. We drove to the hose [sic]. Some of us throw rock and bust her window but we did not shoot either time we was there. I went in the house and demand my money. I had the short [gun].” The statement further relates that two men did not go in the house and “did not really no [sic] what was going on.”

At trial, Ferguson and Curtis Jenkins testified that they went with Montoria Jenkins to Jackson’s house to collect some money from her for a debt. They denied robbing Jackson, and stated that Jackson agreed to give them the items they took, along with her car, as payment for the debt. Ferguson testified that Ellis never went in the house, and was not a part of the effort to collect the debt.

Ellis testified at trial and denied any involvement in the armed robbery. He stated that he went over to Jackson’s house to buy drugs from her, and met Ferguson coming out of Jackson’s driveway. Ellis testified that Ferguson asked him if he would put some stuff in his car to take to Atlanta, and he replied: “I would, you know, because I wasn’t doing nothing at the time.”

Case No. A93A1764

Ellis appeals his conviction for armed robbery claiming that the evidence was insufficient to support the conviction, and the trial court erred in denying his motion for a directed verdict made on the basis of insufficient evidence.

1. Although the evidence did not show Ellis went in Jackson’s house and directly committed the offense of armed robbery, there was sufficient evidence to convict Ellis as a party to the crime. “Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Bailey v. State, 203 Ga. App. 133, 135 (416 SE2d 151) (1992).

There was evidence, including the pre-trial statement given by Ellis’ co-defendant, Curtis Jenkins, from which the jury could conclude that Ellis was present at the scene of the crime, and knew of the other co-defendants’ armed entry into Jackson’s house. Ellis’ own testimony established his presence at the scene of the robbery, and his agreement with a co-defendant to put items taken from Jackson’s house in his car. This evidence coupled with other evidence of Ellis’ cooperation with co-defendants after the robbery, and his flight from the police with the stolen goods, was sufficient direct and circumstantial evidence to allow the jury to conclude that he was concerned in the commission of the crime by intentionally aiding and abetting the armed robbery. Although there was other testimony that Ellis was not involved, the credibility of the witnesses was a matter for the jury; on appeal we consider the sufficiency of the evidence, viewing it in the light most favorable to support the jury’s verdict. Nelson v. State, 208 Ga. App. 671 (431 SE2d 450) (1993). The evidence was sufficient for the jury to conclude beyond a reasonable doubt that Ellis was a party thereto and guilty of the offense of armed robbery.

Case No. A93A1765

Ferguson appeals from his convictions for armed robbery, kidnapping, and theft of a motor vehicle.

2. In his first enumeration of error, Ferguson claims the convictions were contrary to law and the evidence, and against the weight of the evidence. The latter claim is addressed to the trial court, not this court (see footnote 1, supra); the former claims go to the sufficiency of the evidence.

The evidence was sufficient to sustain the convictions. There was evidence that Ferguson entered Jackson’s house, was armed, and directly participated in taking property from Jackson by use of an offensive weapon. OCGA § 16-8-41. As to the kidnapping conviction, the forcible movement of Jackson from her den to her bedroom was sufficient evidence that she was forcibly abducted and held against her will. Unlawful asportation, even for a short distance, is sufficient to support a conviction for kidnapping. Chambley v. State, 163 Ga. App. 502, 503-504 (295 SE2d 166) (1982). The evidence was also sufficient to support Ferguson’s conviction for the theft of Jackson’s automobile after the co-defendants left Jackson’s house. Even if the evidence did not prove Ferguson’s direct commission of the offenses of kidnapping and theft of the automobile, there was more than sufficient evidence to convict Ferguson as a party to these offenses. OCGA § 16-2-20 (a).

3. Ferguson claims his Sixth Amendment right to cross-examination was improperly limited. The trial court sustained the State’s objection to a question posed to one of the State’s witnesses on a cross-examination conducted, not by counsel for Ferguson, but by counsel for Montoria Jenkins, who thereafter made no offer of proof as to the purpose of the inquiry. See Westerfield v. State, 176 Ga. App. 195, 197 (335 SE2d 702) (1985). When the objection was sustained, counsel for Ferguson had already completed his cross-examination of the State’s witness. There is nothing in the record to indicate that the ruling complained of curtailed Ferguson’s right to cross-examination. He has no standing to complain of the trial court’s ruling on the cross-examination conducted by counsel for a co-defendant.

4. Ferguson argues that the trial court’s instructions to the jury with respect to the jury verdict form constituted an improper expression or intimation of opinion as to his guilt. See OCGA § 17-8-57. The record reflects that the trial court instructed the jury on each verdict to be considered on the various charges against each co-defendant, indicating that the verdicts should reflect a finding of guilt or innocence. There was no improper expression of opinion.

5. Ferguson claims he could not be convicted of both armed robbery and kidnapping because those offenses merged under the facts of the case. Armed robbery and kidnapping are not included offenses as a matter of law. Emmett v. State, 199 Ga. App. 650, 651 (405 SE2d 707) (1991). Although they can merge under certain facts, they do not automatically merge as a matter of fact simply because both offenses arise from the same series of events. Mincey v. State, 186 Ga. App. 839, 840 (368 SE2d 796) (1988). “Under OCGA 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all the facts used to prove the other.” Solomon v. State, 195 Ga. App. 882, 883 (395 SE2d 335) (1990).

The offense of kidnapping was completed after Jackson was seized and forcibly moved from one room in the house to another. Robinson v. State, 210 Ga. App. 175 (435 SE2d 466) (1993). Evidence showed the subsequent commission of the offense of armed robbery. Under these circumstances, convictions for both offenses did not amount to two punishments for the same conduct, nor was one offense included in the other as a matter of fact. Id.; Powell v. State, 210 Ga. App. 409 (437 SE2d 598) (1993); Chambley, supra at 504-505.

Case No. A93A2191

Curtis Jenkins and Montoria Jenkins appeal from their convictions for armed robbery, kidnapping, and theft of a motor vehicle.

6. Curtis Jenkins contends the trial court erred in finding his pretrial statement voluntary and admissible. At a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine whether or not the statement was voluntary, Curtis Jenkins testified he gave part of the statement after he was promised leniency, and that he did not make another part of the statement. The police officers who took the statement testified he gave the statement, and that no promises of leniency were made. “In ruling that the in-custody statement given by the accused was admissible, the trial court must upon consideration of the totality of the circumstances, be satisfied by a preponderance of the evidence that the statement was freely and voluntarily given, and the court’s ruling, including findings as to factual matters and credibility, will not be disturbed on appeal unless clearly erroneous.” (Citations omitted.) Connerly v. State, 207 Ga. App. 498, 499 (428 SE2d 408) (1993); Gulley v. State, 197 Ga. App. 131 (397 SE2d 609) (1990). There was no error in admission of the statement.

7. Appellants claim the trial court erroneously limited their Sixth Amendment right to cross-examination. While counsel for Montoria Jenkins was cross-examining an arresting police officer during the State’s case-in-chief, he asked if the officer knew Jackson, and the officer responded that he knew she worked at a local restaurant, but that it had been a while since he had seen her. Defense counsel then asked: “Did you or your department have any knowledge of any alleged drug activity?” The trial court sustained the State’s objection to the question. Defense counsel made no offer of proof as to the purpose of the inquiry, and stated he had no further questions.

On appeal, both appellants argue that their subsequent defense at trial was that there was no robbery or kidnapping because Jackson, who was a drug dealer, agreed to give them the items taken as payment on a drug debt they were collecting for another drug dealer. They contend the trial court erred in sustaining the objection because it was relevant to this defense. The question as posed was not whether the officer was aware that Jackson sold drugs, but whether he had knowledge of any alleged drug activity. Defense counsel made no offer of proof as to purpose of this general inquiry, and failed to bring the issue of its relevancy to the attention of the trial court. Westerfield, supra; Cooper v. State, 178 Ga. App. 709, 713 (345 SE2d 606) (1986). There was no error. Moreover, there was no evidence that the ruling with respect to cross-examination by counsel for Montoria Jenkins had any limiting effect on Curtis Jenkins’ opportunity to cross-examine. See Division 3, supra.

8. There was no expression of opinion by the trial court as to the appellants’ guilt by the manner in which the trial judge instructed the jury on the form of the verdict (see Division 4, supra), nor did the trial court improperly comment on the evidence while instructing the jury with respect to evidence of the statement given by Curtis Jenkins.

9. Appellants, who were each represented by separate trial counsel, claim they were denied effective assistance of counsel during preparation for and trial of the case. “The defendant has the burden of proving ineffectiveness by showing, first, that counsel’s performance was deficient, and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The first inquiry centers on whether counsel’s performance was reasonable under the circumstances in light of the strong presumption that all significant decisions were made in the exercise of reasonable professional judgment. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Secondly, even if the presumption is overcome, the defendant must prove ‘that there is a reasonable probability . . . that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Cit.)’ Id. at 783.” Dryer v. State, 205 Ga. App. 671, 673 (423 SE2d 297) (1992).

Appellants claim their trial attorneys should have moved to sever their cases. Both appellants are represented by new appellate counsel, who filed a motion for new trial raising the issue of ineffectiveness of counsel. The severance ground urged on appeal was not asserted in the motion for new trial, and is deemed waived. Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987).

Curtis Jenkins claims his trial counsel failed to properly move to suppress his pre-trial statement on grounds that it was not freely and voluntarily given. Trial counsel properly raised these issues at the pre-trial hearing on the statement, at which the trial court concluded the statement was voluntary and admissible. See Division 6, supra.

Appellants contend that trial counsel failed to adequately investigate the case and present evidence in support of their defense that Jackson voluntarily gave them the property they took from her as payment on a drug debt owed to another drug dealer. Jackson testified at trial, and admitted that she had previously dealt in drugs, but denied that she was currently selling drugs, and denied that she gave her property to the appellants as payment on a drug debt. Defense counsel introduced evidence of a 1985 criminal conviction against Jackson for sale of drugs, and Ellis and Postell testified that they recently bought drugs from Jackson.

Montoria Jenkins claims that after the trial court sustained the State’s objection to a cross-examination question posed by his counsel to a police officer about knowledge of alleged drug activity, counsel failed to offer proof that the question was relevant to the defense the appellants intended to make to the charges. Even if it was error for counsel to fail to offer proof of relevancy (see Westerfield, supra), appellants offered no proof at the hearing on the motion for new trial that the police officer being cross-examined at the time had any information which would have supported the defense by impeaching Jackson’s testimony.

Appellants further contend that their trial counsel failed to call as a witness a police officer who was quoted in a local newspaper article after the robbery that he had knowledge that Jackson was dealing in drugs. However, the officer’s testimony at the hearing on the motion for new trial indicated that he had no such direct knowledge, and had only hearsay information that Jackson’s house was in “a drug area where we’ve had drug activity before.”

Appellants complain that trial counsel failed to contact the drug dealer for whom they claimed to be collecting a debt from Jackson. Counsel testified that based on the information supplied by appellants, unsuccessful efforts were made to locate the drug dealer. There was also evidence that trial counsel checked Jackson’s telephone records for evidence of a connection to the drug dealer. It is not surprising, and certainly not a basis for claiming ineffective assistance, that counsel was unable to locate and secure this witness for testimony. The record as a whole shows that adequate efforts were made to impeach Jackson by pointing to inconsistencies in her testimony.

We find no ineffectiveness in the fact that Montoria Jenkins did not testify at the trial. The record shows that this was a mutual tactical decision by counsel and the accused based on the conclusion that his defense and version of the events were consistent with testimony already given by other co-defendants.

Without elaboration or citation to the record or legal authority, appellants contend this case involved the “round up” of black males, and that trial counsel should have challenged probable cause for arrest. We find no basis for an ineffectiveness claim in this contention.

Assuming trial counsel failed to reserve objections to the trial court’s charge, appellants’ claims of error with respect to the charge are without merit, so no ineffectiveness has been demonstrated. See Divisions 4 and 8, supra.

Finally, there was no ineffective assistance in the failure of trial counsel to move for merger of the kidnapping and armed robbery offenses as a matter of fact. See Division 5, supra.

The record does not support appellants’ claims that they are entitled to a new trial because of ineffective counsel.

10. There is no merit to appellants’ separate enumeration of error contending that the armed robbery and kidnapping offenses should have merged under the facts of this case. See Division 5, supra.

11. Appellants claim the verdicts were against the weight of the evidence. The weight of the evidence is a matter for consideration in the trial court, not this court, which considers the sufficiency of the evidence. Daniel, supra. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

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

Decided January 3, 1994.

Ben R. Freeman, for Ellis.

George C. Kennedy, Jr., for Ferguson.

Cathy M. Alterman, for Jenkins.

Peter J. Skandalakis, District, Attorney, David S. McLaughlin, Lynda S. Engel, Agnes McCabe, Assistant District Attorneys, for State.

       Ellis also claims the verdict was contrary to the law, to the evidence, and to the weight of the evidence. A claim that the verdict is against the weight of the evidence is addressed to the trial court, not this court. Daniel v. State, 180 Ga. App. 687, 688 (350 SE2d 49) (1986). The remaining claims will be considered as relating to the sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A1803.
    AUTO-OWNERS INSURANCE COMPANY v. JACKSON.
    (440 SE2d 242)
   Pope, Chief Judge.

We granted this interlocutory appeal to determine whether a provision in an automobile liability insurance policy which excludes coverage if the insured “intentionally causes bodily injury or property damage” is void as against public policy even if other insurance coverage is available to the injured third party through an uninsured motorist policy.

Terry Dixon intentionally rammed his vehicle into a vehicle owned by Margaret Mincey and driven by Brenda Davis Dixon, Dixon’s estranged wife. Lois Davis, a passenger in Mincey’s car, was seriously injured. Dixon had a liability insurance policy with defendant/appellant and notified it of the incident. Within two months, defendant informed Dixon that it would not provide coverage or a defense to any action against him, citing a provision in the policy excluding coverage to an insured who “intentionally causes bodily injury or property damage.” Almost a year later, Davis filed suit against Dixon, seeking compensatory and punitive damages. Although the record shows that Mincey’s car was insured pursuant to a policy which included uninsured motorist coverage, it does not appear that Davis ever served Mincey’s carrier with a copy of her action against Dixon or that she ever sought to recover anything under Mincey’s policy. Dixon failed to respond to Davis’ complaint, and a default judgment in the amount of $150,000 (including $75,000 in punitive damages) was entered against him. Dixon then filed for bankruptcy protection under Chapter Seven. Plaintiff, the trustee of Dixon’s bankruptcy estate, brought this action against defendant insurer, contending that the policy exclusion is void as against public policy and praying for recovery of $150,000 to cover Davis’ judgment as well as penalties and attorney fees based on defendant’s bad faith denial of coverage. See OCGA § 33-4-6. Defendant moved for summary judgment or, in the alternative, partial summary judgment, arguing that the exclusion was not void as against public policy; that even if it was void as against policy, it was only void to the extent of $15,000, the level of insurance coverage mandated by the Georgia Motor Vehicle Reparations Act; and that in any case, penalties for bad faith under OCGA § 33-4-6 would be unwarranted. The trial court denied defendant’s motion entirely, and we granted its application for interlocutory review.

1. Defendant first contends that the exclusion from coverage of damages intentionally caused by the insured is not void as against public policy and should be enforced as written.

By mandating that all motor vehicle owners have at least $15,000 in liability insurance coverage, the Legislature established the public policy that innocent persons who are injured in accidents involving motor vehicles should be able to recover at least $15,000 of their damages. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (1, 2) (329 SE2d 136) (1985); OCGA § 33-34-1 et seq. In Martin v. Chicago Ins. Co., 184 Ga. App. 472 (361 SE2d 835) (1987), a case in which an insured intentionally drove his car into a group of pedestrians, we held that an exclusion identical to the one at issue here was unenforceable because it would contravene this public policy by leaving the injured pedestrians without recourse for recovery of any of their damages. Martin relied on Neese, 254 Ga. at 335-342, in which the Supreme Court held that application of an exclusion of coverage for damages caused while the insured was drag racing was void as against public policy to the extent of the amount of liability insurance required under the compulsory insurance law. While recognizing that the public’s interests in keeping premium costs down and improving safety on the highways would be fostered by enforcing the exclusion, the Court in Neese concluded that these interests were outweighed by the public interest in ensuring some recovery for the innocent victims of the insured’s misconduct. Id. at 341. The Court in Neese noted that the innocent third party in that case had no uninsured motorist coverage, however, and explicitly recognized that the balancing of interests might produce a different conclusion where an alternative source of insurance was available: “We leave to a proper case the question of whether the existence of uninsured motorist coverage would affect the outcome in such a case.” Id. at 341, n. 13. Since Neese and Martin were decided, we have added to this body of law with Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989). In Travelers, another case involving the enforceability of an exclusion in a motor vehicle liability insurance policy, we considered the competing interests discussed in Neese and held that the exclusion should be enforced as written where the injured third party had access to other insurance funds through uninsured motorist coverage under another policy. Travelers involved an unlicensed driver exclusion rather than the intentional causation of damage exclusion at issue here, but we think the relevant considerations and resulting conclusion should be the same: If the injured third party has or had access to a recovery through uninsured motorist coverage under another policy, the exclusion is enforceable.

Decided January 3, 1994.

Dillard, Bower & East, Bryant H. Bower, Jr., Joseph E. East, for appellant.

The record contains the insurance policy covering Mincey’s car at the time of the collision, and that policy provided uninsured motorist coverage of $15,000. Long before Davis’ action against Dixon was filed, defendant had legally denied coverage, thus rendering Dixon’s motor vehicle “uninsured” for purposes of uninsured motorist coverage. See OCGA § 33-7-11 (b) (1) (D) (iii). The record does not show that Davis took advantage of the policy covering Mincey’s car, but it does show that the possibility of doing so was available to her. Accordingly, Neese and Martin are distinguishable and plaintiff cannot rely on them to invalidate the exclusion.

2. Plaintiff argues that the trial court’s denial of summary judgment was proper anyway, because there is still a dispute regarding whether Dixon intentionally caused bodily injury or property damage. However, the judgment in Davis’ action states the trial court’s finding that Dixon “wilfully and intentionally drove his vehicle with great force into and against” Mincey’s vehicle, and Dixon never challenged this judgment. Plaintiff’s reliance on State Farm &c. Co. v. Carter, 208 Ga. App. 873 (432 SE2d 614) (1993) and Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. 652 (379 SE2d 577) (1989) is misplaced. In these cases involving insurance policy exclusions similar to that at issue here, we held that an insured may have acted intentionally without intending to cause damage. In Carter, however, we recognized that in some cases the nature of the intentional act is such that intent to cause damage must be inferred as a matter of law, see 208 Ga. App. at 874; and this is just such a case. The exclusion is therefore applicable as well as enforceable, and the trial court erred in denying defendant’s motion for summary judgment.

3. In light of our conclusion that defendant’s motion for summary judgment should have been granted, we need not address defendant’s arguments regarding its motion for partial summary judgment.

Judgment reversed.

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

Gibson & Jackson, Douglas Gibson, for appellee.

       We also note that plaintiff acknowledged that Dixon’s actions were intentional in his brief in opposition to summary judgment below.


author: Birdsong, Presiding Judge.

text:
    A93A2549.
    HUGHES v. TOWN OF TYRONE.
    (440 SE2d 58)
   Birdsong, Presiding Judge.

We granted this discretionary appeal under OCGA § 5-6-35 (a) (1) to review the superior court’s judgment dismissing Sarah Well-born Hughes’ petition for certiorari in which she contested the revocation of a suspended sentence. On August 23, 1992, in Tyrone Municipal Court, Hughes pleaded guilty to public drunkenness and was sentenced to “one year suspended upon condition she go to an evaluation within 30 days and intensive treatment within 90 days.” On March 9, 1993, because she failed to comply with the conditions of her suspension, Hughes’ suspended sentence was revoked and she was ordered to serve one year in confinement.

Hughes’ petition for certiorari to superior court alleged that the municipal court had not held a hearing in which she was advised of her right to counsel before revoking her suspension and that the trial court improperly ordered her to serve the full period of confinement rather than the period of suspension remaining. After the City of Tyrone answered, the superior court dismissed the petition because the “verified answer of the respondent contains a substantial recital of facts which contradict the allegations of the petition. The answer is not traversed. The recital of facts contained in the answer are rendered conclusive when neither a traverse nor an exception is filed.”

Hughes contends the superior court erred by dismissing her petition because she did not traverse or except to the answer (see OCGA § 5-4-9; Williamson v. City of Tallapoosa, 238 Ga. 522 (233 SE2d 777)) and by dismissing her petition without a hearing. Held:

1. Pretermitting whether there was a hearing during which Hughes was properly advised of her right to counsel, the question whether OCGA § 42-8-34.1 (c) prohibits the municipal court from ordering Hughes to serve the full one-year confinement is a legal question which should have been addressed by the superior court. The answer to the petition merely recited that Hughes was not placed on probation at the time of the original disposition of her case. Although this is an accurate statement of the facts, it is without real significance. A suspended sentence is not the same as being put on probation (OCGA § 42-8-39); “ ‘[t]he only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the “Statewide Probation Act” (cit.), whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required, by the sentencing judge.’ Collett v. State, 131 Ga. App. 411 (2) [414-415] (206 SE2d 70) (1974), rev’d on other grounds, 232 Ga. 668 (208 SE2d 472) (1974).” Williams v. State, 191 Ga. App. 217, 218 (381 SE2d 399). Further, in practice “[t]he Georgia courts have failed to make any meaningful distinction between a ‘suspended sentence’ and a ‘probated sentence.’ ” Ga. Crim. Trial Prac. (1992 ed.), § 26-17.

Moreover, the legislature has placed the procedures for revoking suspended sentences and probated sentences in OCGA § 42-8-34.1 without differentiating between the two. Then, OCGA § 42-8-34.1 (c) provides: “If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.”

Merely reciting that Hughes was not put on probation, even if admitted by her failure to traverse the answer, does not answer whether OCGA § 42-8-34.1 (c) prohibits the full sentence from being ordered into execution. Considering the language of the Code section, it appears the legislation intended the term “balance of probation” to include the period of suspension of the sentence, and, consequently, the municipal court’s action ordering the full sentence was unauthorized. This conclusion is supported by the legislative history of the Code section which indicates that its purpose was “to revise the requirements for imposition of periods of probation or suspension; to provide for a maximum duration of any period of probation or suspension; to provide for revocation of probation and suspension; to provide for procedures connected therewith; to provide for related matters; [etc.]” Ga. L. 1988, p. 1911, § 1. Thus, it is apparent that the legislature intended that the period which could be ordered served after the revocation of a probated or suspended sentence would be the same. This is consistent with the treatment of revocation of suspended sentences by this court. Acker v. State, 184 Ga. App. 321, 322 (361 SE2d 509); Cross v. State, 128 Ga. App. 774, 775 (197 SE2d 853); Wood v. State, 68 Ga. App. 43, 51 (21 SE2d 915). Therefore, the municipal court was not authorized to order the full sentence into execution.

2. Accordingly, it was error for the superior court to dismiss the petition for certiorari without a hearing. OCGA § 5-4-11; Planters Fertilizer Co. v. Smith, 21 Ga. App. 167 (93 SE 1018).

Judgment reversed.

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

Decided January 3, 1994.

Ballard & Ballard, Scott L. Ballard, for appellant.

John W. Mrosek, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A2006.
    GILES v. THE STATE.
    (441 SE2d 101)
    Decided December 16, 1993
    Reconsideration denied January 4, 1994
    Oliver Giles, pro se.

      Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

In 1975, a jury found defendant guilty of rape and armed robbery and the trial court sentenced him to serve consecutive 20-year sentences. This court affirmed the denial of defendant’s motion for resentencing in Giles v. State, 193 Ga. App. 93 (387 SE2d 5), and on November 23, 1992, defendant filed, pro se, a document entitled, “Petition to Correct Void and Illegal Sentences.” This direct appeal was the result of the denial of this petition. Held:

Defendant contends imposition of consecutive 20-year sentences was illegal because it was imposed by the trial court rather than the jury. This contention is controlled by this court’s holding in Giles v. State, 193 Ga. App. 93, supra, where it was held that the trial court was “authorized to fix sentences to either run consecutively or concurrently.” Id.

The trial court did not err in denying defendant’s “Petition to Correct Void and Illegal Sentences.”

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       “[Although habeas corpus would have been an appropriate remedy to determine the validity of a sentence, it is not necessarily an exclusive or sole remedy; such an action may be brought in the trial court.” Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425).


author: Blackburn, Judge.

text:
    A93A2244.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. BUTTS.
    (440 SE2d 218)
   Blackburn, Judge.

Appellee Robert Butts brought the underlying civil action against his employer, appellant Central of Georgia Railway Company (Central), to recover for injuries arising from a herniated disc which Butts alleges he sustained on two occasions as he attempted to open a window on a locomotive while working for Central. Butts’ action was predicated on the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq.; the Boiler Inspection Act, 45 USC § 23; and two regulations promulgated thereunder, 49 CFR §§ 229.23 (a) and 229.119 (d). The jury returned a verdict in favor of Butts for $759,555. Central appeals the jury award asserting five enumerations of error.

1. In its first enumeration of error, Central contends that the trial court erred in permitting Butts to introduce evidence which constituted evidence of “other transactions.” Specifically, two of Butts’ coworkers were allowed to testify as to Central’s general maintenance policies and conditions of the windows on GP-30 locomotives (the model involved in the subject incident), that they were generally difficult to open, and that sometimes it was necessary to beat them with a hammer or to push them open with one’s leg. Both co-workers were allowed to testify that the railroad, in their opinion, generally performed inadequate maintenance on its locomotive engines and finally one co-worker was allowed to testify that he occasionally had engines returned from the mechanical department with conditions unrepaired. Butts maintained that the evidence was admissible because maintenance was similar on all locomotives and the records detailing the maintenance and repair of the GP-30 locomotive engine on which Butts was injured had been destroyed by Central. Furthermore, the actual GP-30 locomotive had been sold for scrap and was unavailable for inspection.

“Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.” (Citations and punctuation omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (421 SE2d 555) (1992). The trial court did not abuse its discretion by allowing the testimony. Furthermore, Central waived any error by not objecting to the same testimony that was introduced through other witnesses. The second witness to testify, Central’s engine terminal foreman, testified that he was aware that Central had problems with defective windows on locomotives, particularly the GP-30 series and similar models. This testimony came in without objection well before Central’s counsel raised his objection to this line of inquiry with later witnesses. Therefore, Central waived its objection to this testimony. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (199 SE2d 881) (1973).

2. In its second enumeration of error, Central asserts that the trial court erred in denying its motion for directed verdict as to the applicability of 49 CFR § 229.119 (d). In relevant part, this federal regulation provides “[t]he cab shall be provided with proper ventilation. . . .” At trial, Butts contended that by operating a locomotive engine with a window which was difficult to open Central failed to provide a cab with proper ventilation. At the conclusion of the trial, Central moved for a directed verdict on this issue arguing that any violation of the regulation was not causally related to the injury sustained by Butts.

Central cites to Mosco v. Baltimore &c. R., 817 F2d 1088 (4th Cir. 1987), to support its argument that the ventilation regulation does not apply to the present case. However, the analysis in Mosco actually supports the application of federal regulations in determining violations of the Boiler Inspection Act. 817 F2d at 1090. The plaintiff in Mosco complained that his employer should have provided screens for the locomotive windows so that the rock which caused his injury would have been prevented from entering the cab through the window. The court determined that the Boiler Inspection Act “imposes on carriers only the duty to maintain the parts and appurtenances of their locomotives in safe and proper condition and the term ‘parts and appurtenances’ does not include every item of equipment that conceivably could be installed on a locomotive.” 817 F2d at 1091. Federal regulation requires proper ventilation; however, proper ventilation does not require a screen over the window. Id.

“A plaintiff need not establish that the defect — [the malfunctioning window] in this case — was the sole cause of injury. [Cits.] . . . [Cit.] Where there has been a failure of a required appliance, there is liability only where the failure of the appliance not only creates a condition under which, or an incidental situation in which the employee is injured, but where the defective appliance is itself an efficient cause of or the instrumentality through which the injury is directly brought about. [Cits.]” (Punctuation omitted.) Green v. River Terminal R. Co., 763 F2d 805, 810 (6th Cir. 1985). The only sources of proper ventilation on the locomotive were the windows. It follows that malfunctioning windows may not provide proper ventilation. Further, Butts was injured as he attempted to open the window to achieve proper ventilation on a hot August day in Savannah, Georgia. The trial court did not err in denying Central’s motion for directed verdict.

3. Central asserts that the trial court erred in permitting Butts’ economist to state a legal opinion of the proper method of calculating future wage losses. Dr. Coston was allowed to testify that he was familiar with a case decided by the U. S. Supreme Court and a case decided by the Eleventh Circuit Court of Appeals and that the method of calculation which he used was approved in those cases. Central’s counsel objected to the witness citing and misstating the law. The court overruled this objection. Contrary to Central’s contentions, the jury was made aware that the method Dr. Coston used to calculate present value was one of the methods that had been approved in the cases. Therefore, Central’s assertion that there was an inference that there was only one acceptable method is erroneous. Additionally, Central was not deprived of the right to cross-examine the witness with regard to other approved methods of present value calculations. Furthermore, there was no objection to the substance or conclusions of Dr. Coston’s testimony regarding Butts’ future wage loss.

4. In its fourth enumeration of error, Central asserts that the trial court erred in applying Georgia law to prohibit it from eliciting testimony regarding alternative methods of discounting future wage losses to present value. Central argues that substantive law issues of damages are governed by federal law in a FELA case.

On direct examination, Dr. Coston testified that Butts’ future wage loss, reduced to present value, had an economic value of $1,419,344.25. On cross-examination, Dr. Coston agreed that he would consider a United States Government 30-year treasury bond to be a safe investment. The court prohibited Central’s counsel from eliciting testimony from Dr. Coston concerning the interest income Butts would derive from investing the lump sum figure ($1,419,344.25). This court has specifically addressed and excluded this type of testimony in a FELA case. See CSX Transp. v. Levant, 200 Ga. App. 856 (410 SE2d 299) (1991), rev’d on other grounds, 262 Ga. 313 (417 SE2d 320) (1992) (rationale of Gusky v. Candler Gen. Hosp., 192 Ga. App. 521 (3) (385 SE2d 698) (1989), applied to FELA case). Furthermore, the trial court did not restrict Central’s right to cross-examine Dr. Coston regarding alternative methods of calculating the discount rate. What Central attempted to do was elicit testimony showing how much money someone could earn by taking an award of damages and investing it. This type of testimony is prohibited. Id.

5. Central contends that the trial court erred in denying its motion for mistrial based upon Butts’ circumvention of the trial court’s orders prohibiting testimony concerning Butts’ allegations of misconduct by Central’s investigators, testimony concerning the financial difficulties of other members of his family, and testimony that Central had paid the medical expenses he had incurred in the treatment of his injuries.

Decided December 9, 1993

Reconsideration dismissed January 4, 1994.

Miller, Simpson & Tatum, William E. Dillard III, for appellant.

Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, Beckmann & Pinson, Walter W. Ballew III, for appellee.

(a) Butts’ counsel asked Butts if Central had paid some of his medical bills, to which Butts responded, “yes.” However, a mistrial was not warranted as the trial court gave the jury curative instructions in which it informed the jury that the payment of any medical expenses was made without regard to liability and that the jury was not to conclude, because these expenses were paid, that the railroad admitted any liability. After the curative instruction, Central did not renew its motion for a mistrial or object to the instruction given. Therefore, Central’s enumeration is without merit. Kendrick v. Kendrick, 218 Ga. 460 (4) (128 SE2d 496) (1962); Seaboard System R. v. Taylor, 176 Ga. App. 847 (5) (338 SE2d 23) (1985).

(b) Butts testified that he had been forced to file bankruptcy, that his wife had been forced to take another job, and that his family “really just missed out on everything.” The trial court instructed the jury that the financial circumstances of any party were not at issue and that the jury should dismiss it from their minds. Again, Central neither renewed its motion for mistrial nor objected to the curative instructions given by the trial court. Therefore, this assertion of error is also without merit. Id.

(c) Central objects to Butts’ response to a question concerning the surveillance conducted by Central. Butts responded, “Oh. Yes, sir. The stories I could tell, but I guess the one that — ” at this point, Central moved for a mistrial. This testimony is the sum total of what the jury heard regarding Central’s surveillance of Butts. The question posed was proper as a surveillance tape was to be later introduced by Central and Butts did not mention any specific fact covered in Central’s motion in limine. The trial court correctly determined that Butts had not transgressed its earlier order and that no harm had been done.

Judgment affirmed.

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


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    A93A2502.
    ANTHONY v. THE STATE.
    (441 SE2d 70)
   McMurray, Presiding Judge.

Defendant, a resident of South Carolina, was charged, via Uniform Traffic Citation, with driving a moving vehicle in the State of Georgia while under the influence of alcohol to the extent that it was less safe for him to drive in violation of OCGA § 40-6-391 (a) (1). The case was tried before a jury and the evidence revealed the following:

At about 12:30 in the morning on June 15, 1992, Deputy Melvin Andrews of the Elbert County Sheriff’s Department was patrolling a business district outside Elberton, Georgia, when he observed a pickup truck “pulled off the road at Tucker’s Flea Market.” The deputy drove past the flea market and noticed that the truck was unoccupied. He also noticed that the door on the driver’s side of the vehicle was open and that the truck was parked within three or four feet of merchandise that was on display at the flea market. Deputy Andrews turned his patrol car to investigate, but the suspect vehicle was leaving the scene as he approached the flea market. The deputy followed and “called in the tag to see if [he] could get some information on who it belonged to[, but] it. . . just come back to Anthony Wholesale Co., it didn’t come back to an individual.” Deputy Andrews then radioed for assistance, stopped the suspect vehicle and asked the driver for “his driver’s license and insurance and [the driver] asked [the deputy] why was [he] stopping him and [Deputy Andrews] said, that, well, T was stopping you because you were down there at the flea market at a business after hours and was suspicious.’ ” The deputy identified the driver as defendant, detected a strong odor of alcohol and noticed that defendant “had glassy eyes.” The deputy then advised defendant pursuant to Georgia’s Implied Consent law and administered an “alcosensor” field sobriety test. The “alcosensor” indicated that defendant “was over the limit.” A State-administered breath test later indicated that defendant’s blood-alcohol concentration was .11 grams percent.

Defendant was found guilty of the offense charged. This appeal followed the denial of defendant’s motion for new trial. Held,-.

1. Defendant challenges the sufficiency of the evidence in his first and third enumerations, arguing there is no proof that he actually committed an unsafe act while driving.

A conviction under OCGA § 40-6-391 (a) (1) does not require proof that a person actually committed an unsafe act while driving. Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268). In order to sustain a conviction under this Code subsection, there must be sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive. Anderson v. State, 203 Ga. App. 118 (1) (416 SE2d 309).

In the case sub judice, the evidence revealed that defendant had a blood-alcohol concentration of .11 percent within less than an hour after operating a moving vehicle; that defendant “had glassy eyes” at the time of arrest and that a strong odor of alcohol permeated the vehicle defendant was driving shortly before his arrest. This evidence and testimony that defendant consumed alcoholic beverages before his arrest was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 40-6-392 (b) (3); Williams v. State, 190 Ga. App. 361 (1) (378 SE2d 886).

2. In his second enumeration, defendant contends the trial court erred overruling his motion to strike a prospective juror for cause because the venireman stated that he could not put aside his personal convictions if selected as a member of the jury.

The pertinent portion of the voir dire transcript reveals the following: “THE COURT: Mr. Davis, the legal test in this matter is whether you are able to listen to the evidence from the stand and the charge of the law that I will give you and make a fair and impartial decision. If you do not feel that you can make a fair and impartial decision, from listening to the evidence and applying the law and laying aside your personal convictions then you would be disqualified for this Jury. Do you feel that you can make a fair and impartial decision and put aside your personal convictions? . . . MR. DAVIS: I could not put aside my personal convictions. I could listen to the law and make a judgment, I could listen to the evidence and make a judgment.”

While Mr. Davis, the prospective juror, may have initially expressed some confusion or doubt as to his impartiality, he later affirmed that he could put aside his personal convictions and decide the case based solely on the applicable law and the evidence adduced at trial. “The venireman having indicated to the trial court that he could render a fair and impartial verdict based solely on the evidence presented in court the venireman was prima facie competent to serve as a juror in the case sub judice. Whether to strike a juror for favor lies within the sound discretion of the trial court. Under the circumstances of the case sub judice, we find no abuse of the trial court’s discretion. Harris v. State, 178 Ga. App. 735 (1) (344 SE2d 528); Foster v. State, 248 Ga. 409, 410 (3) (283 SE2d 873). This enumeration of error is without merit.” Durham v. State, 185 Ga. App. 163, 164 (2), 165 (363 SE2d 607).

3. Defendant contends the trial court erred in denying his motion to exclude the results of the State-administered breath test, arguing Deputy Andrews erroneously advised him at the time of arrest that his South Carolina driver’s license would be suspended pursuant to Georgia’s Implied Consent law (OCGA § 40-5-55) if he refused to submit to a test to determine the drug or alcohol content of his blood. Specifically, defendant contends the deputy failed to inform him that the Georgia Department of Transportation did not pursue (at the time of defendant’s arrest) suspensions of drivers licenses of out-of-state residents who reportedly refused to submit to the chemical test required by OCGA § 40-5-55 (a).

Any failure by the Georgia Department of Transportation in complying with the reporting requirements of OCGA § 40-5-51 pertaining to suspension or revocation of operating privileges of nonresident motorists does not diminish the fact former OCGA § 40-5-55 (c), in effect at the time of the offense in the case sub judice, evoked procedures at the time of defendant’s arrest for immediate suspension of any person’s driving privileges upon refusal to submit to the chemical test prescribed by OCGA § 40-5-55 (a). Consequently, since the trial transcript reveals that Deputy Andrews advised defendant at the time of arrest of his options pursuant to Georgia’s Implied Consent law, this enumeration provides no basis for excluding evidence of the results of the State-administered breath test.

4. Defendant contends the trial court erred in denying his motion to suppress, arguing that he was the subject of an illegal stop by Deputy Andrews.

“ ‘ “Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only unparticularized suspicion or hunch, 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909). United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.) United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).” (Punctuation omitted.) Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987). . . .

“ ‘ “(I)n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” (United States v. Smith, 799 F2d 704, 709 (11th Cir. 1986))’ Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63).” Brown v. State, 188 Ga. App. 184, 186 (372 SE2d 514). In the case sub judice, Deputy Andrews observed an unfamiliar pickup truck at an open-air flea market at 12:30 in the morning. The flea market was closed and was in an area near Elberton, Georgia, that had recently been plagued with a rash of theft-related crimes. The suspect vehicle appeared to be unoccupied, the door on the driver’s side of the vehicle was open and that the truck was parked within three or four feet of merchandise that was on display at the flea market. Deputy Andrews attempted to discern the driver of the pickup truck via computer search of vehicle registration records before stopping defendant, but was unable to match a person with the suspect vehicle. Under these circumstances, we cannot say that Deputy Andrews’ stop of the suspect vehicle was unreasonable. In fact, it is our view any reasonable law enforcement officer would have stopped defendant under the peculiar circumstances of the case sub judice. See Atkins v. State, 209 Ga. App. 70 (432 SE2d 661).

Decided December 14, 1993

Reconsideration denied January 4, 1994

John M. Clark, for appellant.

Gary L. Aston, Solicitor, for appellee.

The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1919.
    BOWDRY v. THE STATE.
    (440 SE2d 59)
   Pope, Chief Judge.

Defendant Anthony Bowdry appeals from his convictions for possessing and selling cocaine.

In his sole enumeration of error, defendant argues the trial court erred by allowing testimony concerning defendant’s prior similar offenses because the person who testified about the similar offenses was not a witness to the offenses and was familiar with the transactions only because of his duties as Chief Deputy Sheriff of McDuffie County. After conducting the requisite hearing, the trial court ruled that the State could present the testimony of the former chief deputy, now the current Sheriff of McDuffie County, concerning similar offenses by the defendant. The sheriff testified that in 1989, when the similar offenses occurred, he was the chief deputy in McDuffie County and one of his duties was to supervise and direct the activities of a drug task force working within the county. He had almost daily contact with the investigators in the task force and was kept informed of their activities in the area. During the similar transaction hearing, he testified he was not an investigator of those crimes, cf. Jackson v. State, 205 Ga. App. 827 (2) (424 SE2d 6) (1992), but he had worked closely with the undercover agent and knew that the offenses were similar. He was allowed to testify that the prior offenses, like this case, involved cocaine buys by an undercover agent from defendant in a high drug activity area from defendant. He identified certified copies of defendant’s convictions (guilty pleas) for selling and possessing cocaine on September 22, 1989, September 23, 1989, and October 19, 1989 and the convictions were admitted into evidence.

The witness acknowledged during the hearing on the evidence, however, that he did not have personal knowledge of what happened during the drug buys giving rise to the similar offenses and his only knowledge of what happened was based on hearsay. It follows, therefore, that the witness’ testimony concerning the similarity of the prior offenses was inadmissible hearsay, which was of no probative value to prove the similarity of the prior offenses. As he was the only witness called by the State concerning the similarity of the prior offenses, the similar transaction evidence was erroneously admitted. Brown v. State, 199 Ga. App. 18 (2) (404 SE2d 154) (1991).

Erroneous admission of similar transaction evidence, however, may be harmless. Faison v. State, 199 Ga. App. 447, 449 (1) (405 SE2d 277) (1991). In this case there was overwhelming evidence presented of defendant’s guilt. An undercover agent identified defendant as the man from whom she purchased cocaine on April 3, 1991. A forensic chemist from the Georgia State Crime Lab testified that the substance purchased by the agent from defendant was cocaine. Also, the sheriff testified that the morning after the undercover agent purchased cocaine from defendant, defendant called the sheriff, identified himself, admitted that the evening before he had been approached by a white female, admitted he had sold her cocaine and thought he “had messed up” because “he didn’t know whether she was an undercover agent.” The defendant did not refute the testimony of any of these witnesses. In this case, “the evidence of [defendant’s] guilt was overwhelming and error, if any, in the admission of [his] prior convictions would not mandate a reversal because it [was] highly probable that that error did not contribute to the guilty verdict.” (Citations and punctuation omitted.) Wheat v. State, 205 Ga. App. 388, 389 (2) (422 SE2d 559) (1992).

Judgment affirmed.

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

Decided January 5, 1994.

Jimmy D. Plunkett, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

         The undercover agent who purchased cocaine from defendant in the prior offenses was suspended from the drug task force after he was accused of planting drugs on a suspect.

       The undercover agent who purchased cocaine from defendant was not the same agent who made the previous undercover buys from defendant.


author: Cooper, Judge.

text:
    A93A1156.
    WHITE v. THE STATE.
    (440 SE2d 50)
   Cooper, Judge.

Appellant shot and killed the victim and was indicted for murder. He was convicted by a jury of aggravated assault and appeals from the judgment of conviction and the denial of his motion for a new trial. Appellant’s sole enumeration of error is the trial court’s failure to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner.

Involuntary manslaughter is the unintentional killing of a person “by the commission of an unlawful act other than a felony” (OCGA § 16-5-3 (a)) or “by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm” (OCGA § 16-5-3 (b)). A person who commits involuntary manslaughter by a lawful act in an unlawful manner is guilty of a misdemeanor. The evidence reveals that appellant, the victim and four others were at a friend’s trailer playing cards. Before the card game began appellant placed his gun on the floor behind him. Appellant and the victim began playing for money, and at the end of the game, appellant owed the victim four or five dollars. The testimony was conflicting about the events following the card game. The victim’s brother testified that the victim told appellant that appellant owed him four or five dollars and appellant replied “I don’t owe you nothing but this” and got his gun and shot the victim. Another person who was present in the trailer testified that the victim asked appellant when appellant was going to pay him the money and appellant took his gun, pointed it at the victim and shot him. Two other persons present in the trailer stated that as appellant was getting ready to leave, he picked up the gun and brought it in front of him to put in his pants when the gun fired striking the victim. Appellant testified that the gun went off accidentally while he held it in front of him to put it in his pants.

A firearms examiner with the State Crime Laboratory testified that the gun operated in either a single or double action mode. In the single action mode, the hammer part of the gun is pulled back and the person firing the gun must exert four pounds of pressure on the trigger to get it to fire. In the double action mode, the hammer part of the gun is not pulled back and the person firing the gun must exert ten pounds of pressure on the trigger to fire the gun. The firearms expert also testified that he tested the gun from both a single action and double action mode to determine whether it would accidentally discharge and he was unable to make the weapon discharge without pulling the trigger with the requisite amount of force.

Decided December 16, 1993

Reconsideration denied January 7, 1994

Johnson & Turner, E. Preston Johnson, Jr., for appellant.

We first address the State’s contention that appellant’s request for a charge on involuntary manslaughter was not timely. Appellant submitted a request to charge on lawful act-unlawful manner involuntary manslaughter but subsequently withdrew it during the charge conference held at the conclusion of the State’s case. However, the charge conference was continued to the next day, and at that time, appellant resubmitted his request for a charge on involuntary manslaughter. The trial judge heard argument about the charge and informed the parties of his decision not to give the charge prior to their closing arguments. We conclude that the request was timely, and the State’s argument to the contrary is without merit.

Appellant contends that he was entitled to a charge on lawful act-unlawful manner involuntary manslaughter because his defense was that the gun discharged accidentally. Specifically, he argues that the jury could have concluded that the lawful act was his possession of the firearm and that the manner in which he handled the firearm was unlawful. Appellant maintained throughout the trial that the gun discharged accidentally. He explained that while playing cards he may have kicked the gun causing the hammer to pull back, and then when he picked up the weapon to put it in his pants, his hand or finger may have hit the trigger causing it to fire. However, appellant failed to show that his possession of the gun was lawful. OCGA § 16-11-128 (a) provides that a person commits the offense of carrying a firearm without a license when he carries “outside of his home, motor vehicle or place of business, any pistol or revolver without having on his person a valid license. ...” The evidence is undisputed that appellant was neither at his home or place of business nor in his car at the time of the shooting, and there is also no evidence that appellant had a valid license on his person when the shooting occurred. Since there was no evidence that appellant was engaged in a lawful act at the time the victim was killed, the charge was not authorized, and the trial court did not err in refusing to give the charge. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976); Daniels v. State, 114 Ga. App. 264 (1) (150 SE2d 844) (1966).

Judgment affirmed.

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

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


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    A93A1730.
    THREATT v. THE STATE.
    (440 SE2d 61)
   Pope, Chief Judge.

Defendant Kimberly Threatt appealed to our Supreme Court from the superior court’s order denying her motion to withdraw her guilty plea, motion for disqualification and/or recusal and motion for reconsideration. Our Supreme Court transferred this case to our court. Defendant pled guilty to cruelty to children and false reporting of a crime. On September 25, 1992, defendant abandoned her seven-month-old daughter by placing her inside a city sewer and then reported to the police that the child had been kidnapped by three strangers. The child was found the next morning by neighborhood children in stable condition.

1. Defendant first argues that the trial court erred in denying her motion to declare Uniform Superior Court Rule 33.7 unconstitutional. “ ‘The Supreme Court’s refusal to review (defendant’s) constitutional challenge mandates the finding that (defendant’s) contentions of error on constitutional grounds are without merit. [Cit.]’ [Cits.]” Tootle v. State, 203 Ga. App. 497, 498 (417 SE2d 433) (1992).

2. Defendant contends the trial judge erred in denying her motion seeking his disqualification and/or recusal. The motion was based on certain comments the trial court made during defendant’s sentencing hearing on February 19, 1993. The motion was filed on March 3, 1993. Rule 25.1 of the Uniform Rules for Superior Courts requires that such motions be filed and presented to the judge not later than five days after the affiant first learns of the ground for disqualification. Defendant argues that her motion should be deemed timely because the transcript of the hearing was not available until March 1, 1993, and until it was available good cause existed for not filing the motion to recuse sooner. We do not agree. Both defendant (the affiant) and her counsel were present at the sentencing hearing and heard the comments upon which the motion was based. To hold that preparation of a transcript is good cause for delay in filing a motion for recusal would render meaningless the five-day filing requirement set forth in the rule, as transcripts would rarely be available within such a short period of time. There is no requirement that the supporting affidavit recite verbatim the comments made as long as the substantive or factual basis for the motion is made clear. The trial court correctly denied the motion as untimely. Mills v. State, 187 Ga. App. 79 (1) (369 SE2d 283) (1988).

3. Defendant argues the trial court erred by failing to allow her to withdraw her guilty plea. “OCGA § 17-7-93 (b) grants defendant an absolute right to withdraw a guilty plea ‘before judgment is pronounced.’ Orally announcing the sentence constitutes a pronouncement under that code section. Coleman v. State, 256 Ga. 77, 78 (1) (343 SE2d 695) (1986); State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). ‘After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.’ [Cit.]” Anderson v. State, 194 Ga. App. 395 (390 SE2d 637) (1990).

The record reveals that at the time defendant offered her guilty plea, the trial court ascertained that defendant understood the nature of the charges against her, the consequences of her guilty plea, including the constitutional rights she was waiving, and that the plea was not induced by coercion or promise but was voluntarily entered. It is also clear from the record that a negotiated plea arrangement had not been reached with the State and defendant was informed of the maximum sentence for the crimes to which she pled and she stated she understood she could be sentenced anywhere within that range of punishment.

(a) Defendant first argues that she should be allowed to withdraw her plea because when the trial judge orally announced her sentence he did not make clear the separate sentences for the felony and the misdemeanor charges to which she pled. The record reveals that when the trial court announced defendant’s sentence, she lost her composure and the trial court suspended the hearing. The remedy for any alleged error in sentencing is for the defendant to be sentenced again. Mullins v. State, 134 Ga. App. 243 (214 SE2d 1) (1975). Such an error in sentencing does not constitute a manifest injustice requiring the trial court to set aside defendant’s guilty plea.

(b) Defendant further argues that because the trial court did not announce the specific sentences for the two charges orally but set forth the sentences in written form, she was denied her right to be present during sentencing. We do not agree. On Friday, February 19, 1993, defendant pled guilty and the trial court immediately conducted her sentencing hearing. As we discussed above, the sentencing hearing was terminated because defendant lost her composure as soon as the trial court announced her sentence, and the trial court suspended the hearing at that time. On the next working day, February 22, 1993, the trial court issued the final disposition forms for each charge which showed the specific sentences imposed for the two charges to which defendant pled. Thus, the record does not support the defendant’s contention that she was not present for sentencing. Furthermore, as we discussed above, the remedy for sentencing errors is for the defendant to be resentenced. There is nothing in the record to indicate she seeks that remedy.

Decided January 10, 1994.

Gary Parker, Joseph Wiley, Jr., for appellant.

Douglas C. Pullen, District Attorney, Martha D. Dicus, Assistant District Attorney, for appellee.

(c) Defendant seemingly argues manifest injustice occurred because the trial court did not inform her that she could withdraw her guilty plea any time before oral pronouncement of sentence. Defendant does not cite any authority that requires the trial court to make such an announcement nor does she allege any harm she suffered as the result. See OCGA § 17-7-93; Uniform Superior Court Rule 33. As we stated above, defendant’s sentencing hearing was conducted immediately after she pled guilty. There was no indication during that hearing that defendant had changed her mind and wished to plead not guilty. Although the trial court did not specifically tell defendant she could withdraw her plea until the time he pronounced sentence, at one point during the sentencing hearing, the trial court stopped the proceedings and inquired if the defendant had considered a plea of not guilty and a plea of insanity and made it clear that he was inviting defendant to do so if she wished. Defendant’s counsel responded that those options were considered but because of the sensitive nature of the case, the defendant preferred for the trial court to consider the matter. In sum, defendant has not shown and our review of the record does not reveal that the trial court abused its discretion in denying defendant’s motion to withdraw her guilty plea.

Judgment affirmed.

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


text:
    A93A1331.
    RAMPEY v. JAY PONTIAC GMC TRUCK, INC.
    (440 SE2d 52)
   Cooper, Judge.

Appellant filed a lawsuit against appellee, alleging that she had been fraudulently induced into purchasing a used car from appellee and seeking general and punitive damages. Appellee moved for summary judgment on the ground that appellant’s fraud action was precluded because she did not rescind the contract and tender back the car. The trial court granted appellee’s motion for summary judgment and this appeal follows.

In August 1990, appellant, accompanied by her husband, went to appellee’s business to buy a used automobile. When asked whether the car in question had ever been wrecked, appellee’s salesman replied that it had not. Appellant purchased the car and signed a finance agreement with GMAC as well as a purchase contract which stated that the car was purchased “as is” and that no warranties were made as to the car. Soon after she bought the car, appellant experienced problems with it and subsequently discovered that the car had been damaged in an accident. Appellant’s attempts to resolve the matter with appellee were unsuccessful.

“[U]nder Georgia law, traditionally two actions have been available to a buyer in which to sue a seller for alleged misrepresentation in the sale. The buyer could affirm the contract and sue in contract for breach or he could seek to rescind the contract and sue in tort for alleged fraud and deceit. [Cits.]” City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974). “In an action for fraud, ‘if the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. This result obtains because where the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.’ . . . [Cits.]” American Demolition v. Hapeville Hotel &c. Partnership, 202 Ga. App. 107, 108-109 (1) (413 SE2d 749) (1991). Appellant, relying on Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (1) (411 SE2d 518) (1991), argues that a question of fact exists regarding her attempt to rescind the contract and that to return the car while she was still financially obligated to a third-party creditor, GMAC, was unreasonable. In Crews, the plaintiffs brought actions seeking to rescind their contracts for the purchase of used vehicles. This court held, “[o]ne seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible [cit.], or when to do so would be unreasonable. [Cits.]” Crews, supra at 590. We find that appellant’s reliance on Crews is misplaced, because pretermitting whether appellant attempted to tender back the car, it appears from her complaint that she has not elected to rescind the contract but has merely set forth a prayer for damages instead. See Jackson v. Paces Ferry Dodge, 183 Ga. App. 502 (3) (359 SE2d 412) (1987); see also Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521 (1a) (428 SE2d 426) (1993). Having elected only to seek damages under the contract, appellant is bound by the merger clause of the contract. See Carpenter v. Curtis, 196 Ga. App. 234, 237 (395 SE2d 653) (1990). Accordingly, the trial court’s grant of summary judgment was proper.

Judgment affirmed.

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

Decided December 17, 1993

Reconsideration denied January 11, 1994

Key & Kirby, L. Jack Kirby, for appellant.

Richard A. Childs, for appellee.


text:
    A93A1782.
    F. P. I. ATLANTA, LTD. v. PRICE.
    (440 SE2d 63)
   Cooper, Judge.

Appellant brought suit against appellee seeking damages for an alleged default of a residential rental agreement. On or about December 5, 1992, after appellee filed a timely answer to the complaint, appellant served its first request for admissions which incorporated certain allegations in the complaint, including appellee’s liability for the default and the amount of the alleged indebtedness under the terms of the rental agreement. Appellee responded to the request for admissions on January 8, 1993. Appellant then filed a motion for summary judgment upon the theory that no genuine issue of material fact existed because the matters set forth in its request for admissions were admitted by operation of law based on appellee’s failure to respond to the request within 30 days pursuant to OCGA § 9-11-36. At the hearing on appellant’s motion for summary judgment, appellee filed with the court a “Motion to Allow Responses to Request for Admissions if Same Deemed to Have Been Made Untimely,” ostensibly pursuant to OCGA § 9-11-36, in which appellee argued that if the response is untimely, it was only one day late; its admission would not unduly prejudice appellant; and the delay was the result of excusable neglect. Without specifically finding that response was untimely, the trial court held that any delay was due to excusable neglect and that appellant’s case would not be prejudiced by allowance of the response. Accordingly, the response was allowed as timely filed, and appellant’s motion for summary judgment was denied. The trial court certified its order for immediate review, and we granted appellant’s application for interlocutory appeal.

1. In its first enumeration of error, appellant contends the trial court erred in granting appellee’s Motion to Allow Responses to Request for Admissions if Same Deemed to Have Been Made Untimely due to appellee’s failure to make the necessary showing pursuant to OCGA § 9-11-36 (b) that the presentation of the merits would be subserved by allowance of the response as timely or by withdrawal of the admissions.

OCGA § 9-11-36 (a) (2) provides in part that if a party served with a request for admission does not serve a written answer or objection within 30 days of service of the request, the matter is deemed admitted. “Any matter admitted under [9-11-36] is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). “A court may grant a motion to withdraw (1) when the presentation of the merits will be subserved thereby and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining his action or defense on the merits. The burden as to the first prong is on the party moving to withdraw and the burden as to the second prong is on the respondent. . . . [As to the first prong, i]f the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.” Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 727-728 (1) (405 SE2d 764) (1991); OCGA § 9-11-36 (b).

The certificate of service attached to appellant’s request for admissions indicates that service of the request was accomplished by certified mail on December 5, 1992; however, the certified mail return receipt referenced in the certificate of service indicates that the date of delivery was December 8, 1992. Nonetheless, the matters set forth in appellant’s request were admitted by operation of law since no response was filed within 30 days of either date and the three-day rule is inapplicable. See OCGA § 9-11-6 (e); Favors v. Travelers Ins. Co., 150 Ga. App. 741 (2) (258 SE2d 554) (1979). Appellant’s subsequent response to the request for admissions could not be simply “allowed as timely filed” upon the trial court’s finding of excusable neglect. “Instead the trial court should follow the language of [OCGA § 9-11-36 (b)] in making its determination.” Moore &c. Partnership v. Stack, 153 Ga. App. 215, 219 (264 SE2d 725) (1980); Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198) (1982). Appellee cited OCGA § 9-11-36 (b) in her motion but has not made the requisite showing that the “ ‘denial of the request can be proved by admissible evidence having a modicum of credibility, and . . . the denial is not offered solely for purpose of delay.’ [Cit.]” Intersouth, supra at 728 (1). Thus, the trial court erred in granting appellee’s motion.

2. Appellant also enumerates as error the denial of its motion for summary judgment. Appellant argues that because the matters set forth in its request for admissions were deemed admitted, the evidence is uncontroverted that appellee executed the residential rental agreement, defaulted on the agreement and thereby incurred an obli-

Decided January 11, 1994.

Bruce A. Reynolds, for appellant.

J. Russell Mayer, for appellee.

gation to appellant in the amount of $2,179.66, as these assertions were included in the request. We agree. These matters should have been treated as admitted in the consideration of appellant’s motion for summary judgment. They are sufficient to prove appellant’s case. Moreover, appellee, responding to the motion for summary judgment, failed to produce any evidence of genuine issues of material fact to the contrary. Thus, there are no remaining issues for trial. See Bailey v. Bailey, 227 Ga. 55 (178 SE2d 864) (1970). “ ‘ “(W)here a party fail[s] to answer a request for admissions within the requisite time and the admissions [remove] all issues of fact, the other party [is] entitled to a grant of its motion for summary judgment.” (Cits.)’ [Cit.]” Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421, 422 (422 SE2d 76) (1992). Accordingly, the trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

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


text:
    A93A1891.
    SCHOICKET v. THE STATE.
    (440 SE2d 65)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of running a stop sign (Count 1), being in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe to drive (Count 2) and operating a moving vehicle with a blood-alcohol concentration of at least .10 grams within three hours after driving (Count 3). Defendant was found not guilty of failing to produce proof of insurance (Count 4).

The undisputed evidence reveals that defendant drove his employer’s van into a ditch sometime between 9:00 and 10:00 p.m. on October 4, 1991; that defendant submitted to a breath test at 12:05 a.m. on the night of the crash and that defendant’s blood-alcohol concentration was then .16 percent. Officer Charles Jeffrey Coleman of the Cobb County Police Department testified that he arrived on the scene at about 10:05 on the night of the collision; that he then noticed a strong odor of alcohol on defendant’s breath; that defendant was unsteady on his feet; that defendant’s speech was distorted and that defendant failed several field sobriety tests. Officer Coleman also testified that defendant had a freshly soiled appearance when he arrived on the scene and that the wrecked vehicle’s engine was then warm.

Defendant testified that the crash occurred after he left his employer’s home shortly after 9:00 p.m. and that he did not consume alcohol before the collision. Defendant explained that he had a newly purchased bottle of vodka in the van at the time of the collision; that he was shaken and disoriented by the crash and that he reached for the liquor immediately after the collision and “slugged down a . . . number of gulps of the vodka” before Officer Coleman arrived at the scene.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends in his first enumeration that the trial court erred in denying his motion to suppress the results of the State-administered breath test, arguing the test was unreasonably delayed in that there was no evidence that he was in actual physical control of a moving vehicle with a blood-alcohol concentration over .10 grams within three hours after driving. This argument provides no basis for suppressing the results of the State-administered breath test.

The trial court did not err in denying defendant’s motion to suppress.

2. In his second enumeration, defendant contends the evidence was insufficient to support the jury’s finding that he was in control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive.

“Driving an. automobile while under the influence of alcohol may be shown by circumstantial evidence. Lewis v. State, 149 Ga. App. 181 (254 SE2d 142) (1979).” Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793). In the case sub judice, Officer Coleman testified that he arrived on the scene at about 10:05 on the night of the collision; that a strong odor of alcohol then permeated defendant’s breath; that defendant was unsteady on his feet; that defendant’s speech was distorted and that defendant failed several field sobriety tests. Officer Coleman also testified that defendant had a freshly soiled appearance; that he touched the hood of the wrecked vehicle after he arrived at the collision scene and that the vehicle’s engine was then warm. This evidence and Officer Coleman’s testimony that he did not find a bottle of vodka at the scene of the collision (so as to corroborate defendant’s explanation of intoxication at the time of arrest) is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of operating a moving vehicle while under the influence of alcohol to the extent that it was less safe to drive in violation of OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Morris v. State, 172 Ga. App. 832, 833 (1), supra.

3. In his third enumeration, defendant contends the trial court erred in allowing Officer Coleman to testify (on redirect examination) that “it’s not probable” that defendant’s drunken condition was the result of post-collision ingestion of alcohol. This contention is without merit. Defense counsel opened the door to this line of inquiry by asking Officer Coleman on cross-examination that “it’s possibly a mistake that [defendant] drank prior to driving the vehicle, that’s possibly a mistake?” See Robinson v. State, 208 Ga. App. 528, 530 (3) (430 SE2d 830).

4. Defendant’s appellate counsel asserts the following in support of defendant’s fourth enumeration: “[T]he trial court erred in permitting non-expert witness (the Appellant) to testify in response to a hypothetical question. In the cross-examination of Appellant, the State repeatedly sought and was allowed to solicit opinion on alcohol tolerance from the Appellant. ... By allowing Appellant to testify on what is the average consumption of alcohol, the trial court allowed the Appellant to unwittingly hang himself before the jury.”

Defense counsel cites the following portion of the trial transcript in support of this enumeration: “[State’s attorney:] Well, when did you intend on drinking the vodka [which defendant said he purchased earlier in the evening before the collision]? A. I did not have any specific time intended. Q. That’s a lot of vodka to drink at one point, just gulping it down from a bottle, isn’t it? A. Excuse me? Q. That’s a lot of vodka to drink, gulping it down like you said you did from the bottle? A. Sure. Q. Would you say that you have a strong tolerance for alcohol? A. I don’t know yea or nay on that answer. Q. Why would you say that you don’t know yea or nay? A. Because I’m not — I don’t have any training to know what — I mean, what is a strong tolerance versus a low tolerance? Q. Do you have common sense? A. I hope so. Q. Then I’ll ask you again, do you have a strong or a low tolerance for alcohol? [Defense counsel:] Your Honor, the Defendant has answered that question the best he can. THE COURT: Overruled. . . .You need to answer it. THE WITNESS: I don’t — I assume it’s not strong or light. It’s average. [State’s attorney:] Well, what is average to you? A. Average to me is if you took, I guess, a couple hundred thousand people, added everything out and then divided it by the amount, that would be average. Q. Let me rephrase that. What kind of consumption of alcohol is average to you? [Defense counsel:] Your Honor, that calls for speculation as to what other people do or how much alcohol they can tolerate. There’s no way of knowing that. . . . THE COURT: I’m going to allow the question over objection. You probably need to state it again. [State’s attorney:] What do you consider average consumption? A. I guess two or three drinks. Q. A day, a weekend, a week, a month, a year? A. Well, you know, probably one or two nights a week. [Defense Counsel:] Your Honor, I’m going to object. That’s irrelevant. The issue before this Court is did the Defendant consume alcohol prior to driving the car. The average tolerance of people in general has no relevance to this matter. ... I agree that [defendant’s] tolerance, Your Honor, is relevant. I’m saying that the tolerance of the average person is not relevant. THE COURT: Well, he raised that point and I’m going to allow the examination on it. Go ahead.”

Decided January 11, 1994.

G. Wilson Jones, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Philip M. Goldstein, Assistant Solicitors, for appellee.

“The trial court enjoys a wide discretion in determining the admissibility of evidence. Lee v. State, 258 Ga. 762 (6) (374 SE2d 199) (1988); Hicks v. State, 256 Ga. 715 (13) (352 SE2d 262) (1987). Compare United Stated v. Metallo, 908 F2d 795 (11th Cir. 1990). We find no abuse of discretion here.” Spencer v. State, 260 Ga. 640, 645 (8), 649 (398 SE2d 179).

5. In his final enumeration, defendant contends his motion for directed verdict of acquittal “should have been granted ... on the grounds behind enumerations of error one and two.” This contention is without merit for the reasons stated in Divisions 1 and 2 of this opinion.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2573.
    A93A2594.
    AEGIS SECURITY INSURANCE COMPANY v. HIERS et al. LUMPKIN v. AEGIS SECURITY INSURANCE COMPANY.
    (440 SE2d 71)
   McMurray, Presiding Judge.

Aegis Security Insurance Company (“Aegis”) issued a mobile home insurance policy to Lowell Hiers, Dan Hiers’ father. Lowell Hiers is listed on the policy as the named insured. The policy covered a mobile home owned by Dan Hiers. It required the insured to give notice of an insurable accident “as soon as practicable.”

Dan Hiers lived in the mobile home with his two sisters. Lowell Hiers never lived in the mobile home. Dan Hiers shot James Lumpkin and Lumpkin filed a tort claim against Dan Hiers. Lowell Hiers learned about the shooting the day after it happened. Neither Dan Hiers nor Lowell Hiers notified Aegis about the shooting incident. Aegis ultimately learned about the shooting approximately 22 months after it occurred.

Aegis Security Insurance Company brought this declaratory judgment action against Lowell T. Hiers, Dan Hiers, James Lumpkin, Stanley Castleberry and Georgia Farm Bureau Mutual Insurance Company to determine whether it is obligated to defend a lawsuit brought against Dan Hiers by James Lumpkin. Aegis moved for summary judgment; so did Lumpkin. The motions were denied and the trial court certified Aegis’ motion for immediate review. We granted Aegis’ application for an interlocutory appeal. Aegis appealed in Case No. A93A2573; Lumpkin cross-appealed in Case No. A93A2594. Held:

Decided January 11, 1994.

Dillard, Bower & East, Bryant H. Bower, Jr., Robert W. Lamb, for Aegis.

Morris & Webster, Craig A. Webster, for Lumpkin.

Reinhardt, Whitley & Wilmot, Glenn Whitley, for Hiers.

Lowell T. Hiers, pro se.

Lowell D. Hiers, pro se.

Stanley F. Castleberry, pro se.

Aegis is entitled to summary judgment because Aegis did not receive timely notice of the shooting incident. Protective Ins. Co. v. Johnson, 256 Ga. 713 (1) (352 SE2d 760). The policy requires the insured to give Aegis notice of an insurable event as soon as practicable. Neither Lowell nor Dan offered any excuse for failing to notify Aegis about the shooting in a timely fashion. A delay such as that is unreasonable as a matter of law. Protective Ins. Co. v. Johnson, supra; Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1 (354 SE2d 644).

Judgment reversed in Case No. A93A2573; judgment affirmed in Case No. A93A2594.

Johnson and Blackburn, JJ., concur.