author: Deen, Presiding Judge.

text:
    A90A0244.
    LAWRENZ v. THE STATE.
    (391 SE2d 703)
   Deen, Presiding Judge.

Appellant Lawrenz pled guilty to a charge of theft by taking after having been apprehended for falsifying cash register receipts in the grocery store where she worked. The record reveals that the trial court determined, after a hearing and on the basis of the evidence before him, that the amount stolen, upon conservative calculation, was $44,000. The transcript shows that the trial court determined that the maximum amount the appellant would realistically be able to repay was $24,000 and, accordingly, set the amount of restitution at $24,000. Appellant, having been granted an out-of-time appeal, contends that there was insufficient evidence to authorize recovery of $44,000 in damages if the action below were a civil case, and therefore the trial court erred in requiring restitution in an amount ($24,000) derived from $44,000. Held:

1. As the State concedes in its brief, appellant is correct in stating that the maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. OCGA § 17-14-9; Garrett v. State, 175 Ga. App. 400, 401 (333 SE2d 432) (1985). OCGA § 17-14-10 further prescribes the factors that the trial court must consider in determining the “nature and amount of restitution”; see also Williams v. State, 180 Ga. App. 854, 856 (350 SE2d 837) (1986).

Scrutiny of the record in the instant case indicates that, even had appellant not plead guilty, there was ample evidence, both direct and indirect, attesting to appellant’s guilt and indicating the approximate amount taken. Her employer had videotaped her at her work station for three days prior to arrest, and the videotapes clearly showed her in the act of writing in “forgotten” items on at least one-third of the individual customers’ printed receipts; a similar percentage of the receipts recovered from her trash basket at the end of each of these days showed such alterations. A comparison of the store’s gross receipts during the period of appellant’s employment with gross receipts during the corresponding period for the previous year, as indicated by bank deposits, revealed a decrease corresponding to the amounts of daily and weekly losses extrapolated from the evidence of the videotapes and the altered printed receipts. Moreover, there was evidence of sizable personal expenditures by appellant in excess of those which she and her husband had formerly made, with no demonstrable source of the additional sums of money represented by those additional expenditures. Thus the evidence was sufficient to authorize the reasonable trier of fact to find appellant guilty beyond a reasonable doubt of unlawfully taking money in at least the amount determined by the trial court. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 5, 1990.

Lee R. Taylor, for appellant.

Roger G. Queen, District Attorney, for appellee.

The evidence was sufficient to support the trial court’s finding of $44,000 in damages not only on the ground that it was sufficient to authorize a finding of “guilt” beyond a reasonable doubt but because the amount was proven by a preponderance of the evidence. Guilt was not at issue here since defendant pled guilty as charged of theft by taking $1,500. The statutes make it clear that restitution is based on the victim’s civil damages. See OCGA §§ 17-14-2 (2) and 17-14-9. Thus the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence. Compare Garrett v. State, 175 Ga. App. 400, supra.

The record shows that in determining the nature and amount of restitution due, the trial court considered the evidence before him and acted in compliance with the requirements of OCGA §§ 17-14-2; 17-14-8 (b); 17-14-9; and 17-14-10. We find no error in the proceedings below.

2. We remind appellant’s counsel of the requirements of Court of Appeals Rule 15 (a) (2) regarding content of appellate briefs.

Judgment affirmed.

Pope and Beasley, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A2345.
    SPIVEY v. BOARD OF EDUCATION OF SAVANNAH & CHATHAM COUNTY.
    (391 SE2d 783)
   Banke, Presiding Judge.

This is an appeal from a grant of summary judgment to the defendant in a slip-and-fall action.

The plaintiff fell while descending a concrete or stone stairway at the front entrance to a public elementary school operated by the defendant. She had been called to the school to pick up her son, a third grader who had been placed “in detention” due to misconduct and had thus missed his ride home on the school bus. There was no handrail on the stairway, and as it had been raining that day the steps were wet. The plaintiff testified that she realized the steps were slippery as she was ascending them upon entering the school and that upon exiting the building with her son she consequently attempted to use the brick wall and ledge at the side of the stairway to support herself. She stated that her feet nevertheless “flew out from under” her as she was descending the steps, despite her efforts to be careful.

In an accident report submitted to the school following the incident, the plaintiff indicated that she felt the stairway was defective due to the lack of a handrail and the absence of “safety (non-skid) strips” on the steps. During discovery, she obtained a copy of an incident report concerning a similar accident which had occurred on the same steps under similar weather conditions some three years earlier. The defendant offered no evidence tending to show that the condition of the steps had changed since that time; nor, in fact, did it offer any independent evidence at all concerning the condition of the steps. Rather, in support of its motion for summary judgment, it relied solely on the plaintiff’s account of the incident. Held:

“In order to establish a right of recovery against [an owner or occupier of land] for negligently allowing a hazardous or defective condition to exist on the premises, a plaintiff-invitee must prove that the owner had superior actual or constructive knowledge of the existence of the condition and of the danger presented thereby. [Cits.] However, to prevail on motion for summary judgment, the defendant in such a case, as movant, has the burden of proof and thus must establish the absence of such superior knowledge on its part, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. [Cits.]” Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986).

The defendant contends that the lower court’s ruling in this case is supported by a line of cases standing for the proposition that “[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. American Legion Post, 189 Ga. App. 610, 612 (376 SE2d 698) (1988) (upholding summary judgment against plaintiff whose foot slipped off exit ramp which she had traversed numerous times). Accord Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981) (upholding summary judgment against plaintiff who slipped on loose gravel in unpaved parking lot); Dyer v. Joe Rigatoni’s of Atlanta, 191 Ga. App. 473 (382 SE2d 193) (1989) (upholding summary judgment against restaurant patron who slipped on paper streamer while descending stairway during New Year’s Eve party); Miolen v. Edd Kirby Chevrolet, 189 Ga. App. 282 (375 SE2d 266) (1988) (upholding summary judgment against plaintiff who slipped on stairway due to alleged poor lighting conditions of which he was concededly aware); Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988) (upholding summary judgment against plaintiff who slipped on rounded edge of tile step). The defendant also relies upon a line of cases holding that “ ‘ “[t]he risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect to anticipate. [Cits.]” ’ ” Layne v. Food Giant, 186 Ga. App. 71, 71-2 (366 SE2d 402) (1988).

We do not find these cases to be controlling in the present situation for two reasons. First, it may be inferred from the plaintiff’s testimony that the steps on which she fell were so slippery due to the rain that they were dangerous to negotiate even in the exercise of extreme caution, a circumstance not present in the preceding cases. Cf. Langley v. Ellman’s, Inc., 143 Ga. App. 16 (237 SE2d 415) (1977) (defendant’s evidence that “no-skid” wax was used on floor held insufficient to support grant of its motion for summary judgment in face of plaintiff’s testimony that she slipped as if she were “on ice”). Second, there was no evidence in the foregoing cases, as there is in the present case, that the defendant had been notified of the prior occurrence of a similar fall at the same location. While the defendant cites evidence that alternate exits were available to the plaintiff, there was no showing that such exits were readily accessible to her or that they would have been less dangerous to use than the main entrance to the building. Cf. Atkinson v. Kirchoff Enterprises, supra.

“ ‘ “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question.” (Cits.)’ [Cit.]” Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154) (1989). Construing the evidence of record in this case in favor of the respondent-plaintiff, as we are required to do, we are unable to conclude as a matter of law that she voluntarily assumed the risk of using the steps, notwithstanding her admitted awareness prior to exiting the building that the steps were slippery and possibly dangerous. We accordingly hold that the trial court erred in granting the defendant’s motion for summary judgment.

Decided February 23, 1990

Rehearing denied March 6, 1990.

Herndon & Chestnut, Herbert J. Chestnut, for appellant.

Stanley M. Karsman, Sharie S. Miltiades, for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Birdsong, Judge.

text:
    A90A0088.
    STEPHENSON v. WILDWOOD FARMS, INC.
    (391 SE2d 706)
   Birdsong, Judge.

Appellant, George Stephenson, appeals from the default judgment denying his motion to open default and further denying his motion for trial by jury.

Suit was brought against appellant and co-defendant, Ronnie Owens, for deliberately killing appellee’s full blooded Chianina bull; said act being done by defendant Owens by using a firearm belonging to appellant in appellant’s presence and under his direction. Following entry of default judgment against appellant, appellee voluntarily dismissed, without prejudice, this action in regard to defendant Owens.

Appellant’s sole enumeration of error is that the trial court erred in denying his right to a jury trial under OCGA § 9-11-55 (a). Held:

1. Appellee’s motion to dismiss appeal is denied.

2. OCGA § 9-11-55 (a) pertinently provides that if the case remains in default after the fifteen-day grace period and if the action is one ex delicto or involves unliquidated damages, “the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury . . . provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.” (Emphasis supplied.)

Pretermitting the question whether appellant was denied his right to trial by jury under OCGA § 9-11-55 (a) is the question of whether appellant tendered a legitimate demand for a jury trial of the issue as to damages. We find he did not.

Examination of the record in its totality reveals that appellant included a demand for trial by jury as to the entire proceedings in his belated answer, and that he used this demand, during the subsequent hearing, in support of his motion for opening of default. Incidentally, we note, however, that since the trial judge denied appellant’s motion to open default and to file answer, as therein prayed, the purported filing of the answer by the clerk of courts was a nullity.

At the hearing, appellant’s counsel, stated: “We have requested a trial by jury. . . . There is a codefendant in this case. . . . This case would have to go to a trial anyway. . . . This is also an unliquidated damages case. Case law is clear that in unliquidated damages case that the [defendant, even in default, has a right to a jury trial on the issue of damages. . . . [W]e . . . contend that we would be going into court, if the default were not opened, with one [defendant who would be arguing the issue that he was not liable and the other [defendant . . . unable to argue that he was not liable because of the default and would be arguing the issue of damages. Therefore, there would be a trial necessary in this case in any event.” (Emphasis supplied.)

Examining the record in its entirety, we find that appellant merely; informed the trial court of its right to a jury trial on the issue of damages, and did not at any time make a specific demand, within the meaning of OCGA § 9-11-55 (a), for a jury trial of the issue as to damages. Since a demand for jury trial of the issue as to damages was never made an issue before the trial court, no question is presented for appellate review. See Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783-784 (321 SE2d 110).

Assuming arguendo, such a demand could be construed from an examination of the trial record in toto, appellant still is not entitled to relief. The record reflects that at the time of the trial court’s ruling, denying the motion to open default, appellant failed to comply with the minimum requirements of OCGA § 9-11-46 (a). “As defendant failed to make any objection when the judge made the . . . rulings . . . this ground will not be considered. [Cits.] [OCGA § 9-11-46 (a)] does not exempt a party from voicing some objection to remarks of this kind when the party has an opportunity to object.” Sancken Assoc. v. Stokes, 119 Ga. App. 282 (2) (166 SE2d 924). Thus, at every turn of these proceedings appellant’s own procedures contributed to the ultimate ruling of which he complains. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Rush v. Southern Property Mgmt., 121 Ga. App. 360 (2) (a) (173 SE2d 744).

For each of the aforesaid reasons we find appellant’s enumeration of error to be without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided March 6, 1990.

Brace W. Luquire, for appellant.

Virgil L. Brown, Bentley C. Adams III, for appellee.


author: Pope, Judge.

text:
    A89A1801.
    U. S. XPRESS, INC. v. W. TIMOTHY ASKEW & COMPANY.
    (391 SE2d 707)
   Pope, Judge.

This case began with the claim of Jackson Sumner & Associates against appellee W. Timothy Askew & Company (hereinafter Askew) for premiums owed on a policy of insurance issued to U. S. Xpress, Inc., and which was procured by Askew. In turn, Askew filed a third-party complaint against U. S. Xpress for indemnification for any judgment which might be entered against it and for unpaid commissions on the policy plus attorney fees and interest. Subsequently, U. S. Xpress defaulted by failing to file a timely answer. The trial court refused to open the default and entered judgment in favor of Askew. U. S. Xpress now appeals the denial of its motion to open default and the entry of default judgment against it. Held:

“OCGA § 9-11-55 (b) contains three grounds for opening default: providential cause, excusable neglect, and where the judge from all the facts determines that a proper case has been made. [Cits.]

“Generally, whether the trial court opens a default is a matter resting within its sound discretion, but for the relief to be granted, subsection (b) requires that there be a motion, a meritorious defense, a legal excuse for late filing, and payment of costs.” Barone v. McRae & Holloway, 179 Ga. App. 812, 814 (348 SE2d 320) (1986).

In the case before us, U. S. Xpress argues that excusable neglect has been shown in that its failure to file its answer was a result of a mistake in the office of its attorney coupled with the attorney’s busy trial schedule. We do not agree. “The neglect of the attorney was the neglect of the client, and furnished no reason for setting aside the judgment.” Martin v. Parham, 14 Ga. App. 257 (2) (80 SE 674) (1914). Accord Rahal v. Titus, 110 Ga. App. 122, 129 (2) (138 SE2d 68) (1964). “The press of business ... is no ground to open a default.” Snow v. Conley, 113 Ga. App. 486, 489 (148 SE2d 484) (1966). “The discretion of the trial court in opening a default and permitting defendant to plead will not be interfered with by the appellate courts unless manifestly abused, to the injury of the plaintiff. [Cits.] We do not, as [U. S. Xpress] urges, convert this to a right to have default opened unless prejudice to plaintiff is shown. Upon review of the circumstances, we cannot conclude as a matter of law the court’s denial of the request to open the default was a manifest abuse of discretion. [Cit.]” Barone v. McRae & Holloway, supra at 814-815.

Decided March 6, 1990.

Cook & Palmour, Bobby Lee Cook, for appellant.

McLain & Merritt, Howard M. Lessinger, Bauer, Deitch & Raines, Gerald B. Kline, George R. Ference, for appellee.

We are not persuaded by U. S. Xpress’s argument that the time for the filing of its answer was extended by the filing of Askew’s amendment correcting the misnomer, U. S. Express, Inc., that it originally used to identify U. S. Xpress, Inc. The argument is that misnomers must be amended by application of OCGA § 9-10-132 and that this Code section requires a motion to effect the amendment. In this case, Askew simply filed an amendment as of right pursuant to OCGA § 9-11-15.

Although in its brief, U. S. Xpress argues that its proper name is U. S. Xpress of Nevada, Inc., we note that in its answer and in a letter from its counsel to Askew’s counsel, it affirmatively states that its name is U. S. Xpress, Inc. It also argues in its brief that U. S. Express, Inc., is an existing corporation wholly different from itself. However, no evidence to this effect appears in the record and we cannot consider statements in briefs as matters of record. York v. Miller, 168 Ga. App. 849 (310 SE2d 577) (1983). However, the record does show that the president of U. S. Xpress was personally served at its principal place of business and that it was clear to U. S. Xpress that the suit was directed to it and involved it. Both OCGA § 9-10-132 and OCGA § 9-11-15 allow a party to correct a misnomer. Section 9-10-132 is broader than § 9-11-15 in that it applies to “writs, pleadings, or other civil judicial proceedings” and § 9-11-15 applies only to pleadings in civil proceedings. To the extent that these two sections are inconsistent, the latter expression of the legislature, § 9-11-15, controls. Nash v. Nat. Preferred Life Ins. Co., 222 Ga. 14 (3) (148 SE2d 402) (1966). Where a party named in a complaint is reasonably recognizable as a misnomer for the real party in interest, the misnomer may be corrected by amendment to the pleadings pursuant to § 9-11-15. Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983). Thus, it was not necessary for Askew to get leave of court to amend the misnomer. Because the Civil Practice Act does not require a party to respond to an amendment to a complaint, OCGA §§ 9-11-12 (a) and 9-11-15 (a), and because U. S. Xpress knew that it was the real party denominated by the misnomer, it follows that its duty to respond with an answer arose upon service of the third-party complaint and was not extended by the amendment.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A89A1862.
    WEBB et al. v. RUSHING et al.
    (391 SE2d 709)
   Cooper, Judge.

Appellants brought suit against appellees, alleging fraudulent concealment and misrepresentation regarding termite damage and roof defects in the sale of a house. Summary judgment was granted to the appellees and this appeal followed.

Prior to closing on the sale, appellants conducted two visual inspections of the residence. On the first visit, appellants viewed the complete interior, including the roof and attic. They found no evidence of insect infestation or water or structural damage inside. However, they did discover a warped, discolored area on the ceiling of the porch, which Mr. Rushing identified as a leak, the only leak in the roof. Following that initial visit, the parties agreed on a purchase price and appellants, though aware of the leaks on the porch, signed a document certifying their inspection and their judgment that the house was in good working order, the roof was water tight, and there were no broken panes.

Between the two visits, an exterminator was hired to provide a termite inspection letter. He discovered and treated a “minor” infestation of subterranean termites, but reported that the house was free of other wood destroying insects or fungus, structural damage, or rotten timbers. During this interim, a Veterans Administration appraiser also inspected the house and found no damage.

By the second visit, Mr. Rushing had repaired the porch leak, which the appellants re-examined, as well as the rest of the house. They signed two inspection documents prepared by the exterminator reporting his findings. The second document, reflecting the results of a re-inspection after treatment, recited no active infestation or damage.

Shortly after appellants moved in, the den roof leaked during a storm. They then noticed a patch in the roof in the area of the leak. When Mr. Rushing was contacted, he remembered there once had been a leak in the den. Subsequently, more leaks developed, most of which have gone unrepaired. Appellants also discovered termites in the kitchen and den. An exterminator’s investigation revealed insect infestation and damage to the den floor, the subflooring, and the frame and jambs of the entrance door. It was also apparent that some of the den floor tiles had been patched and structural repairs were made in other areas of the house during the thirty-three years the appellees resided there.

1. Appellants’ contend in their first enumerated error that the trial court erred in determining that the appellants presented no evidence concerning appellees’ knowledge of pest damage.

“[I]n a fraudulent concealment action the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed. [Cits.] . . . There must he some evidence of the silent party’s actual knowledge that the defect exists at the time of the sale from which his ‘moral guilt’ in concealing it can be inferred. [Cits.]” Lively v. Garnick, 160 Ga. App. 591, 593 (287 SE2d 553) (1981).

The record reveals that appellees occupied the home for thirty-three years. During those years, various repairs were made. There is no indication that prior to the completion of the exterminator’s inspection appellees knew of any pest infestation or damage. Appellants urge the court to infer actual knowledge from the repairs which they allege were made to conceal damage. The trial court found, however, and we agree, that at best this knowledge would be constructive, which is insufficient to support an action for fraud.

2. Appellants contend the court erred in determining that they presented no evidence concerning appellees’ affirmative concealment of roof leaks. They maintain that they justifiably relied on the representation made by Mr. Rushing concerning the roof. The buyer must prove, however, “that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect ‘could not have been discovered by the buyer in the exercise of due diligence . . . .’ [Cit.]” Lively, supra at 593.

The trial court found that appellants’ reliance was misplaced by virtue of their knowledge of the porch leak and their failure to inspect the roof more extensively themselves or to hire an expert to do so. We agree that knowledge of the porch leak demanded further inquiry by the appellants. “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties.” Goldman v. Hart, 134 Ga. App. 422 (3) (214 SE2d 670) (1975). Appellants are, therefore, chargeable with the knowledge of the roof’s actual condition and could not have relied justifiably on Mr. Rushing’s statement.

3. Appellants contend the trial court erred in granting appellees’ motion for summary judgment.

“The decisive question in determining the propriety of the grant of summary judgment is whether appellee has carried the burden imposed by OCGA § 9-11-56 in showing the absence of any genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. ‘The five elements of fraud and deceit in Georgia are: (1) false representation made by the defendant; (2) scienter; (3) an extension to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff. (Cits.)’ ” Brown v. Rowe, 178 Ga. App. 575 (2) (344 SE2d 245) (1986).

Decided March 6, 1990.

Oldfield & Wilson, William G. Cromwell, for appellants.

Jones, Bordeaux & Associates, H. Gregory Fowler, for appellees.

Appellees’ evidence pierced the allegations of appellants’ pleadings and appellants have not raised questions of fact as to the elements of scienter relative to pest infestation and justifiable reliance relative to roof defects. Accordingly, the trial court correctly determined that the appellees were entitled to summary judgment. Brown, supra.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A89A1869.
    MERRIFIELD v. THE STATE.
    (392 SE2d 725)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of two counts of selling cocaine and one count of trafficking in cocaine. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. The three crimes occurred over a four-day period. Each involved the sale of an increasingly greater quantity of cocaine to the same undercover officer. The negotiations preceding each sale were similar and all three sales were eventually consummated at the same location. Each sale was arranged through and made by an accomplice rather than by appellant directly. However, the accomplice testified that on all three occasions the cocaine that he sold to the officer had been supplied by appellant. Appellant concedes that, as to the third and final sale, the accomplice’s inculpatory testimony was sufficiently corroborated. As to the first two sales, however, appellant urges that the accomplice’s inculpatory testimony was not corroborated and that his convictions for those two sales must, therefore, be reversed.

“ ‘ “The conduct of a defendant before, during the time of, and after the commission of a crime may be considered by the jury in establishing his intention and his participation, to determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction. This may be done by circumstantial as well as by direct evidence.” ’ [Cit.]” Jackson u. State, 178 Ga. App. 378 (343 SE2d 122) (1986). Such corroborating conduct includes the defendant’s commission of similar transactions which “ ‘were clearly interwoven and linked (connected) with the facts of the crime charged. . . .’” (Emphasis in original.) Perryman v. State, 63 Ga. App. 825, 827 (12 SE2d 392) (1940). See also Jackson v. State, supra. The three sales of cocaine at issue in the instant case were clearly interwoven and linked, occurring as they did over a short span of time and under almost identical circumstances. It is clear the third and final sale, the sufficient corroboration of which is undisputed, would have been admissible as probative corroborating evidence had the first two sales each been tried separately. Jackson v. State, supra. Therefore, it would be anomalous to hold that that same evidence would not be admissible and probative for the same purpose simply because all three sales were tried jointly rather than separately. Accordingly, we hold that the corroborated testimony of the accomplice as to appellant’s participation in the third and final sale was sufficient to corroborate the accomplice’s testimony as to appellant’s participation in the two other sales and that the evidence was sufficient to authorize a rational trior of fact to find appellant guilty of all three charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. At the time of his arrest after the third and final sale, the accomplice had a small packet of cocaine in his possession. The accomplice testified that, when he met with appellant to pick up the cocaine that was to be sold to the undercover officer, appellant had given him the packet. Urging the State’s failure to comply with Rule 31.3 of the Uniform Rules for the Superior Courts, appellant objected that this testimony concerning his giving of the packet of cocaine to the accomplice was inadmissible evidence of his commission of a separate similar crime. The overruling of this objection is enumerated as error.

Under the circumstances, “we find that the alleged similar transaction evidence was part of the res gestae of the crimes charged. Consequently, the trial court did not err in allowing the State to introduce this evidence at trial. [Cit.]” Williams v. State, 182 Ga. App. 849 (357 SE2d 301) (1987).

3. On direct examination of the accomplice, the State established that it had made a deal with him for his testimony against appellant. Four counts of violating the Georgia Controlled Substances Act had been reduced to two and he had pled guilty to those two counts and received a sentence of two years of incarceration which he was then serving. On cross-examination of the accomplice, appellant was allowed to pursue this topic. Appellant was not, however, allowed to ask the accomplice if he had been told when he could expect to be released. The trial court’s refusal to allow this question to be posed to the accomplice is enumerated as error.

Decided March 6, 1990.

Harrison & Harrison, Samuel H. Harrison, for appellant.

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

The State’s deal with the accomplice and the sentence that he received as the result of that deal were presented to the jury. Obviously, the State had no influence on the accomplice’s actual release date. That date would be determined by the accomplice’s own behavior during his incarceration. “The trial court appropriately exercised its sound discretion to determine the extent of cross-examination when the questions left the area [of the State’s deal for the accomplice’s testimony] and went to [his actual date of release].” Baptiste v. State, 190 Ga. App. 451, 454 (3) (379 SE2d 165) (1989).

Judgments affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1 and 2 and in the judgment.


text:
    A89A1988.
    THE STATE v. GRIMES.
    (392 SE2d 727)
   Cooper, Judge.

The State brings this appeal pursuant to OCGA § 5-7-1 (1) from the trial court’s dismissal of the misdemeanor criminal trespass charge filed against appellee. We affirm.

According to the trial court’s order, “[o]n March 15, 1989, Defendant was arraigned on the charge of criminal trespass. On April 18, 1989, the case was called for trial. The Court granted the State’s motion for continuance and the State was placed ‘on terms.’ The case was reset for trial on June 1, 1989, and the State was not ready so the Court dismissed the charges against the Defendant.”

A trial court is authorized to dismiss accusations and indictments. See OCGA § 5-7-1 (1). Citing State v. Cooperman, 147 Ga. App. 556 (249 SE2d 358) (1978), the State maintains that the trial court had no authority to dismiss the charge against appellee before issue was joined and evidence heard. In Cooperman, however, the trial court entered judgments of acquittal before issue was joined, in effect dismissing the accusations with prejudice. See also special concurrence in State v. Owens, 189 Ga. App. 308 (375 SE2d 656) (1988). In the case at bar, the dismissal did not amount to a dismissal with prejudice. Therefore, the State may file another accusation against appellee prior to the expiration of the period of limitation and prosecute him on that accusation. See Callahan v. State, 179 Ga. App. 556 (1) (347 SE2d 269) (1986). The trial court has a right to keep its calendar and determine the order in which cases are tried. OCGA § 17-8-1; State v. Jessup, 187 Ga. App. 429 (370 SE2d 489) (1988) (physical precedent only). The State cannot deny the trial court its right by not being prepared when the case is called and, so long as the dismissal does not amount to an acquittal, or a dismissal with prejudice, there is no error.

Decided March 6, 1990.

James L. Webb, Solicitor, Lee O’Brien, Ural D. Glanville, Helen A. Roan, Assistant Solicitors, for appellant.

Leon Grimes, pro se.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A2026.
    F & F COPIERS, INC. v. KROGER COMPANY.
    (391 SE2d 711)
   Beasley, Judge.

F & F Copiers appeals from the grant of Kroger’s motion for summary judgment.

In February 1985 the parties entered into a “Service Agreement” for F & F to supply and maintain coin-operated copy machines to designated Kroger stores in certain cities in Georgia. The contract wás physically prepared by Kroger but the parties mutually negotiated it, each participating by supplying clauses supplementing the standard terms and discussing each term. The agreement was for the three-year period February 18, 1985, through February 17, 1988. The consideration was 1,000 (later reduced to 750) free copies monthly to each Kroger store plus 20 percent commission to Kroger on “all paid for copies.”

The final item in the contract was: “This agreement shall continue in effect with the right of either party hereto to cancel same by delivering to the other written notice to that effect at least thirty (30) days prior to discontinuance of service. This agreement supersedes any and all prior agreements.” [Emphasis in original.] Some of the other terms called for commissions to be received by Kroger not later than the tenth day of the following month, with failure to account by that date constituting violation and automatic 30-day termination notice to F & F. Thirty-day notice to Kroger of F & F’s intent to transfer interest in the business, with a right in Kroger to terminate the agreement within 30 days if it deemed a transfer of interest not in keeping with its guidelines, removal or relocation of a copier, once installed, to be upon mutual agreement.

Under the contract approximately 52 stores were furnished with copiers. Kroger received its last commission check in April 1986. On October 31 Kroger sent F & F a 30-day notice “for cancellation and removal” of copiers from ten named stores under “Phase I of its conversion to a Kroger-owned program.” F & F complied and Kroger followed with a letter dated November 4, “for cancellation and removal” as to ten other stores under “Phase II.” F & F also complied with that notice but on November 18 wrote Kroger that it disagreed that Kroger could terminate the contract, contending instead that the contract was for a three-year term and the thirty-day cancellation provision only applied following expiration of that period.

F & F sued Kroger the following April, for contract breach without just cause. In July Kroger notified F & F to remove all remaining copiers, or Kroger would consider them in trespass. F & F removed the copiers.

After discovery, Kroger moved for summary judgment and F & F moved for partial summary judgment. The latter was denied and the former, granted.

F & F’s position is that the contract encompassed a three-year period and only after expiration did the 30-day cancellation notice activate. Kroger’s position is that the notice provision was effective at any time during the course of the contract and permitted unilateral termination by either party.

1. “Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains.” (Emphasis in original.) Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986). “[A] contract is not ambiguous even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” Taylor v. Career Concepts, 184 Ga. App. 551, 553 (2) (362 SE2d 128) (1987). It is the intention of the parties at the time the contract is made which governs. OCGA § 13-2-4. Armistead v. McGuire, 46 Ga. 232 (1872). The court must construe the contract, even in the presence of possible ambiguity, OCGA § 13-2-1, but, no construction is permissible where the contract language is “plain, unambiguous and capable of only one reasonable interpretation.” Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 861 (338 SE2d 63) (1985).

The contract is not one of adhesion because it was not prepared by one in a superior position or couched in language chosen solely by one party, but with input from two relatively evenly matched bargaining units. Gans v. Ga. Fed. Savings &c. Assn., 179 Ga. App. 660, 664 (2) (347 SE2d 615) (1986); Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 369 (203 SE2d 587) (1973). Compare White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 208 (303 SE2d 746) (1983); Porubiansky v. Emory Univ., 156 Ga. App. 602, 608 (275 SE2d 163) (1980) (physical precedent only).

Decided March 6, 1990.

Daniel F. Byrne, for appellant.

Hansell & Post, Mary A: Prebula, for appellee.

The ultimate rule of contract construction is to ascertain the intention of the parties, OCGA § 13-2-3, which is accomplished by a consideration of the entire contract. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353 (160 SE2d 659) (1968). “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. . . .” OCGA § 13-2-2 (4). The language used by the parties is of primary consideration in ascertaining their intention. Romine, supra at 353; Goff v. Cooper, 110 Ga. App. 339, 343 (138 SE2d 449) (1964).

This contract states unequivocally that its terms are for a specific three-year period. The ninth and last term provide for a thirty-day notice of cancellation. If the parties intended the contract to extend past the three years on a thirty-day notice contingency it could have so stated; but such is absent. Absent that, and considering the whole, the contract contains a right for either party to cancel upon notice.

There is no merit in F & F’s contention that Kroger could not effect a piecemeal termination. A contract may be partially terminated (J. R. Watkins Co. v. Brewer, 73 Ga. App. 331, 343 (36 SE2d 442) (1945)), and nothing inherent in this contract prevents a cancellation by stages. Moreover, the removal of copiers in the first two phases was acquiesced in by F & F, and simply constituted giving effect to the express provision for removal.

2. Kroger’s motion to assess Rule 26 penalties is denied. Lane v. K-Mart Corp., 190 Ga. App. 113, 115 (6) (378 SE2d 136) (1989).

Judgment affirmed.

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


text:
    A89A2138, A89A2053.
    WRIGHT v. THE STATE.
    (391 SE2d 791)
   Pope, Judge.

Defendant William Alan Wright was arrested in a bar in Atlanta when his companion, Marshall Hutchinson, sold cocaine to an undercover agent. The agent testified at trial that he was introduced to defendant by another patron in the bar when the agent asked the patron who might be able to provide him with cocaine. When the agent told defendant he wanted to purchase a gram of cocaine, defendant turned to Hutchinson and told him to “go ahead and take care of [the agent].” Hutchinson left the bar and another agent observed him enter and briefly sit in an Oldsmobile automobile in the parking lot. When he returned he exchanged four bags of what later tested to be cocaine for five marked twenty dollar bills paid by the agent. The agent testified Hutchinson handed the money to defendant. When the undercover agent left the bar, uniformed officers entered and arrested Hutchinson and, later, defendant. Defendant told the arresting officers he was the owner of the Oldsmobile. Defendant was transported to a parking lot several blocks away and the Oldsmobile was towed there and searched. In the trunk the officer found a plastic bag containing what later tested to be two grams of cocaine. The marked bills were not found on defendant. Defendant was charged with the sale of cocaine and possession of cocaine with intent to distribute. He was convicted by a jury on both counts and appeals. He also appeals the denial of his motion for supersedeas bond.

Case No. A89A2138

1. Defendant first argues the trial court erred in denying his motion to suppress the evidence seized from the automobile. The testimony at the hearing on defendant’s motion showed that probable cause to search the vehicle arose from the observations of the officers. Because a car is parked at the time probable cause to search arises does not mean that exigent circumstances sufficient to justify a warrantless search are absent. Redd v. State, 240 Ga. 753 (1) (243 SE2d 16) (1978). Defendant told the officers the vehicle was his, but the officers had already observed another individual gain access to the vehicle. When officers are not sure they have in custody the only persons who have access to a vehicle and who might remove it or destroy evidence, a warrantless search on probable cause grounds is reasonable. Newman v. State, 237 Ga. 376 (2) (228 SE2d 790) (1976); Collins v. State, 171 Ga. App. 906 (2) (321 SE2d 757) (1984). The United States Supreme Court has already addressed defendant’s argument that the officers could nevertheless have guarded the vehicle while a warrant was obtained. “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.” Chambers v. Maroney, 399 U. S. 42, 52 (90 SC 1975, 26 LE2d 419) (1970).

2. Defendant testified that the automobile in which the contraband was found belonged to his mother and that his companion, Hutchinson, had borrowed the car earlier on the day of the arrest. Thus, he argues the trial court erred in failing to charge the jury on the equal access rule as he requested. The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. See Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983). Here, defendant’s possession of the vehicle was not the sole evidence of his possession of the contraband found in it. Even if the contraband was in the possession of Hutchinson, evidence was presented whereby the jury could find that defendant was a party to the offense of possession. Therefore, we find no reversible error in the trial court’s failure to charge the equal access rule.

Decided March 6, 1990.

Gregory Z. Schroeder, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, David Wright, Assistant District Attorneys, for appellee.

Case No. A89A2053

“Inasmuch as defendant’s convictions stand, the appeal of the propriety of denying bond pending substantive appeal is moot and is dismissed. Davis v. State, 164 Ga. App. 633, 637 (7) (298 SE2d 615) (1982).” Nichols v. State, 186 Ga. App. 314, 317 (367 SE2d 266) (1988).

Judgment affirmed in Case No. A89A2138. Appeal dismissed in Case No. A89A2053.

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


text:
    A89A2168.
    PROMENADE ASSOCIATES, LTD. v. FINISH LINE, INC.
    (391 SE2d 714)
   Cooper, Judge.

In this landlord tenant dispute, the landlord/appellant appeals the trial court’s grant of summary judgment to the tenant/appellee.

The shopping center lease at issue reflects the parties’ initial agreement that landlord was to provide tenant a “Tenant Allowance” of $13,000 to assist tenant in paying for construction work and tenant improvements desired by tenant. Upon completion of the construction, tenant received the allowance from landlord. During the term of the lease, tenant was forced to vacate due to fire damage, and pursuant to the terms of the lease, landlord elected to rebuild the premises rather than terminate the lease. Landlord did not pay tenant the negotiated tenant allowance after rebuilding nor were the tenant improvements purchased with the allowance replaced. Tenant refused to resume possession of the rebuilt property when it was tendered to tenant, construing the lease to require payment of the allowance upon reconstruction. This suit followed.

Paragraph 18 (d) of the form, pre-printed lease states, “[i]f Landlord should elect or be obligated to repair or rebuild because of any damage or destruction, Landlord’s obligation shall be limited to the basic building and any other work or improvements which may have been originally performed or installed at Landlord’s expense as described in Exhibit ‘B’ hereof. . . . Tenant shall replace all work and improvements originally installed or performed by Tenant at its expense.” Exhibit ‘B’ is a form exhibit setting forth the basic building construction and finish provided by Landlord. Rider No. 6 to the lease, a typewritten amendment to the form, is the agreement for the tenant improvement allowance and reads, “[i]n addition to the finishes outlined on Exhibit ‘B’ on the Lease Agreement, Landlord agrees to pay Tenant $13,000 as a Tenant Allowance . . . which sum shall be for the sole purpose of assisting Tenant in paying for part of the cost for Tenant to construct the Premises per Tenant’s plans.” Rider No. 6 then establishes certain construction requirements to be met before tenant would be entitled to the allowance.

Appellant’s first three enumerations contest the reasons set forth by the trial judge in granting the appellee’s summary judgment motion, and the fourth enumeration asserts that the trial judge erred in not granting the appellant’s cross motion for summary judgment. After a review of the record and the numerous briefs filed by counsel, we conclude that the second reason espoused by the trial court supports its decision; consequently our discussion herein is limited to the second enumeration.

The trial court concluded that Paragraph 18 (d) was ambiguous since the contested improvements, though installed by tenant, were at landlord’s expense. We agree that the extent of landlord’s obligations under Paragraph 18 (d) is ambiguous considering the other provisions cited herein. “ ‘[E]ven ambiguous contracts may be construed by the courts, and a jury question is presented only when the application of the rules of construction fails to resolve the ambiguity.’ ” Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981). The trial court applied the rules of construction found in OCGA § 13-2-2 to correctly determine that after such application, no ambiguity remained in this lease. See Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). Pursuant to OCGA § 13-2-2 (5), an ambiguity as that presented here is to be interpreted against the party undertaking the obligation. Since landlord undertook the obligation under the lease to rebuild and repair the premises after the destruction, an interpretation of the extent of its duties should be made favoring the recipient, the tenant. Corollary rules of construction acknowledged in Georgia require construction against a lessor (Peachtree on Peachtree Investors v. Reed Drug Co., 251 Ga. 692 (1) (308 SE2d 825) (1983)) and against the party drafting the agreement. Farm Supply Co. of Albany v. Cook, 116 Ga. App. 814 (2) (159 SE2d 128) (1967). These rulés similarly support the construction of the lease made by the trial court. Further, “[t]he construction of a contract should be governed by the intent of the parties as expressed in the entire contract. [Cit.]” Peachtree on Peachtree Investors, supra. The economic balance of the lease as negotiated presupposed a $13,000 allowance from landlord to tenant. When landlord opted to assume rebuilding and repair obligations, rather than terminate the lease, this economic, balance, which was the original intent as expressed in the lease, should have been restored. The grant of summary judgment for tenant/appellee was proper, as was the denial of appellant’s motion for summary judgment.

Decided March 6, 1990.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Craig Nance, Perry A. Phillips, for appellant.

Bondurant, Mixson & Elmore, James C. Morton, John E. Floyd, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A2189.
    JOHNSON v. THE STATE.
    (391 SE2d 716)
   Pope, Judge.

Defendant Anthony Johnson was convicted of trafficking in cocaine and appeals. The evidence showed that just prior to his arrest defendant and his three co-indictees had traveled to Dublin, Georgia, from the Ft. Lauderdale area of Florida. The group traveled in three cars including a Cadillac owned by defendant Johnson’s wife and a brown station wagon. On November 4, 1987, a confidential informant notified the Dublin Police Department that a brown station wagon carrying cocaine and several nine millimeter automatic pistols was en route to Highway 19 and 1-16 in Laurens County. Shortly thereafter the authorities stopped a vehicle matching this description and discovered a nine millimeter pistol and a bag containing 19.58 grams of cocaine on the floor of the back seat next to where defendant was seated as a passenger in the car. One of the co-indictees was driving the car and another was in the front passenger seat. Later in the day, pursuant to written consent, the authorities searched defendant’s wife’s Cadillac and discovered plastic bags containing a total of 22.37 grams of cocaine, cash, a .38 caliber pistol and drug paraphernalia. Another nine millimeter pistol was found beneath the house where one of defendant’s co-indictees was staying while visiting Laurens County.

1. During his opening statement to the jury defendant’s counsel commenced to state to the jury the law of the presumption of innocence. The State’s objection was sustained. Defendant’s attorney then requested the trial court then and there to charge the jury on the presumption of innocence. The trial court did not err in refusing to charge the jury on a principle of law during the defendant’s opening statement. “Counsel is limited in his opening statement to matters he expects to prove.” Smith v. Berry, 231 Ga. 39, 40 (200 SE2d 95) (1973). The presumption of innocence is not considered evidence in favor of the accused but a way of defining the prosecutor’s burden to produce evidence of guilt. See Taylor v. Kentucky, 436 U. S. 478, 483, n.12 (98 SC 1930, 56 LE2d 468) (1978); Agnew v. United States, 165 U. S. 36, 51-52 (17 SC 235, 41 LE 624) (1897). It cannot be said that the presumption of innocence is a matter of evidence which defendant intends to prove and, therefore, it is not properly within the scope of matters which may be addressed during opening statement. The trial court instructed the jury on the presumption of innocence at the proper time. Consequently, no error is shown.

2. Although defendant was not indicted under a conspiracy theory, a conspiracy may be proved even though not alleged in the indictment or accusation. See Bruster v. State, 228 Ga. 651 (3) (187 SE2d 297) (1972); Carpenter v. State, 167 Ga. App. 634 (11) (307 SE2d 19) (1983). The jury in this case was correctly charged on the law of conspiracy and that “the act of one conspirator is considered to be the act of all the conspirators.” Whitfield v. State, 159 Ga. App. 398, 400 (283 SE2d 627) (1981). Consequently, we find no error in admitting the testimony concerning the finding of a weapon at the residence where one of defendant’s co-indictees was temporarily residing.

3. In regard to possession, the trial court charged the jury, “You would be authorized to convict only if you find, beyond a reasonable doubt, that the defendant knowingly had actual possession either alone or jointly with others and that the term, actual possession [,] does not require that a person be holding the alleged contraband or have it physically on his person.” We reject defendant’s argument that the trial court defined actual possession in such a way as to in-elude the notion of constructive possession. Actual possession requires only direct physical control over a substance; it does not require that the substance be on the defendant’s person. Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983), disapproved on other grounds in Teague v. Georgia, 252 Ga. 534 (1) (314 SE2d 910) (1984). Thus, the trial court’s definition of actual possession was not improper.

Neither did the trial court err in failing to give defendant’s requested charges on the presumption that contraband found in an automobile belongs to the owner or driver of an automobile or on the equal access rule. Neither of the requested charges were applicable to the evidence presented in the case. The presumption that the driver or owner of an automobile is in possession of all that is in the automobile is a rebuttable presumption of guilt against an owner or driver and may not be used as a presumption of innocence by an occupant of the automobile. Compare Reed v. State, 186 Ga. App. 539 (367 SE2d 809) (1988). The presumption applies only when the driver is in exclusive possession of the automobile and does not apply in a case involving evidence of joint possession with others. See Robinson v. State, 175 Ga. App. 769 (2) (334 SE2d 358) (1985). Compare Farmer v. State, 152 Ga. App. 792 (264 SE2d 235) (1979). The equal access rule applies to overcome the presumption that the owner or driver of an automobile is in possession of the contents of the automobile; it does not overcome evidence of joint possession. See Mendez v. State, 185 Ga. App. 1 (1) (363 SE2d 262) (1987). The equal access rule is simply a defense available to an accused to whom a presumption of possession flows. Where the evidence does not show defendant owned or was in the exclusive control of the automobile in which contraband was found, the equal access defense is not triggered. Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) (1987).

4. We reject defendant’s argument that the trial court’s instruction to the jurors that they were not to concern themselves with punishment because that was the court’s responsibility wrongly implied the judge expected a guilty verdict. This correct statement of the law was preceded by the comment “[Y]ou are only concerned with the guilt or innocence of Mr. Johnson.” (Emphasis supplied.)

5. Finally, we hold the trial court did not err in failing to grant defendant’s motion for acquittal or in denying his motion for new trial on the ground the evidence was insufficient to sustain his conviction. “The question of the existence of a conspiracy may be shown by circumstantial evidence.” Causey v. State, 154 Ga. App. 76, 78 (267 SE2d 475) (1980). Here the evidence that defendant and his co-indictees traveled together from south Florida, an area known as a source for drug trafficking, and that contraband and weapons were found in two of their cars and another weapon was found at the place where one co-indictee was staying is sufficient circumstantial evidence to show the existence of a conspiracy among the co-indictees. Once the conspiracy was shown, defendant could properly be found guilty for the acts of any and all the conspirators. See Whitfield v. State, supra.

Decided March 6, 1990.

Henry G. Bozeman, for appellant.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A1969, A90A0387.
    A90A0388.
    JONES v. THE STATE (two cases). DOZIER v. THE STATE.
    (391 SE2d 663)
   Sognier, Judge.

James Edward Jones and Donald Jeff Dozier were convicted of armed robbery. This opinion consolidates their appeals from their convictions (Case Nos. A90A0387 and A90A0388, respectively) with Jones’ appeal from the trial court’s denial of his motion for an appeal bond (Case No. A89A1969).

1. Both appellants enumerate the general grounds. Construed to support the verdict, the evidence adduced at trial reveals that on the evening of January 18, 1988, Virginia Dunn, an employee of a pizza restaurant in West Point, received a call placing an order for a pizza to be delivered to a stated address. Dunn took the order and delivered the requested pizza. Dunn testified that when she arrived at the address, a man she identified as appellant Jones approached her and informed her he was the one who ordered the pizza. Jones then pulled a gun, pointed it at Dunn’s face, and demanded her money. Dunn testified she gave him the pizza and a bag which contained receipts from other deliveries and Dunn’s tip money. Dunn testified she had observed a bluish-gray four door automobile with a religious sign on the driver’s door when she arrived to deliver the pizza. She stated that after Jones left and she returned to the restaurant, she reported the robbery to the police.

Shortly after Dunn’s report, Alabama police officers stopped a vehicle matching Dunn’s description, which was driven by appellant Dozier with appellant Jones in the passenger seat. The police retrieved from the floorboard of the front passenger seat a pizza delivery box which Dunn identified at trial as appropriate for the size and type of pizza taken from her in the robbery. She also identified a bag and the receipts inside as the items taken in the robbery. Testimony established that the bag was found under the pizza box in the vehicle in which appellants were driving.

Captain Charles Storey of the Valley (Alabama) Police Department testified that he advised both appellants of their rights when he arrived where appellants and the vehicle were being detained. He stated that a holster was visible in the front of the vehicle between the driver and passenger seats, and when Storey questioned appellant Jones, Jones told him that the gun was under the seat of the car. Storey found the weapon as directed.

Storey testified that Jones made a statement in which Jones said that he and another were in a car, that the other person placed a call to the pizza restaurant and “set it up.” When the delivery person arrived, Jones stated he pointed the gun at her, told her to give him the money, and was given the bank bag and pizza by the delivery person. Jones and the other person then left, got on the interstate highway, and exited at an intersection (identified by the Alabama police officers as near the location where they apprehended appellants). Also admitted was Jones’ statement to Lieutenant James Daniel of the West Point Police Department in which Jones stated that he was a passenger in a car driven by another, and that the other person called the pizza restaurant, but that Jones left when the other person went to pick up the pizza.

Appellant Dozier testified at trial that he drove Jones to the trailer park where the pizza was delivered but was not involved and did not knowingly participate in the armed robbery in any way. He stated that nothing Jones said or did indicated an armed robbery had occurred, that he did not see the money bag or the gun, that he could not explain the holster between his seat and Jones’ seat, and that he had given the police a false name when they stopped the car he was driving because he did not have a driver’s license.

We find that on the basis of the evidence presented at trial, a rational trier of fact reasonably could have concluded beyond a reasonable doubt that both appellants were active participants in the planning and execution of the armed robbery for which they were indicted. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Byram v. State, 189 Ga. App. 627, 629 (9) (376 SE2d 909) (1988).

2. Appellant Dozier raises for the first time on appeal the alleged ineffective assistance of his trial counsel. The record reveals that Dozier’s trial counsel filed the motion for new trial, and in the order denying this motion the trial court appointed new counsel to represent Dozier in further post-conviction proceedings. As in Hightower v. State, 189 Ga. App. 553, 556 (376 SE2d 717) (1988), “the issue of ineffective assistance of counsel was first raised on appeal, and was not the subject of an amended motion for new trial. Therefore, Smith [v. State, 255 Ga. 654 (341 SE2d 5) (1986)] controls and this case must be remanded for an evidentiary hearing. [Cits.]” See also Midura v. State, 183 Ga. App. 523, 526 (359 SE2d 416) (1987) (Carley, J., concurring specially.)

3. Jones contends the trial court erred by admitting into evidence Storey’s testimony regarding the statement Jones made because the testimony was not from the witness’s memory but rather from a note written by the prosecutor. The record reveals, however, that after Jones objected to Storey making the statement, Jones’ attorney introduced the note into evidence as Jones’ exhibit no. 1. It is axiomatic that induced error is impermissible. Smith v. State, 189 Ga. App. 244, 245 (2) (375 SE2d 496) (1988). Although Jones contends his statement was improperly admitted because the trial court failed to make a clear finding that the statement was made voluntarily under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the record fails to reflect that Jones questioned the voluntariness of the confession, moved for a hearing, or challenged the use of his statement, except in the regard discussed above. “Where the voluntariness of a confession is questioned on the trial of a criminal case it is necessary under the decision in Jackson v. Denno, [supra], to have a separate hearing as to the voluntariness before it is finally presented to the jury for consideration as to its voluntariness. In the absence of a proper objection, however, there is no requirement for such a hearing. Due process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.” (Punctuation, citations, and emphasis omitted.) McNair v. State, 190 Ga. App. 412, 413 (2) (379 SE2d 424) (1989). Captain Storey explained that he twice read Jones his rights under Miranda u. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), that Jones indicated that he did not want a lawyer but wanted to make a statement, that Jones did not appear to be under the influence of alcohol or drugs, and that Jones’ statement was made without threat or coercion or under any offer of hope or benefit. See OCGA § 24-3-50. We find no error in the admission of this statement.

4. We have carefully examined Jones’ remaining enumerations in Case No. A90A0387 and find them all to be without merit. The record fails to support appellant Jones’ ninth enumeration of error, and the remaining enumerations either allege errors which were not raised by objection at trial and therefore cannot be considered for the first time on appeal, see Cooper v. State, 188 Ga. App. 297, 298 (3) (372 SE2d 679) (1988), or are not supported by argument of counsel or citation of authority, and are thus deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Weeks v. State, 190 Ga. App. 373, 375 (2) (378 SE2d 895) (1989).

5. In Case No. A89A1969, Jones appeals from the denial of his motion for an appeal bond. No transcript of the hearing on Jones’ motion was included in the record on appeal. The trial court’s order on the motion recites that a hearing was held at which Jones was heard and at which the procedure required by Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976) was followed. The trial court noted that Jones presented no evidence at the hearing and made no argument to convince the court to give negative answers to the four Birge questions. Finding that Jones failed to carry his burden of proof as required by Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979), the trial court denied his motion. We find no abuse of the trial court’s discretion in so doing. See Newton v. State, 180 Ga. App. 764, 765 (350 SE2d 483) (1986).

Decided February 12, 1990

Rehearing denied March 7, 1990.

Sherry L. Stenson, for appellant (case nos. A89A1969, A90A0387).

Robert B. Whatley, for appellant (case no. A90A0388).

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

Judgments affirmed and Case No. A90A0388 remanded.

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


text:
    A89A2200.
    LORD v. THE STATE.
    (392 SE2d 17)
   Beasley, Judge.

Defendant appeals his convictions for driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), and operating a vehicle without proof of effective insurance or an approved plan of self-insurance, OCGA § 33-34-12.

1. Error is assigned on the failure to strike for cause two jurors, Mrs. Cheek and Mrs. Zier. Defendant contends that his challenge for favor should have been granted and that he was forced to expend peremptory strikes to prevent their serving on the jury. Both jurors admitted to having contributed to Mothers Against Drunk Drivers (MADD). Mrs. Cheek stated that a sister of a close friend had been killed by a drunk driver about ten years previously. She also volunteered that about seven years earlier a friend was injured by a law enforcement officer who was DUI. Neither juror had any knowledge or connection with this particular incident or the defendant.

Neither prospective juror displayed a fixed opinion that could not be changed by the evidence or by instructions of the court. Mrs. Cheek answered “I think I can do that” in response to the court’s question as to whether she could listen to the evidence and return a verdict based on the evidence and instructions of the court. Mrs. Zier responded that “I do not think that because I belong to MADD that will influence my decision.” She had previously stated that she would do her best to be objective.

Control of the voir dire examination is vested in the discretion of the trial court and its rulings are presumed proper in the absence of some manifest abuse of discretion. Godfrey v. Francis, 251 Ga. 652, 662 (9) (308 SE2d 806) (1983); Welch v. State, 251 Ga. 197, 200 (5) (304 SE2d 391) (1983). “The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. . . . [Citations omitted.] We will not hold, as a matter of law, that a juror who has fear of, or some trepidation to, or some particular abhorrence to, a specific crime, is per se disqualified for cause as a juror in a trial of that type criminal case. We conclude most law-abiding citizens find violent crime abhorrent. The fear and doubt expressed here goes to the particular offense, not the particular offender.” [Emphasis in original.] Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986).

The jurors’ possible bias against the offense of drunken driving did not demonstrate that they could not be fair and impartial toward defendant. Lewis v. State, 186 Ga. App. 349, 352 (3b) (367 SE2d 123) (1988); Durham v. State, 185 Ga. App. 163, 165 (2) (363 SE2d 607) (1987). See United States v. Elliott, 849 F2d 554 (11th Cir. 1988); Jenkins v. State, 146 Ga. App. 458 (1) (246 SE2d 466) (1978).

2. Defendant complains that the court failed to instruct the jury not to conduct an investigation of their own, which resulted in the foreman’s happening to traverse the highway which was the scene of the crime and obtaining mental impressions from his experience before receiving all the evidence and deliberating. A new trial should have been granted when this came to light, he maintains. No request for such a charge was made when the jury dispersed for the night. Defendant attempted to show this extracurricular activity by the affidavit of the juror. This is not permitted. OCGA § 17-9-41; Hall v. State, 259 Ga. 412, 415 (3) (383 SE2d 128) (1989); Hanson v. State, 258 Ga. 564, 567 (3) (b) (372 SE2d 436) (1988); Ellis v. State, 176 Ga. App. 384, 385 (1) (336 SE2d 281) (1985). The instance described does not rise to a level of constitutional significance as it did in Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976).

Judgment affirmed.

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

Decided February 19, 1990

Rehearing denied March 7, 1990.

Daniel L. Dean, Christina K. Cooley, for appellant.

Ralph Bowden, Jr., Solicitor, Judith C. Emken, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.


text:
    A89A1709.
    A89A1710.
    A89A1711.
    A89A1712.
    SOUTHERN TRUST INSURANCE COMPANY v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. MCDONALD et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. BAKER v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. COTTON STATES MUTUAL INSURANCE COMPANY v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (391 SE2d 793)
   Beasley, Judge.

These four appeals are from the grant of summary judgment declaring that Georgia Farm Bureau Mutual Insurance Company’s contract of insurance with McDonald did not provide coverage.

On June 20, 1985, Georgia Farm Bureau issued a fleet insurance policy to McDonald. The policy was renewed annually and each year the insurer and McDonald did an audit of coverage. In November 1987, McDonald acquired a lowboy trailer for his business of custom application of fertilizer and lime. The trailer was received in trade for an unlisted pull buggy. The audit with respect to the coverage year beginning June 20, 1987, was done in April 1988 and the trailer, which was then owned, was not listed in the “fleet.” The audited schedule was signed by McDonald.

The policy provided automatic coverage for “licensed owned automobiles (including trailers),” specifically for coverage of a trailer not described in the policy, if designed for use with a private passenger automobile, if not being used for business purposes with another type automobile and if the named insured or his spouse notified the insurer about the trailer within thirty days of delivery date. On the other hand, the policy expressly excluded coverage for any otherwise covered automobile while it was used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company or while any trailer covered by the policy was used with any automobile owned or hired by the insured and not covered by like insurance in the company.

On June 10,1988, the lowboy trailer was attached to McDonald’s spreader truck, a policy-listed commercial vehicle, so that McDonald’s employee Stewart could pick up and load a tractor. Before the tractor was loaded, the trailer came loose from the towing spreader and hit a pedestrian, Mrs. Baker, pinning her into a culvert and killing her.

Mr. Baker filed suit for the wrongful death of his wife against McDonald, Stewart, and Georgia Farm Bureau as McDonald’s liability insurance carrier. The suit was also served on the Bakers’ uninsured/underinsured motorist carriers, Southern Trust Insurance Company and Cotton States Mutual Insurance Company, as unnamed party defendants pursuant to OCGA § 33-7-11 (d). Both filed defensive pleadings.

Georgia Farm Bureau sought a judgment against McDonald, Stewart, and Baker declaring that the subject fleet policy did not cover the vehicle or vehicles involved in the collision with Mrs. Baker so that it owed no duty to defend McDonald and Stewart in the wrongful death suit. The latter was stayed pending outcome of the declaratory judgment action. Southern Trust and Cotton States also filed defensive pleadings in the declaratory judgment action and were added as named party defendants.

The trial court concluded that the lowboy trailer which caused Mrs. Baker’s death was not covered under McDonald’s fleet policy. Southern Trust appeals in Case No. A89A1709, McDonald and Stewart appeal in Case No. A89A1710, Baker appeals in Case No. A89A1711, and Cotton States appeals in Case No. A89AI712.

1. At the threshold, appellants contend that procedural errors precluded the grant of summary judgment: 1) the court erred in failing to strike or dismiss Georgia Farm Bureau’s motion for summary judgment because a) it did not contain citations of authority as required by USCR 6.1 (sixteen days later the insurer supplemented the motion to add citations of authority) and b) Georgia Farm Bureau delayed too long in regard to the trial date to file a complying motion for summary judgment in violation of USCR 6.6; 2) the court erred in holding the hearing on the summary judgment motion only fifteen days after the motion was supplemented, depriving them of the right under OCGA § 9-11-56 to thirty days to respond.

Georgia Farm Bureau filed its motion for summary judgment on March 28 along with supporting affidavit and statement of theories of recovery and undisputed material facts. This was served on all parties with notice that the motion would be heard on April 28. Appellants responded and moved to strike and/or dismiss the motion on the bases noted.

At the April 28 hearing, which proceeded on the merits, appellants also reiterated their procedural objections. When appellants argued that they were due thirty days from April 13 to respond to the supplement, the court inquired if they wished a continuance. Appellants expressed concern about delaying the trial, set for the following week. Discussion was had about when the case would actually be tried and the possibility of specially setting it or resetting it. All parties desired not to postpone trial and all appellants in effect rejected the court’s offer and joined in urging the court to render its decision on the summary judgment motion as soon as possible.

The original summary judgment motion along with its supporting evidence was served on appellants at least thirty days before the time fixed for the hearing. See OCGA § 9-11-56. Even if the response time was more appropriately computed from the time the motion was “perfected,” appellants waived expansion of the time and resetting of the trial by not only rejecting the court’s offer but by affirmatively asking the court to move forward with the summary judgment determination. See Mobley v. Coast House, 182 Ga. App. 305, 309 (355 SE2d 686) (1987). Parties may not complain of what their own conduct procured or aided in causing. Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726) (1968).

2. All appellants contend that the trial court erred in failing to strike as inadmissible hearsay portions of Pettis’ affidavit.

The affidavit contains a statement that it is based on personal knowledge. Even if appellants’ objections to portions of the affidavit are valid, appellants could not have been harmed by consideration of the entire affidavit because it addressed issuance of the insurance and forwarding of its documentation to the insured. Aside from this affidavit, McDonald had notice of the actual terms of his fleet policy as a matter of law. See Division 3 (a). Furthermore, other circumstances not addressed in this affidavit mandated that the trailer be found excluded from the policy’s automatic coverage. See Division 3 (b), (c), (d), and (e). Without harm there can be no reversible error. Murray v. Stratford, 181 Ga. App. 592, 593 (1) (353 SE2d 85) (1987).

3. All appellants contend there existed genuine issues of material fact about (a) whether or not McDonald received the policy booklet putting him on notice of the excluding policy provisions; (b) whether or not McDonald properly and timely notified Georgia Farm Bureau via its agent about acquisition of the lowboy trailer; (c) whether or not the agent was negligent in failing to provide coverage for the trailer; (d) whether or not the trailer was a “licensed owned automobile” under the policy; (e) whether or not the trailer was being used for “business purposes” under the policy when it came loose and struck Mrs. Baker; and (f) whether or not the trailer was “designed for use with a private passenger automobile” so as to be covered.

(a) It is undisputed that the fleet policy was issued to McDonald almost three years prior to the Baker fatality. The renewal policy declarations that McDonald did receive, including the one covering the period of the mishap, indicated the actual policy number and that the declaration should be attached to and become part of the policy. Under such circumstances, McDonald had notice of the existence of the actual policy as a matter of law and his non-receipt or non-possession of the policy would not serve to excuse him from its operative terms. Georgia Farm &c. Ins. Co. v. Owens, 178 Ga. App. 446 (343 SE2d 699) (1986).

(b) Construing the evidence favorably for appellants establishes that five days after McDonald acquired the lowboy trailer, Daugherty, who was McDonald’s neighbor and the Georgia Farm Bureau agent with whom he did business, was a social guest along with a date in McDonald’s home. During the socializing, McDonald mentioned to Daugherty that he (McDonald) had traded with McDonald’s date his (McDonald’s) “pull buggy” for a lowboy trailer. It is undisputed that the pull buggy had not been listed on the fleet policy, that McDonald made no inquiry or request to Daugherty regarding insurance on the acquired trailer, and that during the visit McDonald and Daugherty had no further discussion regarding the trailer or any conversation whatsoever about insurance. There is no evidence that by this mere reference about the trailer swap to an agent in a social setting, McDonald intended that the comments provide notice to the insurer for the purpose of coverage. Since there was zero indication that insurance coverage was desired, the reference described above raises no issue about notice to the insurer.

(c) Inasmuch as the evidence shows that the agent had no notice of the lowboy trailer for the purpose of insurance coverage, there is no issue requiring jury resolution about agent negligence in not pursuing the trailer’s coverage under the policy.

(d) The evidence is undisputed regarding whether or not the trailer was a “licensed owned automobile” for purposes of automatic coverage under the policy. McDonald’s uncontradicted deposition testimony was that he had not obtained a license plate for the trailer and there was no evidence that the vehicle was “licensed” in any other manner.

(e) The evidence is also undisputed that at the time of the fatal incident the trailer was being used for business purposes. McDonald’s uncontradicted deposition testimony was that the trailer was on its way to a farm to pick up a tractor so that McDonald could perform a job of “putting out land plaster.” The mere fact that the tractor had not yet been loaded on the trailer did not change or predate either McDonald’s business intention with regard to the transportation of the trailer or the business purpose and function of the trailer itself on that occasion. There was no evidence that McDonald’s employee, Stewart, was engaged in any personal rather than business endeavor when the trailer hit Mrs. Baker. This uncontroverted evidence of business purpose also excluded the trailer from automatic coverage.

(f) Although appellants did submit evidence that the trailer might have been “designed for use with a private passenger automobile,” it did not create a jury issue. The reason is that even if it was so designed, the trailer was excluded from that aspect of automatic fleet coverage because it was being used for a business purpose with a vehicle which was not a private passenger automobile.

4. All appellants contend that the policy “exclusions” which avoid coverage are void as violative of public policy.

Non-coverage of the trailer itself is not the result of a specific exclusion in the policy but rather the trailer’s failure to meet the requirements for automatic inclusion of liability coverage. There is no claim that the policy would have excluded specific liability coverage for the trailer under the circumstances of the fatal mishap if it had been listed as part of the insured fleet.

Even if the provisions constitute exclusions, “Georgia’s compulsory insurance law does not contain an omnibus provision which would require liability insurance under all circumstances and hence would appear to prohibit any and all exclusions. Therefore, in Georgia each exclusion must be evaluated individually.” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (1) (n. 6) (329 SE2d 136) (1985).

A substantive evaluation of public policy in regard to the alleged exclusions is not reached, see id. at 340 (1)-341, because the policy was never operative in regard to the trailer. McDonald failed to provide the insurer with any timely notice that he desired the trailer to be covered by the policy.

For this same reason, we need not consider the specified exclusion for the towing automobile of the uninsured trailer. The liability coverage of the towing spreader does not alter Georgia Farm Bureau’s non-liability for the trailer.

Appellant Southern Trust cites authority regarding ambiguity in an insurance contract but does not point out how the contract at issue is ambiguous. It is not ambiguous but instead plain and clear. Even if considered ambiguous, construction so as to resolve the ambiguity by application of the legal principles of contract construction would be up to the court and not the jury. Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658 (1) (324 SE2d 517) (1984). There is no indication that the court did not perform this function if it deemed the terms ambiguous. Applying the rules, no ambiguity arguably present remains for factfinder resolution.

5. Appellants Southern Trust’s and Cotton States’ contention that the trial court erred in adding them as named parties to the declaratory judgment action because it would prejudice the jury during trial is rendered moot by the affirmed grant of summary judgment to Georgia Farm Bureau. In argument in this enumeration of error, Southern Trust mentions that it was not validly served with process in the original wrongful death suit. Even if such issue is appropriately raised in the present action, we do not address that which is merely referred to in brief but not enumerated as error. Marques v. Myers, 148 Ga. App. 881 (253 SE2d 262) (1979).

Decided March 7, 1990.

Anderson & Lanford, William H. Anderson III, for Southern Trust.

Bowles & Bowles, Jesse G. Bowles, for Georgia Farm Bureau.

Ronnie Joe Lane, for McDonald & Stewart.

Charles C. Stewart, Jr., Kenneth L. Hornsby, for Baker.

Charles F. Johnson, for Cotton States.

Judgments affirmed.

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


author: McMurray, Presiding Judge.

text:
    A89A1929.
    WASHINGTON v. THE STATE.
    (391 SE2d 718)
   McMurray, Presiding Judge.

Defendant was indicted for murder. The case was tried before a jury and the evidence showed that defendant cut the victim’s throat with a broken wine bottle, killing him, after a territorial dispute over sleeping rights in an abandoned van. Defendant was found guilty of the lesser included offense of voluntary manslaughter. This appeal followed. Held:

1. First, defendant contends the trial court erred in allowing State’s witness Mark Pevey to testify as an expert “on the behavioral effects of alcohol at differing blood alcohol levels [, arguing that] Mr. Peevy [sic] simply was not qualified as an expert on that subject.”

“ To qualify as an expert . . . generally all that is required is that a person must have been educated in a particular skill or profession: his special knowledge may be derived from experience as well as study. (Cits.) Formal education in the subject at hand is not a prerequisite for expert status.’ Bowden v. State, 239 Ga. 821, 826 (3) (238 SE2d 905) (cert. den. 435 U. S. 937) (1978); Brown v. State, 140 Ga. App. 160, 162 (5) (230 SE2d 128) (1976) (cert. den. 434 U. S. 819) (1977).” Brown v. State, 245 Ga. 588 (1), 590 (266 SE2d 198). “It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular area to be deemed expert. American Fire &c. Co. v. Grizzle, 108 Ga. App. 496 (133 SE2d 400).” Morrison v. State, 147 Ga. App. 410 (1), 411 (249 SE2d 131).

In the case sub judice, Mark Pevey testified that he holds a degree in chemistry from Berry College; that he served as a quality control chemist for a private pharmaceutical company; that he has been trained to measure the amount of alcohol in a person’s blood and that he has had the opportunity to observe the physical and behavioral characteristics of persons under varying degrees of intoxication. Mark Pevey also testified that he participated in a study of the behavioral and physiological effects of persons under the influence of alcohol at Mercer University’s “Southern School of Pharmacy ... in Atlanta . . . .” This evidence was more than sufficient to authorize the trial court’s ruling as to the expert qualifications of Mark Pevey in the field of the physical and behavioral effects of alcohol on persons of varying degrees of intoxication.

2. In his second enumeration, defendant contends the trial court erred in allowing evidence of his participation in a “fight” which occurred about four to five hours before the victim’s death.

Georgia Tabb testified at trial that defendant was the father of her “baby” and that “[a]bout 9:00, almost 10:00 o’clock” on the night of the victim’s death defendant came to her house to see her and the baby and “to get his I.D.” Georgia Tabb then testified that her brother-in-law and her “friend” informed her that she “didn’t need to go . . .” to defendant; that the “friend” told defendant to leave and that she later “heard rumbling and stuff” and observed “Jason” and defendant fighting.

Georgia Tabb’s sister’s description of the altercation was more revealing. Jennifer Tabb testified that defendant came to her mother’s house at “[a]bout 10:00 or 10:30” on the night of the victim’s death and “knocked on the door. . . .” She then testified that Georgia Tabb’s boyfriend, Jason, told defendant that “she [Georgia Tabb] wouldn’t come to the door” and that, when Jason tried to close the door, defendant forced his way in and started fighting and threatening Jason.

“The state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting [the above] evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence. Davis v. State, 230 Ga. 902 (4) (199 SE2d 779) (1973).” Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86). The “fight” which took place at Georgia Tabb’s and Jennifer Tabb’s mother’s house was relevant evidence of defendant’s violent state of mind on the night of the victim’s death. This enumeration is without merit.

3. Next, defendant contends the trial court erred in denying his motion for a mistrial after a law enforcement officer testified that he obtained a photograph of defendant from the Atlanta Police Department’s Identification section. Defendant argues that this testimony impermissibly placed his character in evidence.

“[A] mere reference to the fact that defendant’s photograph was already in police records, without more, does not inject the defendant’s character into evidence. Woodard v. State, 234 Ga. 901 (2) (218 SE2d 629) (1975); Woodard v. State, 155 Ga. App. 533 (1) (271 SE2d 671) (1980).” Harris v. State, 191 Ga. App. 399 (381 SE2d 602). This enumeration is without merit.

4. In his fourth enumeration, defendant contends the trial court erred in allowing the State to place his character in issue.

An examination of the trial transcript shows that the State’s attorney asked defendant on cross-examination, “When you are drinking, don’t you become very violent?” The State later used defendant’s negative response as a reason to present rebuttal testimony of defendant’s violent character when drinking.

“ ‘Code Ann. § 38-415 [now OCGA § 24-9-20 (b)] provides in part: “. . .no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall first put his character in issue.” “In a criminal case the State can not rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence or by his statement to the jury.” Bryant v. State, 65 Ga. App. 523 (2) (16 SE2d 241) (1941).’ Favors v. State, 145 Ga. App. 864 (1) (244 SE2d 902) (1978).” Murray v. State, 157 Ga. App. 596 (1) (278 SE2d 2).

In the case sub judice, defendant did not voluntarily place his character in issue. The State first brought defendant’s character into question when it asked, “When you are drinking, don’t you become very violent.” However, under the particular facts and circumstances of the case sub judice we find it highly probable that the testimony regarding defendant’s violent character when drinking did not contribute to the verdict. The erroneously admitted evidence was cumulative of a fact which had already been established, beyond a reasonable doubt. Johnson v. State, 238 Ga. 59 (230 SE2d 869); Osborne v. State, 193 Ga. App. 276, 277 (3) (387 SE2d 383).

The evidence in the case sub judice not only showed that defendant had been drinking and that he had a violent disposition on the night of the victim’s death, but it showed without question that the victim died at the hands of defendant.

5. Defendant maintains in his fifth enumeration that “[t]he trial court erred in its charge on self-defense and erred in charging on mutual combat as these said charges contained elements that had not been covered in the charge conference and were a surprise to [defense] counsel and the charges related to matters not in evidence at the trial.”

In the case sub judice, at the conclusion of the introduction of evidence court was recessed at lunch until “noon tomorrow.” Upon the jury’s leaving the courtroom, the trial court, in a charge conference with the parties present, “took up” the requested charges submitted by the State and by the defendant. In the conference, the trial court stated that “I will not use State’s request No. 4 [on self-defense] for a number of reasons. I will charge on self-defense. I intend to use the self-defense charge in the pattern charge book.”

During its charge to the jury the trial court charged almost verbatim the pattern jury instruction on “Justification” as contained in Suggested Pattern Jury Instructions by the Council of Superior Court Judges of Georgia, Volume II, Criminal Cases. This charge was also almost verbatim to the provisions of OCGA § 16-3-21 (use of force in defense of self or others).

Under the particular facts and circumstances of the case sub judice, we fail to see how defense counsel was surprised.

“The defendant. . . argues that the trial court erred in charging Code Ann. § 26-902 (b) [now OCGA § 16-3-21]. This Code section involves self-defense and subsection (b) contains the negative or exception to the self-defense theory. ‘It is not usually cause for a new trial that an entire Code section is given. Ford v. State, 232 Ga. 511, 517 (12) (207 SE2d 494) (1944). Accord, Highland v. State, 127 Ga. App. 518 (1) (194 SE2d 332) (1972). This is so even though a part of the charge may be inapplicable under the facts in evidence. Highland, supra, at p. 519. Rowles v. State, 143 Ga. App. 553, 557 (239 SE2d 164) (1977) cert. den. Accord, Pippin v. State, 205 Ga. 316 (9), 323 (53 SE2d 482) (1949).’ Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980).” Stevens v. State, 247 Ga. 698, 706 (13) (278 SE2d 398).

We hold that the trial court did not err in charging on justification or self-defense as the charge was an accurate statement of the law and applicable even though the defense contends the charge related to matters not in evidence.

6. In his final enumeration of error, defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the evidence was insufficient to support the verdict. This contention is without merit.

The evidence showed that the victim died at the hands of defendant. This evidence, evidence that the victim was in a defenseless state of inebriation at the time of his death and evidence that the victim’s throat had been mercilessly slashed several times was more than sufficient to enable any rational trier of fact to find defendant guilty, beyond a reasonable doubt, of the offense of voluntary manslaughter. OCGA § 16-5-2 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley, J., concurs. Carley, C. J., concurs in Divisions 1, 3, 4, 5 and 6 and in the judgment.

Decided March 7, 1990.

John A. Pickens, for appellant.

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