text:
    75928.
    LITMON v. THE STATE.
    (368 SE2d 530)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with burglary. The jury returned a verdict of guilty. Appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates the general grounds. After reviewing the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence at trial from which a rational trior of fact could have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After retiring to deliberate, the jury returned to ask the trial court the following question: “If the person is not the person that entered the building, but was an accomplice to [the one who entered], is that person guilty?” In response to this inquiry, the trial court gave the jury an additional instruction on the legal principle of parties to a crime. An instruction on this legal principle had not been included in the original charge given to the jury at the close of the case. Appellant objected to the giving of the charge and moved for a mistrial. The grounds for appellant’s objection and motion were that the issue of whether appellant were a party to the burglary rather than the principal had not been raised at trial, that neither the State or appellant had requested the charge and that appellant had not been given the opportunity to argue the issue to the jury. The trial court overruled appellant’s objection and denied his motion for mistrial. The trial court’s ruling is enumerated as error.

“ ‘ “[I]t is the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in (a) case” so as to enable the jury to judiciously decide the guilt or innocence of a defendant. [Cits.]’ [Cit.]” (Emphasis supplied.) Turner v. State, 178 Ga. App. 888, 890 (3) (345 SE2d 99) (1986). Accordingly, it is immaterial that neither the State nor appellant had requested the charge on parties to a crime. “It seems to be a general proposition that the necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. [Cits.] . . . ‘[0]ur review is limited to determining whether that discretion was abused, taking into account the sensitive nature of the judge’s responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations.’ [Cit.] Reviewing the . . . additional instructions on parties to a crime ... , in this light, we do not believe that the court exceeded its discretion in giving them. . . . ‘[W]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.’ [Cit.] . . . Since the recharge [on parties to a crime] was not only warranted by the evidence but also legally accurate and not confusing or misleading as to amount to an abuse of discretion, we find no error. Moreover, we find that [appellant] was not prejudiced as a result of the trial court’s denial of his requests to argue to the jury concerning these additional instructions. [Cits.]” Taylor v. State, 169 Ga. App. 842, 844 (2) (315 SE2d 661) (1984). See also Welch v. State, 257 Ga. 197, 198 (1) (357 SE2d 70) (1987); Barraza v. State, 149 Ga. App. 738, 739 (2) (256 SE2d 48) (1979).

Decided April 4, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Helen A. Pryles, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76030.
    CARACENA v. THE STATE.
    (368 SE2d 532)
   Carley, Judge.

Appellant was arrested for shoplifting. She was afforded a preliminary hearing in Atlanta Municipal Court, where her counsel filed a written demand for “speedy trial.” Appellant was bound over to the Fulton County Superior Court and a felony indictment charging theft by shoplifting was subsequently issued. Citing the provisions of OCGA § 17-7-170, appellant moved for discharge and acquittal based upon the State’s failure to try her in accordance with the demand for speedy trial which she had filed in municipal court. Following a hearing, the trial court denied the motion for discharge and acquittal. Appellant filed this direct appeal from the trial court’s order. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

Decided April 4, 1988.

Robert S. Devins, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William Fincher, R. Andrew Weathers, Assistant District Attorneys, for appellee.

“This case is controlled by our recent decision in State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987): ‘ “[A] demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. [Cit.]” [Cit.]. . . . [OCGA § 17-7-170] clearly provides that “[a]ny person against whom a true bill of indictment ... is found . . . may enter a demand for trial. ...” Therefore, interpreting this statute literally, only a person who has been indicted or otherwise formally charged with a crime can invoke the rights afforded by OCGA § 17-7-170.’ It follows that the trial court correctly denied appellant’s motion for acquittal.” Wilson v. State, 186 Ga. App. 190 (366 SE2d 826) (1988).

Appellant’s reliance on State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986) is misplaced. The Spence decision “concerned [a] traffic-related [offense] which may be prosecuted on the [Uniform Traffic] [C]itation without the necessity of returning a formal accusation pursuant to OCGA § 17-7-71. [Cits.] Such an exception does not apply to the crime of [theft by shoplifting], and [any] citation [which may have been] issued in the present case was not sufficient to constitute an accusation [or indictment] against [appellant as] the defendant herein. Accordingly, [appellant’s] demand for speedy trial was prematurely filed and the trial court [properly denied her] motion for acquittal.” State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    76106.
    JOHNSON DEVELOPMENT COMPANY v. JOE SHEEHAN & ASSOCIATES, INC.
    (368 SE2d 546)
   Deen, Presiding Judge.

In the action underlying this appeal of a judgment rendered on a contract dispute, Mike Nunn Associates, Inc. (not a party to the instant appeal; hereinafter referred to as “Nunn”) sued appellee Joe Sheehan & Associates, Inc. (Sheehan), for moneys allegedly due for work Nunn had performed on a public relations brochure which Sheehan had contracted to prepare for appellant Johnson Development Company (Johnson). Sheehan filed a third-party complaint against Johnson, seeking judgment in the amounts sought by Nunn. Johnson counterclaimed, alleging that the third-party complaint constituted abusive litigation. The trial court, sitting without a jury, entered judgment in favor of Nunn against Sheehan and in favor of Sheehan against Johnson. Johnson has appealed the latter judgment to this court, contending that the trial court erred in finding sufficient evidence to support the judgment, inasmuch as appellee allegedly failed to prove the performance or non-performance of a condition precedent. Held:

Decided April 4, 1988.

Michael D. Barber, for appellant.

Timothy W. Wolfe, John W. Chambers, Sr., for appellee.

Our scrutiny of the record in its entirety, including affidavits, depositions, and trial transcript, indicates that there was sufficient evidence adduced to authorize the judgment below. The appellate court determines the sufficiency of the evidence, not its weight. Russell v. State, 181 Ga. App. 665, 666 (353 SE2d 565) (1987).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76158.
    WALKER v. THE STATE.
    (368 SE2d 547)
   Deen, Presiding Judge.

John Lewis Walker was convicted of violating the Georgia Controlled Substances Act and appeals contending that he was denied his right to a thorough and sifting cross-examination of the sheriff and that the trial court erred in admitting his confession into evidence.

1. The sheriff testified that the salary costs and expenses of undercover agents were borne by the GBI and that the Chattooga County Sheriff’s Department is responsible for the expenses of the confidential informant. On cross-examination he testified as to the cost to the county and the state for the undercover operation, but when defense counsel asked where the agent was housed and the cost of his hotel expenses, the State objected on the basis that the place the agent stayed was confidential and the cost was immaterial.

“ ‘[T]he scope of cross-examination lies largely within the discretion of the trial court. It will not be disturbed by this court unless it is shown there has been an abuse of that discretion. [Cit.]’ ” Mullins v. State, 157 Ga. App. 204, 207 (276 SE2d 877) (1981). Dill v. State, 222 Ga. 793 (152 SE2d 741) (1966). As the testimony sought by the defendant was irrelevant, the trial court did not abuse its discretion by sustaining the State’s objection. This enumeration is without merit.

Decided April 4, 1988.

Edward F. Hurley, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

2. A GBI agent advised appellant of his constitutional rights at the sheriff’s office shortly after his arrest. He indicated that he understood his rights after having the opportunity to read the waiver form. He then made a statement to the officer that he may have sold marijuana, but he did not remember selling anything to Agent DeLoach.

A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will withstand attack on appeal unless they are clearly erroneous. Gates v. State, 244 Ga. 587, 590 (261 SE2d 349) (1979). We find no error.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76186, 76187.
    JOHNSON et al. v. THE STATE.
    (369 SE2d 358)
   Deen, Presiding Judge.

Freddie Lee Johnson and Timmie Louis Johnson appeal from their convictions of theft by taking. The evidence showed that a residence had been burglarized, and later that same day, appellants were found in possession of the items taken. They claimed that they found them by the side of the road. The victims testified that when they drove up to their home on the day of the robbery they noticed a car containing two men coming out of the driveway. They identified appellants’ vehicle at trial from photographs as either the vehicle seen leaving their residence or one identical to it. The items taken from the home were also identified by photograph as belonging to them. Their value was stated to be between $3,000 and $4,000.

Appellants’ appointed counsel have filed motions in this court requesting permission to withdraw and, in accordance with Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967) and Bethay v. State, 237 Ga. 625 (229 SE2d 406) (1976), filed briefs raising points of law which might arguably support the appeals. Pursuant to the rulings in Anders and Bethay, we conducted an extensive examination of the records and transcripts filed in these cases in order to determine if the appeals are, in fact, frivolous. On the basis of that review, we have granted counsel’s motions to withdraw and find that the requirements of Anders and Bethay have been met, that no reversible error appears in the records, and that a rational trier of fact could have found from the evidence presented at trial that the appellants were guilty beyond a reasonable doubt. Drayton v. State, 157 Ga. App. 872 (278 SE2d 758) (1981).

Decided April 4, 1988.

Harry D. Dixon, Jr., District Attorney, for appellee.

Judgments affirmed.

Carley and Sognier, JJ., concur.


text:
    76249.
    ROBINSON v. THE STATE.
    (368 SE2d 533)
   Deen, Presiding Judge.

Dennis Lamar Robinson was tried by a jury for the offenses of armed robbery and possession of a firearm by a convicted felon. He was found guilty on both counts and contends on appeal that the court below erred in denying his motion for leave to retain a psychiatrist to assist in his defense because insanity was the only defense asserted at trial. Held:

The motion was filed prior to trial and stated that the court needed to determine appellant’s mental state at the time he committed the armed robbery, and that he intended to raise the issue of his sanity at the time of the robbery. He contended that he could not form the requisite intent to commit the offenses because of his intoxication. The trial court ordered that he be examined by a psychiatrist in order to aid the court in determining his mental state at the time of the armed robbery and his competency to stand trial. The psychiatric examination was done, and the psychiatrist was of the opinion that the accused was sane at the time the crime was committed. His history of alcoholism was noted, and the psychiatrist recommended that he receive treatment for it. The report also noted the stress under which Robinson had been placed since losing his job.

After receiving the psychiatrist’s report, the court held a hearing to determine if Robinson should have an expert appointed to assist him in his defense. At the hearing, defense counsel merely asserted that appellant’s defense would be entirely psychiatric notwithstanding the findings in the evaluation report. No evidence of other psychiatric problems was presented to the court. The trial court denied the motion, holding that the accused had failed to make a showing that his sanity would be a significant factor at trial.

Decided April 4, 1988.

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

“[W]here a showing is made that the defendant’s sanity is likely to be a significant factor at trial, the state is required to provide an indigent defendant with access to the assistance of a competent psychiatrist in preparing the defense.” Lindsey v. State, 254 Ga. 444, 448 (330 SE2d 563) (1985), discussing Ake v. Oklahoma, 470 U. S. 68 (106 SC 1087, 84 LE2d 53) (1985). The mere filing of a motion does not constitute a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. Id. at 448.

In the instant case, as in Eady v. State, 182 Ga. App. 293, 297 (355 SE2d 778) (1987), the court ordered a psychiatric examination of the accused. The report found he was competent to assist in his defense, that he knew the difference between right and wrong, that he was able to understand the legal proceedings he faces, that his intellectual capacities are well preserved, and that he was aware of the nature and the seriousness of the charges against him. The psychiatrist did note his past history of alcohol abuse and recommended treatment, but found no evidence of a mental disorder which would have aggravated his ability to distinguish right from wrong, and no evidence of a delusional compulsion. The psychiatrist went on to find the aforementioned stress factor, which precipitated a drinking episode after a long period of abstinence, during which the crimes were committed. While interim concerns of chronic care center on “treatment,” the ultimate penal process points toward criminal “punishment” for any crimes committed. See Burger v. State, 118 Ga. App. 328 (163 SE2d 333) (1968), and Grimes v. Burch, 223 Ga. 856 (159 SE2d 69) (1968).

We find that, in the absence of a finding of any type of insanity which would be a significant factor in appellant’s defense, the trial court did not err in denying the motion. The defendant was required to make a showing that his sanity was likely to be a significant factor at trial. Lindsey v. State, supra. This he failed to do.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76258.
    A. H. FRIEDMAN, INC. v. AUGUSTA BURGLAR ALARM COMPANY et al.
    (368 SE2d 534)
   Deen, Presiding Judge.

Appellant Friedman, Inc. (Windsor), contracted with appellee Augusta Burglar Alarm Co., Inc. (Augusta), to install and service a burglar alarm system which would register at the 911 center if a break-in were to occur. The system required a dedicated telephone line, which was furnished and installed by appellee Southern Bell. On July 25, 1982, a red light flashed and a buzzer sounded at the 911 center. Personnel there determined that the signals indicated a break-in at Windsor, and a patrol car was dispatched, arriving in approximately three minutes. The front door was locked and showed no signs of forcible entry; all the jewelry cases had been neatly cleared, however, and the safe had been burned open and rifled of all the merchandise it contained, as well as certain costly equipment used in the jewelry business. The terminal for the burglar alarm, which was located on the wall five feet above a stair ascending the side of a nearby building, was found to have been tampered with; a pair of wires clearly marked “Windsor Jewelers Burglar Alarm” had been disconnected, as had other wires in the unlocked terminal box. Subsequent investigation indicated that, because the burned safe was cold, the actual entry must have taken place five to six hours before the burglars left the store, apparently sounding the alarm at that time. The burglar alarm itself was missing; the burglars had presumably taken it with them.

Windsor brought an action against Augusta and Southern Bell, alleging negligence. An additional count alleging breach of contract was brought against Southern Bell. On each count plaintiff/appellant sought to recover $536,000, the amount at which the stolen goods were valued. Windsor filed a motion in limine that evidence of insurance payments be excluded; this was denied. Southern Bell filed an in limine motion that evidence that Windsor employees had taken polygraph tests be excluded; this was granted. Windsor contended that Southern Bell was negligent in not acceding to Windsor’s requests that appellee remove the label from the wires, lock the box, or move the box to a secure location. Southern Bell was apparently pursuing the theory that the burglary was an “inside job.”

Windsor sought a certificate of immediate review, alleging that OCGA § 51-12-1 (b) applies only to personal injury claims and is only prospective in application. We granted the application, and on appeal Windsor enumerates as error the trial court’s denial of its motion in limine, expressly on the basis that OCGA § 51-12-1 (b) permitted evidence of insurance, and the granting of Southern Bell’s motion regarding exclusion of polygraph evidence. Held:

1. We first address the propriety of the trial court’s ruling on the motion regarding polygraph evidence. “The present rule in Georgia is that the results of polygraph examinations are not admissible into evidence, absent an express stipulation by the parties that they shall be admissible. State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). This rule applies to civil actions. [Cits.] With regard to evidence of the mere fact that a polygraph examination has. been given, our Supreme Court has held as follows: ‘. . . [T]he mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised, or if any inferences that might be raised as to the result are not prejudicial. This determination should not, of course, encourage attempts to introduce evidence concerning lie detectors . . .’” Munford, Inc. v. Anglin, 174 Ga. App. 290, 294 et seq. (329 SE2d 526) (1985). In Anglin the court went on to hold, at 294, that, because polygraph examinations are unreliable, evidence concerning their use should be admitted “only when clearly relevant and unmistakably nonprejudicial.” Stack v. State, 234 Ga. 19, 24 (214 SE2d 514) (1975). We find no merit in this enumeration.

2. Windsor alleges that OCGA § 51-12-1 (b), which in effect negates the operation of the “collateral source” rule in Georgia, applies to personal injury only and not to property damage. This subsection became effective July 1, 1987; the instant case went to trial September 8, 1987. By its terms, subsection 1 (b) provides in pertinent part that “[i]n any civil action ... for the recovery of damages arising from a tortious injury in which special damages are sought to be recovered . . . , evidence of all compensation, indemnity, insurance (other than life insurance), wage loss replacement, income replacement, or disability benefits or payments available to the injured party from any and all governmental or private sources and the cost of providing and the extent of such available benefits or payments shall be admissible for consideration by the trier of fact. The trier of fact, in its discretion, may consider such available benefits or payments and the cost thereof but shall not be directed to reduce an award of damages accordingly.” The statute makes no distinction between personal injury and injury to property but employs the inclusive term “tortious injury” without any qualification. We are not persuaded, either by appellant’s arguments purporting to distinguish between “injury” and “damage,” or by its further argument regarding the purported non-applicability of the sub-section in cases where subrogation rights are involved, that the legislature intended that the statute’s effect be confined to such a narrow scope as appellant advocates.

3. Appellant further contends, however, that, because the cause of action accrued before July 1, 1987, the subsection is inapplicable to the instant case. If OCGA § 51-12-1 (b) be construed as substantive, this is correct; if procedural, then the converse is true. OCGA § 1-3-5; Talmadge v. Cordell, 170 Ga. 13 (152 SE 91) (1930); Pritchard v. Savannah St. & R. Co., 87 Ga. 294 (13 SE 493) (1891). “Laws looking only to the remedy or mode of trial may apply to contracts, rights, and offenses entered into, accrued, or committed prior to their passage.” OCGA § 1-3-5. “A change ... in rules of evidence is considered remedial; and remedial changes in law may validly operate retroactively.” Bryan v. Bryan, 242 Ga. 826, 829 (251 SE2d 566) (1979).

In Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988), the Supreme Court construed this section and decided the issue in appellant’s favor. We quote relevant portions from this recent decision.

“2. Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.] These rules guide us to the result required in this case once it is determined whether OCGA § 51-12-1 (b) is procedural (evidentiary) or substantive. In order to do that we must consider the collateral source rule as it existed prior to the enactment of OCGA § 51-12-1 (b).

“3. Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. [Cits.] The collateral source rule is primarily substantive in nature. It gives a party the right to recover damages undiminished by collateral benefits. It refuses credit to the benefit of a tortfeasor of money or services received by the plaintiff in reparation of the injury or damage caused which emanate from sources other than the tortfeasor. [Cits.] ‘The collateral source rule, stated simply, is that the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish the plaintiff’s recovery of damages.’ R. Sedler, The Collateral Source Rule and Personal Injury Damages: The Irrelevant Principle and the Functional Approach, 58 Ky. L. Rev. 36, 38 (1969). Apparently the rule came into Georgia law through the opinion of Judge Samuel Lumpkin in The Western & Atlantic Railroad v. Meigs, 74 Ga. 857 (1885). . . .

“For a resolution of the case at hand it is important to understand there are two consequences of the collateral source rule. One is substantive and is that damages are not reduced by the amount of collateral benefits plaintiff receives. The other consequence of the rule is evidentiary in effect. Because of the substantive consequence of the rule, evidence of collateral benefits is not generally material. . . . The substantive collateral source rule removes the proposition as an issue in the case and the evidence rule of materiality precludes proof of collateral benefits. Barrett v. Western & Atlantic R. Co., 144 Ga. 47 (85 SE 1016) (1915); Partridge v. Lee, 116 Ga. App. 800 (159 SE2d 113) (1967). To the extent the rationale of Bryan v. Bryan, 242 Ga. 826 (251 SE2d 566) (1979) [supra] differs with that expressed here, it will not be followed. . . .

Decided April 4, 1988.

H. Andrew Owen, Jr., Perry A. Phillips, for appellant.

“With the foregoing in mind the law regarding the collateral source rule could be altered either to work a substantive change or a procedural change. To change the substantive consequence of the collateral source rule the law would provide that collateral benefits shall reduce damages. Evidence of collateral benefits would, of course, be material under such a substantive rule. To change the procedural consequence of the collateral source rule the law would be that an exception to the evidentiary rule of materiality is that collateral benefits are admissible. The judge would instruct the jury that collateral benefits shall not reduce damages. What effect should be given such evidence is difficult to say unless the substantive rule is also changed, but a mere change in the procedural rule is at least theoretically possible.

“4. . . .

“We note . . . that the statute clearly works a procedural (evidentiary) change of law because evidence of collateral benefits becomes admissible whereas it was formerly considered immaterial. If the statute required that the trier of fact be charged to reduce damages by collateral benefits it would clearly work a substantive change of law also. However, the statute requires no such charge. In fact such a charge is prohibited. The statute only provides that the trier of fact ‘in its discretion, may consider’ collateral benefits. We construe this to mean the trier of fact may reduce damages according to collateral benefits or not reduce damages. It is within the discretion of the trier of fact. This works a substantive change of law since damages may, under the statute, be reduced by collateral benefits, contrary to prior law.

“5. OCGA § 5I-12-I (b) works a substantive change in the law governing collateral benefits. There is no expressed or clear intention of the legislature to give the statute retroactive effect. Therefore it shall be given prospective effect only . . .” Under Polito v. Holland, then, appellant is correct, and the trial court improperly denied the motion.

Judgment reversed.

Carley, J., concurs in Divisions 1 and 3 and in the judgment. Sognier, J., concurs in Divisions 1 and 2 and in the judgment.

Gail D. Stebbins, for appellees.


text:
    76276.
    DUKES v. THE STATE.
    (369 SE2d 257)
   Deen, Presiding Judge.

Garrett Leon Dukes brings this appeal from his convictions of armed robbery and aggravated assault.

1. Evidence that appellant was evicted from his apartment the day before the robbery, that he made a $400 cash down payment on an automobile two days after the robbery, that he made no further payments, and that his car was ultimately repossessed was properly admitted at trial as it was relevant to the issue of guilt. The fact that he was evicted because he was unable to pay his rent, but could make a down payment on an automobile two days after the robbery of the convenience store, was admissible to show a motive for the robbery. Eviction and repossession of a motor vehicle are not criminal activities, and such evidence does not have such a prejudicial impact as does evidence of other crimes. Its relevancy outweighed any alleged prejudicial impact. Thomas v. State, 176 Ga. App. 53 (335 SE2d 135) (1985).

2. The defendant requested the following charge: “Eyewitness identification, while persuasive, is not conclusive.” He asserts error in the trial court’s refusal to give it. The court agreed with the prosecutor that the requested charge was argumentative and that the legal principle involved was accurately and adequately covered in the pattern charge. We have examined the charge as given by the court and agree. “ ‘[W]here the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error.’ [Cit.]” Crawford v. State, 236 Ga. 491, 493 (224 SE2d 365) (1976).

3. After the State presented its case and the defendant had been examined on direct examination, the jury was excused and the court advised appellant that because he had been forty-five minutes late to court that morning, and based upon the nature of the charges and the overwhelming evidence against him, and the substantial likelihood that he would flee, the court was revoking his bond until the jury returned with its verdict. The court then carefully warned the deputies not to let the jury know that the defendant was in custody. Defense counsel made a motion for a mistrial, claiming that revocation of his client’s bond denied him his right to a fair trial. The court denied the motion, offered the accused time to “get himself together” and again cautioned the deputies. Counsel claims that the court improperly expressed an opinion as to guilt.

Decided April 4, 1988.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Assistant District Attorneys, for appellee.

We find no violation of OCGA § 17-8-57, as that section is limited to remarks made before the jury. Jones v. State, 250 Ga. 498 (299 SE2d 549) (1983). Moreover, the court made every effort to ensure that the jury did not learn that the defendant’s bond was revoked.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76294.
    FLOURNOY v. THE STATE.
    (368 SE2d 538)
   Deen, Presiding Judge.

The appellant, John E. Flournoy, Jr., was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. At the trial, an undercover police officer testified that on March 6, 1987, he had purchased some crack cocaine from a man known as the “Big Man” or “Junior,” who was later identified as Flournoy; the officer also was allowed to recount two subsequent, similar purchases from Flournoy on March 13, and March 14, 1987. Flournoy’s defense was that he had been out of town at the time of the drug sales and that another man, and not he, was known as the “Big Man.” On appeal, Flournoy contends that the evidence was insufficient to support the conviction, and that the trial court erred in certain evidentiary rulings and in the charge to the jury. Held:

1. Flournoy objected to the undercover officer’s testimony about two subsequent purchases of cocaine from Flournoy a week after the initial purchase, on the grounds that the evidence was irrelevant and placed his character in issue. However, it is axiomatic that once the identity of the defendant as the perpetrator of the similar transaction has been shown, and the extrinsic offense and the offense charged are sufficiently similar so that proof of the former tends to prove the latter, such evidence is admissible to show identity, motive, plan, scheme, bent of mind, and course of conduct. Williams v. State, 251 Ga. 749 (4) (312 SE2d 40) (1983); Durham v. State, 181 Ga. App. 155 (351 SE2d 683) (1986). In the instant case, the same parties were involved and the circumstances of all three drug purchases were almost identical; the evidence certainly was admissible.

Flournoy also contends that this evidence was improperly admitted because the trial court failed to determine its admissibility before the evidence was presented to the jury, outside the presence of the jury, contrary to the requirements of Rule 31.3 of the Uniform Superior Court Rules. Before any evidence was presented, however, the trial court did approve this evidence of similar transactions “contingent upon the proper foundation being laid as to whether or not we reach that point in the trial it is admissible or not,” following the prosecutor’s explanation that the extrinsic evidence would show motive and mode of operation. This sufficiently complied with Rule 31.3. See Hall v. State, 181 Ga. App. 92 (351 SE2d 236) (1986).

Decided April 4, 1988.

John G. Runyan, G. G. Joseph Kunes, Jr., for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, J. David Miller, Assistant District Attorneys, for appellee.

2. The actual cocaine that the undercover officer purchased from Flournoy on March 13, 1987, was admitted into evidence. Flournoy now contends that the trial court erred in failing to give cautionary instructions to the jury about the limited purposes for which the evidence was admitted. The trial court did give cautionary instructions about the limited purposes for which the evidence of similar transactions was admitted, and it was unnecessary to give further, specific instruction about this exhibit.

3. We will not address Flournoy’s contention that the trial court erred in the jury instructions by referring to him as John E. Flournoy, Jr., also known as “Big Man” or “Junior.” At the conclusion of the instructions to the jury, the trial court specifically inquired whether there were any objections to the charge, and defense counsel replied in the negative, without reservation. In such a circumstance, the present objection to the charge was waived. Jones v. State, 181 Ga. App. 651 (2) (353 SE2d 593) (1987).

4. Viewing the evidence in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Flournoy guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76312.
    ROSE v. THE STATE.
    (368 SE2d 539)
   Deen, Presiding Judge.

Appellant was found guilty on two counts of aggravated child molestation, consisting in part of forcing oral sex on the child, and innocent on a charge of aggravated assault. He moved for new trial on the general grounds and on the ground of an unspecified violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and corresponding portions of the Constitution of Georgia. He subsequently filed an amended motion, alleging that the trial court erred in not giving an instruction on enticing a child for indecent purposes in conjunction with the instructions on aggravated child molestation, and that the court had further erred in not excusing a juror who allegedly informed the court that she could not listen to the evidence, the arguments of counsel, and the court’s charge on the law and thereafter make an impartial judgment. Upon denial of the amended motion for new trial, he appeals to this court, enumerating as error the trial court’s failure to strike for cause the juror who had stated that she could not render a fair and impartial verdict. Held:

The following verbatim excerpt from the trial transcript indicates what occurred during the episode to which appellant’s enumeration of error refers. (Defense counsel is conducting voir dire and has just asked each of the panels of potential jurors to indicate by a show of hands how many are either parents or grandparents.)

“ ‘[Sjome of you [are] parents and some of you [are] grandparents. I would ask you can you honestly answer whether or not you can sit with a fair and impartial mind and listen to the facts of the case and make a judgment on these facts . . . , [or] does the fact that you have children or grandchildren [mean] that you cannot listen to the facts of this case and make an honest and sincere opinion as to what the verdict should be?’

“(Thereupon, two jurors responded in the affirmative.)

“(Thereupon, a discussion [at the bench] was held off the record.)

“The Court. ‘Now, the two ladies that just answered [defense counsel’s] question, could you listen to all the evidence . . . and argument of counsel and the charge of the Court . . . and then render a fair and impartial verdict according to the evidence and the law given to you in charge. . . .?’

“(Thereupon, one juror responded in the affirmative and one juror responded in the negative.)

“The Court: ‘All right, the juror who feels that they [sic] could not do so, you are excused.’ (Emphasis supplied.)

“(Thereupon, said juror was excused.)” (Emphasis supplied.)

The court then asked if there was anyone else who could not listen to the evidence, the argument, and the charge and then render fair and impartial verdicts — to which query there was no response. The court further inquired whether there was anyone whose impartiality had been adversely affected by publicity in the media, and again there was no response. The court then remarked, “They seem to be qualified.” The jury was then selected and the trial commenced. The record does not reveal whether the juror who was not excused was chosen for the trial. The transcript does indicate, however, that defense counsel made no objection, motion, or other exception to the array or to the composition of the jury.

Decided April 4, 1988.

Billy C. Mathis, Jr., for appellant.

Hobart M. Hind, District Attorney, for appellee.

The official court reporter of the Dougherty Judicial Circuit certified the trial transcript to be “a true and accurate” transcript. The record reveals no attempt, by defense counsel or anyone else, to traverse, traduce, or impugn the accuracy of the transcript. By raising no objection, defense counsel waived the right to except to the jury’s composition, either at the trial level or on appeal. Sanders v. State, 181 Ga. App. 117 (351 SE2d 666) (1986); Hamilton v. State, 181 Ga. App. 279 (351 SE2d 705) (1986). Moreover, our examination of the record in its entirety indicates that the error enumerated on appeal simply did not occur. See Tennon v. State, 235 Ga. 594, 595 (220 SE2d 914) (1975); Williams v. State, 162 Ga. App. 363, 365 (291 SE2d 89) (1982). We find no merit in appellant’s assignment of error.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76358.
    FLOYD v. THE STATE.
    (368 SE2d 541)
   Deen, Presiding Judge.

Rick Lee Floyd was convicted of three counts of burglary, one count of entering an automobile with intent to commit a theft, and one count of theft by taking. On appeal, he contends that the trial court should have granted his motion to sever the offenses and that the theft by taking count was a lesser included offense of the burglary count.

1. After the prosecutor explained that the evidence would show that property stolen from a series of different locations was found in Floyd’s apartment at the time of his arrest, that it would be difficult to counsel the witnesses who heard his admissions as to how he obtained the goods, and that all of the offenses occurred within approximately one month’s time, the court below found that there was a common scheme in bringing stolen property into the accused’s apartment and storing it there and that the defendant would receive no benefit from severing the offenses.

Offenses may be joined which are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. “If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense.’ [Cits.]” Isbell v. State, 179 Ga. App. 363, 366 (346 SE2d 857) (1986). In the instant case, the trial court found a common scheme in the theft related offenses and a series of connected acts. Accordingly, it did not err in denying the motion to sever.

Decided April 4, 1988.

Walter J. Clarke II, for appellant.

Thomas C. Lawler III, District Attorney, Tracy A. Lorowitz, Assistant District Attorney, for appellee.

2. Appellant’s contention that he should not have been convicted of the burglary of the Northwood Golf and Country Club on October 2, 1986, and the theft by taking of a golf cart from the cart barn, which was used to transport the items stolen from the kitchen and pro shop in the main building on the same date, is without merit. The golf cart was removed from a fenced area on the grounds, not from the inside of the burglarized clubhouse. There is a hole in this one argument advanced on this point, as it was a separate offense and not included in the burglary offense. McClinic v. State, 172 Ga. App. 54 (321 SE2d 796) (1984), relied upon by appellant, is not controlling on whether the theft of the golf cart was a lesser included offense of the burglary because the theft by taking and burglary counts in McClinic were based on theft of the same property.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76375, 76376.
    ALLEN v. THE STATE (one case).
    (369 SE2d 357)
   Deen, Presiding Judge.

The appellant, Wendell Allen, was convicted of armed robbery. On appeal, Allen contends that reversible error occurred in the jury instructions and when the State impermissibly placed his character in issue. Held:

1. Allen contends that the trial court erred in failing to instruct the jury on alibi, even though defense counsel specifically stated, in response to the trial court’s inquiry, that he had no objections to the jury charge. The Supreme Court has held otherwise. Hill v. State, 237 Ga. 523 (3) (228 SE2d 898) (1976).

Decided April 4, 1988.

Christopher C. Edwards, Timothy C. Cramer, Otis H. Weaver, Jr., for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Eric D. Hearn, Assistant District Attorney, for appellee.

2. Allen’s other complaint about the trial court’s charge on the definition of theft similarly was waived by virtue of his negative response to the trial court’s specific inquiry as to any objections to the jury instructions. Taylor v. State, 174 Ga. App. 323 (1) (329 SE2d 625) (1985).

3. During the presentation of the State’s evidence, the arresting police officer testified that he found a needle and syringe, which contained a liquid, in Allen’s pocket. He asked if Allen were diabetic, and when Allen said no, the officer placed him under arrest for violation of the Georgia Controlled Substances Act, and as a suspect for armed robbery. Upon cross-examination of Allen later in the trial, the State elicited more testimony from Allen about the syringe, as well as Allen’s testimony about being unemployed for six months. We will not address Allen’s present contention that this evidence impermissibly placed his character in issue, because no objection to any of this testimony was raised before the trial court. Roose v. State, 182 Ga. App. 748 (1) (356 SE2d 675) (1987).

Judgments affirmed.

Carley and Sognier, JJ., concur.

       There is really only one appeal from Allen’s conviction; two appeals having been docketed because two notices of appeal were filed.


author: Sognier, Judge.

text:
    75895.
    SELBO v. THE STATE.
    (368 SE2d 548)
   Sognier, Judge.

Appellant was convicted of burglary and he appeals. Appellant contends the trial court erred by overruling his plea in bar of trial and his motion to suppress identification testimony.

Although appellant titled his pretrial motion a PLEA IN BAR AND MOTION TO SUPPRESS IDENTIFICATION TESTIMONY it was, in fact, a motion to dismiss the indictment because a pretrial photographic spread was allegedly tainted, and any testimony about the pretrial identification would deny him his right to due process of law. On appeal, appellant presents no argument as to dismissal of the indictment, but confines his argument to denial of his motion to suppress testimony relating to any pretrial identification. Accordingly, we will confine our discussion to that issue.

Evidence presented at a hearing on appellant’s motion disclosed that Billy Shuman, the victims’ grandson, went to his grandparents’ home to rake the lawn. On arrival he went to the back of the house to pick up tools and saw appellant on the back porch. Shuman asked appellant what he was doing in the house, and when appellant could not get out the back door, he locked the screen door, ran into the house and locked a glass window door. Shuman ran to the front of the house but could not get in; as he was going back around the house appellant came out a rear bedroom window and started running. Shuman chased appellant about a mile or more but could not catch him. Shuman returned to his grandparents’ house and used a neighbor’s telephone to call the police. After the police checked the house Shuman accompanied them to the police station, and about three hours after the incident, assisted a police artist in making a composite sketch of appellant. One week later Shuman was called to the police station and was shown a photo spread of six persons, and asked if he could identify anyone. When Shuman got to the third photograph, which was a picture of appellant, he immediately identified appellant as the person he had seen at his grandparents’ home. The police did not tell Shuman that appellant’s photograph was in the group of six photos, nor did they tell Shuman that a suspect was in the group of photographs. When Shuman saw appellant’s picture he stated without hesitation: “This is the man. I’ll never forget his face.” Shuman remained at the police station and shortly after lunch was asked to step into a room where the police had brought appellant; Shuman walked into the room, occupied only by appellant and one other man, and identified appellant.

Appellant argues that viewing the photo spread, followed a short time later by the in-person identification, created the likelihood of irreparable misidentification. We do not agree. First, the trial court excluded testimony about the in-person identification, which was subsequent to the photo spread identification. Thus, the in-person identification could not have tainted a previous identification. Second, Shuman identified appellant’s picture immediately upon seeing it, and was positive in his identification of appellant. Further, the police said nothing to Shuman other than asking him to look at the photos, so their actions were not impermissibly suggestive and did not taint the photo spread identification in any way. Third, Shuman testified that as of the time appellant came out the window of his grandparents’ house, appellant’s facial features were fixed in Shuman’s mind. This, together with Shuman’s testimony that “I’ll never forget his face,” makes it clear that his identification was based on his observation of appellant at the scene of the offense, not on any impermissibly suggestive identification procedures employed by the police. Last, the burglary occurred about 11:00 a.m. on a bright, sunny day, and Shuman was face to face with appellant for about a minute when he was first observed on the porch.

Decided April 5, 1988.

Kevin E. Perry, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Based on the evidence we find nothing which tainted the pretrial identification by photo spread, and nothing in that identification which would taint Shuman’s in-court identification of appellant. Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594) (1976); Bonner v. State, 160 Ga. App. 902, 903 (1) (288 SE2d 612) (1982). In the instant case there is absolutely no evidence to show that the photo spread identification was tainted in any way. Even if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981). Shuman’s identification of appellant had such an independent origin, namely, his observation of appellant at the scene, evidenced by the fact that Shuman’s composite sketch, made only three hours after the offense was committed, was almost identical to appellant’s photograph, shown to Shuman a week later. Accordingly, the trial court did not err by denying appellant’s motion to suppress the identification testimony.

Judgment affirmed.

Deen, P. J., and Corley, J., concur.


author: Birdsong, Chief Judge.

text:
    76012, 76013.
    FORCE v. McGEACHY; and vice versa.
    (368 SE2d 777)
   Birdsong, Chief Judge.

Appellant, Michael J. Force, filed an application for discretionary appeal which was granted on September 17, 1987. Appellant filed a notice of appeal on September 25, 1987, and appellee/cross-appellant, Francis L. McGeachy, filed a cross-appeal on October 9, 1987.

Jessie A. Wood bought a 1976 BMW automobile from his cousin; the odometer was broken on the vehicle when he bought it. He later sold the car to Deborah A. Upthegrove-Nicholls. She sold the car a year later to the appellant Force. The odometer was still broken, and she informed the appellant that it had not worked when she bought the car. Subsequently, appellant Force sold the car to appellee McGeachy. Appellee test drove the car and observed that the odometer did not work, but appellant’s conversation caused the appellee to believe that the odometer had not been broken too long. When he subsequently signed the certificate of title to the vehicle, appellant wrote that the odometer reading was 80,800, and, thus, certified on the face of the document that to the best of his knowledge this was the vehicle’s actual mileage. Although the same section of the certificate of title contained two exceptions, one of which read that “[t]he odometer reading is not the actual mileage. CAUTION: ODOMETER DISCREPANCY,” appellant did not check either exception in the box provided on the certificate.

Appellee subsequently obtained information that the odometer probably had been broken for a longer period of time than indicated, and attempted to no avail to rescind the contract with appellant.

Appellee brought suit against appellant for violating state and federal odometer statutes. OCGA § 40-8-5; 15 USC §§ 1981-1991. Appellee’s subsequent motion for partial summary judgment was granted in part and denied in part by the court. The trial court determined that appellant was in violation of OCGA § 40-8-5 (a) and (c), but held that the question of whether appellee was entitled to recover from the appellant under either 15 USC §§ 1981-1991 or OCGA § 40-8-5 (g) (1) presented a jury question. In so ruling, the trial court concluded that although intent to defraud is not a necessary element of an OCGA § 40-8-5 violation, it is an essential element of the federal violation and is required to support an award of damages under OCGA § 40-8-5 (g) (1).

Appellant judicially admitted that when he signed the certificate of title he wrote thereon that the odometer registered 80,800 miles; that the odometer was not operating when he bought the car; and, that 80,800 was not the actual mileage of the vehicle. However, appellant denied any intent to defraud appellee, and maintained that he believed he was only certifying that the odometer reading on the vehicle was 80,800 rather than certifying to the actual mileage of the car. Appellant further testified that he did not check either of the exception boxes because he did not see them on the form, and that he filled out the form in accordance with the notary’s instructions. Appellant also asserted that he did not know how long the odometer had been broken. In rebuttal, appellee testified that appellant did not tell him that the odometer had been broken before he got the car.

On June 30, 1987, the jury returned a verdict (filed that same day) finding that appellant had defrauded appellee, that appellant was liable to the appellee in the amount of $-0-, and that appellee was not entitled to “expenses of litigation.”

The following enumerated errors merit discussion. Held:

1. Appellant enumerates as errors that the court erred in its order and judgment in which it overruled and denied appellant’s motion to set aside the judgment made and entered in this case, which was contrary to the jury’s verdict finding no damages; and, that the court erred in its judgment, which is contrary to the jury verdict.

OCGA § 40-8-5 (g) and 15 USC § 1989 (a) provide that any person who with intent to defraud violates the pertinent statutory odometer requirements shall be liable for three times the amount of actual damages sustained, or $1,500, whichever is the greater, and in the case of any successful action to enforce this liability the “costs of the action,” together with reasonable attorney fees as determined by the court. The jury was given the following charge concerning these statutory requirements: “I instruct you that no seller of any automobile shall give a false statement to a buyer of said automobile as to the cumulative mileage registered on the odometer. If any person violates the aforesaid requirement with the intent to defraud, said person shall be liable in an amount equal to the sum of: one, three times the amount of actual damages sustained or $1,500, whichever is greater; and, two, in the case of any successful action to enforce the foregoing liability, the cost of the action together with the reasonable attorney fees as determined by the Court.”

Notwithstanding this charge the jury found that appellant had defrauded the appellee but declined to award any damages or expenses of litigation. After the jury was polled, a bench conference was held and the jury was dismissed thereafter by the trial judge. Following the departure of the jury, appellee McGeachy made an immediate motion (labeled as a renewal of a motion that apparently had been made at the bench conference) “that the Court direct the jury to make” the statutory required damage award. The trial judge took the motion under advisement, and clarified on the record that he had directed appellee’s counsel “to direct the motion not in the presence of the jury,” as the issue required correction by the court if meritorious.

Subsequently, on July 1, 1987, the trial judge entered judgment in the case at bar; finding that the jury violated 15 USC § 1989 (a) and OCGA § 40-8-5 (g) by awarding no damages to the appellee after finding that the appellant had “intentionally defrauded” him. The trial judge, citing as authority OCGA § 9-12-5, proceeded to “mold the verdict so as to do full justice to the parties” by entering judgment in favor of the appellee and against the appellant in the sum of $1,500, and assessed costs of the action against appellant.

It is clear that the jury’s verdict did not fully conform to the law, as they found that the appellant had defrauded the appellee but nevertheless declined to award damages in direct contravention of the terms of both the federal and state odometer statutes and of their charge by the trial court. The trial court could have determined that the jury’s verdict does not cover the issue of damages submitted, and then, in the exercise of his discretion, corrected this procedural deficiency by giving the jury additional instructions and permitting it to consider the case again and save the parties the expense of another trial. See generally Department of Transp. v. Worley, 150 Ga. App. 768 (8) (258 SE2d 595); Davis & Shulman’s, Georgia Practice & Procedure, 5th ed., § 22-2, p. 464. In fact, this in essence is the relief sought at trial by the appellee. However, the trial judge directed appellee’s counsel not to make a motion for relief until after the jury was no longer present and then dismissed the jury before the proper motion could be made.

Under the provisions of OCGA § 9-12-9, the judgment and execution shall conform to the verdict. And, “[i]n a proper case, the superior court may mold the verdict so as to do full justice to the parties in the same manner as a decree in equity.” OCGA § 9-12-5. However, this “molding” authority is not without limits. Thus, while a verdict in certain circumstances may be “ ‘reformed or remodeled in the presence of the jury before they have retired from the box,’ ” Suber v. Fountain, 151 Ga. App. 283, 291 (259 SE2d 685), once the jury has dispersed “the [trial] judge has no power either to add to or to take from their findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. . . . Nor can the trial judge accomplish the same result as amending the verdict in matter of substance by entering a decree different from the verdict of the jury, thereby eliminating certain substantial findings of the verdict, and substantially modifying or changing other findings of the jury.” Parrish Bakeries v. Wiseman Baking Co., 104 Ga. App. 573, 575 (122 SE2d 260); accord Joe Yates Bldrs. v. Tyson, 173 Ga. App. 548, 550 (327 SE2d 234), citing Fried v. Fried, 208 Ga. 861 (3) (69 SE2d 862). Further, a verdict “may not be amended in matter of substance” after it has been received and recorded and the jury has dispersed. OCGA § 9-12-7. And, this prohibition remains “even if it appears that the jurors intended to find liability against the proper party.” Harrell v. Bank of the South, 174 Ga. App. 384, 386 (330 SE2d 147). In this case, the trial judge attempted to amend the jury’s verdict, after they had dispersed, regarding a matter of substance, the award of damages. This action exceeded the authority vested by law in the trial judge to “mold” the verdict, and thus cannot be sustained.

In view of our disposition of this issue, appellant’s other enumerations of error need not be addressed. However, in the interests of judicial economy, we will consider the two enumerations of error contained in the appellee’s cross-appeal in order to provide the parties with timely guidance concerning these matters.

2. Appellee/cross-appellant enumerates two errors in his cross-appeal, both of which present issues of first impression for this court. The first enumerated error is that the court erred in not awarding the cross-appellant at least $3,000 in damages, as he is entitled to recover the statutory minimum of $1,500 damages under both the federal and the state odometer statutes.

In the case at bar, we find that it was the same course of conduct by the appellant/cross-appellee which gave rise to both the federal and state odometer statute violations. The damage provisions of both statutes, OCGA § 40-8-5 (g) and 15 USC § 1989 (a), mandate the award of treble the amount of actual damages or $1,500, whichever is greater, whenever the statutory requirements of the legislation are violated with the intent to defraud. Also, 15 USC § 1989 (b) expressly confers jurisdiction over actions brought under 15 USC § 1989 (a) to the United States district courts and to “any other court of competent jurisdiction.”

We believe that these two substantially similar consumer protection laws, although one is state and the other federal, share a similar general purpose. That purpose is “to insure good faith dealing in the automobile industry, to establish safeguards for the protection of the public and to punish odometer tamperers.” See generally Gonzales v. Van’s Chevrolet, 498 FSupp. 1102, 1106 (D.C. Del. 1980); see also Kantorczyk v. New Stanton Auto Auction, 433 FSupp. 889, 893-894 (D.C. Penn. 1977).

However, nothing on the face of either statute warrants a conclusion that it was intended that a successful consumer litigant, in effect, could reap the benefit of six times the amount of actual damages suffered or a minimum award of $3,000 merely because he asserts in a state judicial forum causes of action, arising from the same general course of conduct, under both the federal and the state odometer law. Such a result would vest the consumer with a major windfall, and one that is not needed to advance the legislative purpose behind the odometer statutes. Moreover, double recovery of this nature would appear to conflict with the general rule that double recovery of damages is not permitted. Cf. Davis v. Davidson, 175 Ga. App. 451 (1) (333 SE2d 648) (recognizing but distinguishing the case facts from the general rule), citing Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345 (173 SE2d 723). Accordingly, we conclude that appellee/cross-appellant’s first enumerated error is without merit.

3. Appellee/cross-appellant’s second enumerated error is that the trial court erred in not awarding the cross-appellant attorney fees.

In this case, the trial judge submitted the question of award of expenses of litigation to the jury, which declined to make such an award to the cross-appellant. Thereafter, the trial judge in his attempt to “mold” the jury verdict elected to award the cross-appellant the costs of the action but not attorney fees. The decision not to award attorney fees was made in the face of uncontradicted testimony by another member of the legal profession that the reasonable value of the cross-appellant’s services in this case was $1,200 or $1,800.

First, we find that both OCGA § 40-8-5 (g) (1) and 15 USC §§ 1989 (a) (2) on their face require the trial court and not the jury to determine reasonable attorney fees and to award costs of the action whenever the litigation to enforce the odometer statutes is successful.

Further, we find that both OCGA § 40-8-5 (g) (1) and 15 USC § 1989 (a) (2) on their face mandate that reasonable attorney fees be awarded in the case of any successful action to enforce the odometer statutes. See Fleet Investment Co. v. Rogers, 505 FSupp. 522, 523-524 (D.C. Okla. 1980) (Congress specifically provided that any person found to be violating the odometer requirement of (15 USC § 1981-1991) would be liable for “ ‘the costs of the action together with reasonable attorney fees as determined by the Court’ ”); see also Hall v. Riverside Lincoln Mercury-Sales, 499 NE2d 156, 161 (Ill. App. 1986) (mandatory attorney fees are a necessary part of the federal odometer Act); but compare Hathcock v. G&M Bldrs., 601 F2d 846, 850-851 (5th Cir. 1979) (even when attorney fees are authorized by the federal odometer statute whether such fees will be awarded is discretionary with the trial judge).

We believe that mandatory attorney fees are a necessary part of the federal and state statutes “as few attorneys would otherwise actively pursue cases under [these Acts] given the likelihood of small damages awards.” Hall v. Riverside Lincoln Mercury-Sales, supra at 161. Moreover, “[i]f this court sets a precedent awarding attorneys’ fees in such a niggardly fashion as to discourage from handling this type of litigation the kind of lawyers we want in . . . court, then we will have aborted the purpose of the [legislature] in passing the legislation.” Gimarc v. Neal, 417 FSupp. 129, 131 (D.C. S.C. 1976). Accordingly, we find that the trial judge erred in refusing to award any attorney fees whatsoever to the cross-appellant’s counsel. However, we hasten to add that as the amount awarded as attorney fees “is within the sound discretion of the trial court” we will not reverse an actual fee award absent a showing of abuse of discretion. Hall v. Riverside Lincoln Mercury-Sales, supra at 161.

It should also be noted that in the event that this case is retried in whole or in part (see, e.g., Anthony v. Anthony, 143 Ga. App. 691, 694 (240 SE2d 167)), and if the cross-appellant should once more be successful, his counsel would be entitled to an award of reasonable attorney fees based not only on all proceedings prepared for and conducted at the trial court level but based on his representation of his client at the appellate level as well. See Fleet Investment Co. v. Rogers, supra at 524; Gonzales v. Van’s Chevrolet, supra at 1106. And, the trial court “has the power and is the proper forum in which to determine reasonable attorney fees for services performed,” including those on appeal. Fleet Investment Co. v. Rogers, supra at 524.

Decided April 5, 1988.

Alan B. Smith, J. Laddie Boatright, for appellant.

W. Douglas Adams, for appellee.

Judgments reversed and remanded.

Banke, P. J., and Beasley, J., concur.


text:
    76029.
    ALEXANDER v. THE STATE.
    (368 SE2d 550)
   Birdsong, Chief Judge.

David Alexander, appellant, brings this appeal from his conviction for the offenses of financial transaction card theft (OCGA § 16-9-31) and forgery (OCGA § 16-9-1). Alexander was indicted jointly with Angela Risner for both offenses. Risner had entered pleas of guilty to these offenses and testified against Alexander, without any agreement with the prosecution for her testimony. Risner stated that she and Alexander worked for the same employer and became friends. Eventually they decided to move into the same apartment and live together. Alexander denied sexual involvement, but Risner said she was in love with Alexander. Risner testified that Alexander came home one day with a Visa credit card belonging to Polly E. Hall. Alexander told her he had “found” it. The following day Risner took the card, went to the Roswell Road K-Mart and purchased a stereo. Risner stated that Alexander “said something about he wanted a new TV set so we just took the card and went back.” Risner testified that Alexander picked out the TV set he wanted and was standing beside her when she signed Polly E. Hall’s name to the sales slip, and used the Visa card to charge the purchase to Hall. They took the TV set home to their apartment. Other purchases were charged to the credit card and an investigator had no difficulty finding the address used by Alexander and Risner and recovering the goods obtained. The K-Mart employee who made the sale of the TV set viewed a photo lineup and selected out of it the photographs of Alexander and Risner.

Alexander denied being present at the time of the forgery and has no plausible explanation of how the sales clerk identified him, except that he was in the store and was on crutches. However, it was pointed out to him that the photographs used in the lineup did not show any crutches. Neither does Alexander have any “idea or recollection where the [credit] card came from.” He testified that his “financial status is not to be questioned,” for he had over $500 in his personal checking account and several thousand dollars in a savings account. The record shows that he advised the court “he was not able to hire a lawyer” and the judge appointed the public defender to represent him.

The versions of these events by Alexander and Risner are in conflict. The jury elected to accept the testimony of Risner. Alexander brings this appeal from the jury verdict of guilty. Held:

1. Appellant contends the verdict and judgment of guilty on both counts are contrary to the evidence and the law, and strongly against the weight of the evidence. Construing the evidence in favor of the verdict reached by the jury, as an appellate court is required to do (Rutledge v. State, 245 Ga. 768, 769 (267 SE2 199)), we find the evidence sufficient to enable any rational trier of facts to find the existence of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Ineffective assistance of counsel is urged on appeal. Appellate counsel argues that “[w] finesses were clearly available who could have been compelled to shed the light of truth upon the prosecution of David Alexander.” The accused’s counsel, at trial, foresaw the coming events and spread upon the record his representation and invited the court’s inquiry into the adequacy of counsel’s defense of the accused. Alexander was asked if he had “enough time to meet and discuss this case” with his counsel, and responded: “Yes.” Counsel also asked Alexander if he “had any witnesses” he would get subpoenaed, but Alexander advised the court: “No additional witnesses I can think of right now other than my father and he is in court today.” Counsel asked if Alexander wanted to make any statement concerning his representation, and whether they had sufficient discussion of the case. Alexander had no statement to make to the court and was satisfied with the amount of time with counsel. The trial court also clarified the record to show appellant’s claim of indigency and counsel was appointed on November 7. Trial was set for November 17, but counsel advised the court that Alexander had told him of several witnesses he wanted subpoenaed and the court directed counsel to obtain the subpoenas. After the subpoenas were obtained from the clerk, Alexander decided “he didn’t want to subpoena such witnesses after all.” The court ascertained that the subpoenas were still “in hand,” but counsel was advised by his client he had no wish to call additional witnesses. The court was unable to get a jury panel that day and postponed the trial for one more day. Trial was held on November 19, 1986. On appeal, appellate counsel avers this was “a sad commentary on the representation provided” appellant at trial, and “[w] finesses were clearly available” who could have “shed the light of truth” upon these offenses. The record does not support counsel’s claims but establishes sufficient time, opportunity, and offer of assistance by the court and counsel to obtain witnesses, which offer was declined by appellant, in court.

“The accepted standard regarding ineffective assistance of counsel is ‘not errorless counsel and not counsel judged ineffective by hindsight, but counsel . . . rendering reasonably effective assistance.’ ” Pugh v. State, 250 Ga. 668, 670 (300 SE2d 504). “ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Ford v. State, 255 Ga. 81, 85 (335 SE2d 567). To prevail on a claim of ineffectiveness, a convicted accused must show (1) counsel’s performance was deficient, i.e., was not reasonable under the circumstances, and (2) that this “deficient performance prejudiced the defense,” i.e., that there is a reasonable probability, but for counsel’s unprofessional errors, the result would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). The record before us shows accused’s defense counsel was aware that after the jury finished trying his accused, the accused would start trying him. Counsel attempted to forestall such a claim by airing any allegation of ineffectiveness before trial and before the judge. It cannot be said here that counsel failed to function in any meaningful sense as the State’s adversary (United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657)) or that he failed to provide appellant with the opportunity to support his allegation of ineffectiveness before trial. The record does not support appellate counsel’s claim of ineffectiveness of the trial defense counsel. Cook v. State, 255 Ga. 565, 579 (340 SE2d 891); Pearson v. State, 182 Ga. App. 239 (355 SE2d 470).

3. It is alleged that the trial court erred in charging the jury upon the issue of conspiracy. We find no error. Because the evidence showed the actual forgery of the sales slip was done by Risner, presumably because the fraudulent credit card was in the name of a woman, the trial court charged on parties to the offense (OCGA § 16-2-20) and conspiracy (OCGA § 16-4-8). Alexander and Risner were jointly indicted for these offenses, although not charged with the offense of conspiracy. Because the evidence tended to show they acted in concert, conspiracy may be proved though not alleged in the indictment. Greene v. State, 155 Ga. App. 222, 224 (270 SE2d 386); Anderson v. State, 153 Ga. App. 401, 403 (265 SE2d 299); Simpkins v. State, 149 Ga. App. 763, 768 (256 SE2d 63).

4. Appellant filed a motion for new trial alleging the general grounds. The motion was subsequently amended to add claims of ineffective assistance of counsel and newly discovered evidence. This court has found no merit with the sufficiency of the evidence claim or the allegation of ineffectiveness of counsel at trial. The “newly discovered evidence” consisted principally of evidence of lack of credibility of Risner, and Risner’s statements to those witnesses that the newly purchased items in the apartment belonged to her, and evidence of good character of Alexander.

It is incumbent upon a party moving for a new trial on the basis of “newly discovered evidence” (OCGA § 5-5-23), to show to the satisfaction of the trial court: (1) such evidence has come to movant’s knowledge since the trial, (2) its recent discovery was not due to want of due diligence not acquiring the evidence sooner, (3) such evidence is so material that it would probably produce a different verdict, (4) it is not cumulative only, (5) the affidavit of the witness, or witnesses, has been produced for the court, or its absence accounted for, and (6) a new trial will not be granted if the only effect of the newly discovered evidence would be to impeach the credit of a witness. Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436); Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792). Counsel has labeled his motion as an “extraordinary motion for new tried.” “ ‘Extraordinary motions for a new trial are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.’ Wallace v. State, 205 Ga. 751 (2) (55 SE2d 145) (1949). Accord Music v. State, 244 Ga. 832, 833 (262 SE2d 128) (1979).” Dick v. State, 248 Ga. 898, 899 (287 SE2d 11). Here, the newly acquired evidence principally relates to good character of appellant, which is cumulative to that presented during trial, and evidence showing lack of credibility of Risner, which is specifically excluded as a basis for the grant of the motion. The remaining evidence is that Risner told witnesses that the newly acquired items in the apartment where she and Alexander lived were “hers.” Appellant has a problem. He is attempting to show that this “new” evidence would produce a different verdict, because it would show that Risner was a “liar” and is not believable, but wants to convince the court to believe Risner when she says that the newly acquired items were “hers.” It is difficult to support both sides of antagonistic inferences.

We will not consider this “newly discovered evidence” in isolation as to whether it would produce a different verdict, for even though it attacks the strength of the State’s case, we will consider the weakness of the appellant’s case. Risner testified that Alexander brought the credit card home. Alexander was asked: “How did you obtain the credit card? A. I did not obtain the credit card. Q. Well, where did it come from? A. I don’t know. . . . Q. So it just materialized? A. What did? Q. The card. A. I have no idea or recollection where the card came from.” In addition, Alexander defended on the ground that he did not need a new TV — he had one at home, and his “financial status is not to be questioned” for he had “over $500” in his checking account at “Heritage Bank” and “several thousand dollars” in his savings account. In his sworn affidavit filed with the trial court, he wrote that he had in “checking or savings accounts or other deposits with any bank or financial institution” $40 in a checking account in the Heritage Bank. Of course, there may be a plausible explanation for the conflict in these sworn statements, but we concur with the trial court in its conclusion that such “new” evidence does not contradict the essential facts upon which appellant’s conviction was based, i.e., he and Risner lived together and shared the same apartment where the TV and credit card were located, and that appellant was present during the commission of the forgery and was identified by the sales clerk as a participant.

Decided April 5, 1988.

Gale W. Mull, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John M. Turner, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

We find this enumeration to be without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76285.
    CHURCH v. SMS ENTERPRISES.
    (368 SE2d 554)
   Deen, Presiding Judge.

Dorothy Church, appellant here, was injured November 9, 1981, when she fell on an allegedly slippery floor while in the course of her regular duties at the plant of her employer, a division of Dundee Mills, Inc. (Dundee), which produces cotton toweling. Approximately four months prior to the fall, Dundee, as a part of its renovation of the plant, had partially enclosed a formerly open area and had had two coats of a urethane finish applied to the concrete floor by appellee SMS Enterprises, Inc. (SMS). According to the contract between Dundee and SMS, a third and final coat of the finishing material (this coat to contain sand or a similar gritty substance) was also to be applied, but, according to the evidence of record, Dundee requested that application of the final coat be postponed until after the enclosure was completed and some machinery installed. Dundee was to notify SMS when to return to apply this final coat. After the postponement had been arranged, SMS rendered a bill for work completed to date, noting thereon that the bill was for two-thirds of the total price, commensurate with the completion of two-thirds of the work contracted for. The final bill bore a notation that the sum billed thereon represented the final one-third.

While traversing the floor in question en route back to her regular work station after delivering toweling samples to the laboratory (a duty she performed approximately once a week), appellant’s right foot slipped and she fell to the floor, severely bruising her right hip, fracturing her right wrist, and sustaining other injuries. She testified on deposition that, because of the floor’s shiny, “whitish” appearance, she could not see whether it was wet and, moreover, was not thinking about the floor’s condition at the time of the fall; and that she had seen no foreign substance on the floor. She further testified that she regularly traversed the area (at least four or five times a month) and knew that the floor was wet from time to time because of the nature of the activities at the plant. She alleged that SMS was negligent in installing the finish and in not warning Dundee and its employees that it was inherently dangerous; and, moreover, that the floor, in its condition at the time of her injury, was defective.

After Mrs. Church filed her complaint SMS moved for summary judgment, alleging that the finish was not inherently dangerous; that floors’ propensity to be slippery when wet is a fact within common knowledge; that appellant had had ample opportunity to observe the nature of the floor’s surface; that SMS had no control over the floor’s becoming wet; and that, having been notified by Dundee to defer application of the third coat of finish until renovation of that area of the plant was completed, SMS had no right of access to the floor or any reason to know that it had been returned to regular use or that it might be especially hazardous; and, therefore, had no duty to warn — particularly since the floor’s condition would be obvious to anyone using it regularly. The Rockdale County Superior Court granted summary judgment, and Mrs. Church appeals, enumerating as error the award of summary judgment. Held:

It is the duty of the employer to provide its employees with a safe workplace and to warn them of any unusual conditions that may exist, or of any conditions of which employees may have no knowledge. OCGA § 34-7-23; Simowitz v. Register, 60 Ga. App. 180 (3 SE2d 231) (1939); Nashville, Chattanooga &c. R. v. Hilderbrand, 48 Ga. App. 140 (172 SE 87) (1933). This duty is not abated when construction or renovation is being done at the workplace; indeed, it might be argued that the employer’s duty is enhanced in such situations, inasmuch as it would have knowledge which the ordinary employee might not possess. Atkinson v. Empire Printing &c. Co., 76 Ga. App. 206 (45 SE2d 280) (1947). In the instant case Dundee undertook to have such work done in a portion of the plant, and contracted with SMS to do the floor refinishing. The contract was between Dundee and SMS; appellant Church was not a party to the contract but was, at best, arguably an incidental beneficiary. See OCGA §§ 13-3-42; 13-3-44 and annots; Restatement of Contracts, 2d pars. 133, 135, 147. Had she elected to bring an action against SMS as a third-party beneficiary of the contract, she would almost certainly have been deemed to lack standing to do so. Instead, she has sued in tort.

In order for a tort action in negligence to lie, there must be injury to the plaintiff resulting from the defendant’s negligence. OCGA § 51-1-1; Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456 (260 SE2d 860) (1979). A tort may occur as a consequence of a relationship which a contract has established between the parties to that contract. City of Douglas v. Johnson, 157 Ga. App. 618 (278 SE2d 160) (1981). “Thus, if a contract imposes a legal duty upon a party thereto, which duty exists apart from the specific obligation of the contract, the neglect of that duty is a tort founded upon a contract. [Cits.] In such a case the liability arises out of the breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. [Cits.]” Mauldin v. Sheffer, 113 Ga. App. 874, 878 (150 SE2d 150) (1966).

Moreover, “[t]he law imposes upon persons of professional standing performing medical, architectural, engineering [services], and those performing other and like skilled services, pursuant to their contracts made with their clients, an obligation to exercise a reasonable degree of care, skill and ability, such as is ordinarily exercised under similar conditions and like circumstances by persons employed in the same or similar professions. [Cits.] This is a duty apart from any express contractual obligation. Therefore, persons of this class performing services pursuant to their contracts . . . have been held to be liable in tort for their negligence in failing to exercise the required degree of skill . . . [Cits.] In a proper case the question of whether the defendant exercised the required degree of skill is, like any other question of fact, to be decided by a jury.” Id. at 880. In the instant case Dundee had engaged SMS, a professional floor-finisher, to provide a certain finish to a floor in Dundee’s plant — a finish that required the application of two coats with a somewhat shiny surface, and a third and final coat which was slip-resistant. There is no evidence that SMS did not go about its performance of the contract in a workman-like manner. It is undisputed that it was at the instance of Dundee that SMS was prevented from completing the contract as anticipated: that is, by applying the final gritty, slip-resistant coat of finish.

When, as in the case at bar, the work being undertaken is at the instance of the employer — and particularly when, as here, the alleged tortfeasor is working under contract with the employer and must perform the work subject to the employer’s requirements as to time and place of performance — and when the employer unilaterally instructs the other party (the contractor) to delay completion of the work until some later time which is convenient for the employer, then we cannot agree with appellant that the contractor can be held liable for an injury which arguably may be a result of the failure to complete the work contracted for. Neither Dundee nor anyone else has disputed that it was upon Dundee’s instructions that SMS did not complete the work as originally contemplated, by applying the final, slip-resistant coating promptly after applying the two base coats. Nor does Dundee — or anyone else — dispute that SMS had no access to. the area for some time after it was ordered to postpone completion of the work and before Mrs. Church’s accident, and therefore had no means of inspecting or in any way exercising dominion and control over the floor, or of issuing any warning that, arguendo, might have been appropriate.

Inasmuch as at the time of the accident the premises were totally under the dominion and control of the employer, Dundee, and Mrs. Church was engaged in her regular duties when the unfortunate incident occurred, her sole recourse is against the employer, through the statutorily provided means of which, according to the record, she has already availed herself. OCGA § 34-9-11; Floyd v. McFolley, 131 Ga. App. 4 (205 SE2d 29) (1974); Echols v. Chattooga Mercantile Co., 74 Ga. App. 18 (38 SE2d 675) (1946). This is not to imply that, under different circumstances, Church would necessarily be denied her right to bring an action against any third-party tortfeasor. Floyd v. McFolley, supra at 5. Moreover, there is no circumstance here that would raise such issues as whether a statutory employer was involved. It is simply that there is no competent evidence of record to sustain appellant’s contention that appellee SMS was in any way negligent in the performance of its work or that, had it been permitted to complete the installation of the floor finish as originally contracted for, a dangerous or defective condition would have been created.

When the defendant moves for summary judgment, he has the burden of piercing the pleadings and affirmatively negating one or more essential elements of the plaintiff’s case. OCGA § 9-11-56; Calhoun v. Eaves, 114 Ga. App. 756 (152 SE2d 805) (1966). The record in the instant case reveals that defendant/appellee SMS succeeded in doing this. We find that the contentions advanced in appellee’s brief in support of its motion for summary judgment and set forth in this opinion, supra, are valid, and that, under a proper analysis, there is no genuine issue of material fact. The trial court correctly granted summary judgment to appellee.

Decided April 5, 1988.

M. Glenn Howell, Sr., for appellant.

I. J. Parkerson, for appellee.

Judgment affirmed.

Corley and Sognier, JJ., concur.

       The record shows that Dundee actually notified SMS that the third coat could be applied in January following Mrs. Church’s accident, and that the coat was applied approximately two weeks thereafter.

       Appellant received workers’ compensation benefits from her employer.


text:
    76003.
    MASTERS v. THE STATE.
    (368 SE2d 557)
   Birdsong, Chief Judge.

John Wayne Masters appeals from his conviction of the offenses of burglary and criminal damage to property. Teresa Kitchens, an employee of the Georgia State Patrol, lived in a mobile home in Jackson County. She worked the shift from 11:00 p.m. until 7:00 a.m. the following morning. On the morning of October 23, 1986, after she left work and did some shopping, she arrived at her mobile home around 9:10 a.m. and found an unknown car in her driveway. She wrote down the license number and walked up to her mobile home. As she reached the corner of the mobile home, she heard five or six gunshots inside the mobile home. She returned to her car and left. She saw a group of cable TV installers nearby and drove there for help. Several of the cable employees entered their truck and started toward her mobile home. They met a 1973 or 1974 silver, rusty Impala automobile driving away from Kitchens’ mobile home. No one could positively identify the driver of the Impala. The license number was called in to the police and an officer went to the home of the defendant and then to the mobile home of the defendant’s sister which was about 300 yards away. The silver Impala, with the license number recorded by Kitchens, was in the driveway. A check of the hood revealed that the engine was still warm.

When the police arrived at Kitchens’ mobile home, they found Kitchens’ pistol had been used to shoot five times through the side of the mobile home. The officers also found two Marlboro 100 cigarettes just outside the entrance. A check of all the officers at the burglary scene revealed that no one smoked Marlboro 100’s. When the officer spoke to the defendant at his sister’s mobile home, the officer asked Masters if he smoked. He said, “Yes.” He was asked if he had any cigarettes and he produced a package of Marlboro 100’s. The Marlboro 100’s given to the officer by the defendant and those found at Kitchens’ mobile home were introduced in evidence. The officer who testified at that time said he also had smoked Marlboros for 19 years and was aware that each cigarette had a number at the point where the cigarette attaches to the filter. Defense counsel asked the witness to show him the number on the cigarettes found at Kitchens’ mobile home. The witness “licked” the cigarette and the number “6” appeared on the cigarette at the base of the filter. Counsel then asked the witness to lick the cigarettes in the package taken from the defendant. The number “6” appeared on them. The witness testified that in his 19 years of smoking, every Marlboro 100 had the same number on each cigarette in the package and the same number on each cigarette in the entire carton.

The witnesses who saw the driver of the car when he left Kitchens’ mobile home, could only say that he had “sandy-blonde” colored hair. The defendant does not now have “sandy-blonde” colored hair. It was described as “light brown.” The witnesses stated that they did not get a good look at the driver of the car and could not be sure of his identity.

The approximate time that Ms. Kitchens arrived at her mobile home was 9:10 a.m. At that time, according to defendant’s statement, he was at home, sleeping, with his car parked in front of his mobile home. Masters said he left his keys in the car while he slept, but told the police he “would have heard if someone drove his car off or if the engine cranked because it was only parked about twenty feet from the trailer.” Masters said that he did not have a watch and the time was not quite clear in his mind. After he awoke, he drove over to his sister’s mobile home and it was there that the police first saw him. The jury reached a finding of guilty on both counts and Masters brings this appeal. Held:

1. Viewing the evidence in the light favorable to the jury verdict, as we are required to do on appeal, we find it is sufficient to enable any rational trier of facts to find the existence of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Over defendant’s objection, the trial court allowed the State to introduce a certified copy of defendant’s indictment, conviction and sentence for burglary of a dwelling house, committed in February 1980. The defense claimed the lack of similarity and passage of five years since conviction rendered it inadmissible. The State based its claim of admissibility upon the conviction’s being a similar act, i.e., a burglary of a dwelling, with the intent to commit theft, as tending to show intent and bent of mind. The trial court agreed with the State. “[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). Here, the defendant pled guilty to the former crime, both crimes were burglaries, both were of dwelling houses, and both were alleged as being committed for the purpose of theft. In essence, the issue is whether the former offense is relevant as tending to prove the latter. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence. Patterson v. State, 233 Ga. 724, 725 (213 SE2d 612). Secondly, initial admissibility of evidence is a matter which rests largely within the sound discretion of the trial judge. Alexander v. State, 239 Ga. 108,110 (236 SE2d 83). We find no abuse of discretion of the trial court admitting the prior burglary as tending to prove intent and bent of mind. See Wright v. State, 253 Ga. 1, 3 (316 SE2d 445); Coggins v. State, 168 Ga. App. 12 (4) (308 SE2d 36).

3. Defendant alleges error in the trial court “allowing in evidence [cross-examination of a witness] for the purpose of showing that the appellant had a general propensity for crime.” The prosecutor asked the defendant’s mother, who appeared as a witness on his behalf, if she was aware of his prior conviction for burglary. Counsel placed no objection to the question and answer. Kathy Thornton, defendant’s sister, was asked the same question and counsel objected and moved for a mistrial. The objection was overruled and the mistrial motion denied. The general rule is that admitting arguendo the evidence would not be admissible, where the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless admission of the same evidence over objection. Payne v. State, 152 Ga. App. 471, 473 (263 SE2d 251); Tuggle v. State, 149 Ga. App. 844, 845 (256 SE2d 104). A defendant cannot be harmed legally by admission of evidence which has already been placed before the jury, without objection.

4. Defendant contends the trial court improperly restricted him from introducing evidence “that another person committed the crime for which appellant was charged.” “ ‘In the trial of an accused, it is always proper and relevant for the accused to introduce evidence to show that someone else, and not the accused, is the guilty party.’ ” Bell v. State, 227 Ga. 800, 806 (183 SE2d 357). However, the evidence sought to be introduced in the instant case was the presence of one Homer Stephens near the site of the burglary on the evening preceding its commission. The trial court admitted evidence that Homer Stephens had taken Masters’ car before, without permission, and had “sandy-blonde” hair and permitted his recall by defendant’s counsel for additional questioning. Stephens maintained that Masters had taken him from Jackson County to Winder the night before the burglary and left him at a pool hall. There was other evidence that Masters was babysitting for his sister on the evening before the burglary. However, there is no disputing the fact that whoever was driving the car found in the possession of Masters before and after the burglary, was the party who was in Kitchens’ mobile home. Masters made a statement to the police'that “[n]obody has driven my car today. . . . While I was at my trailer [from 8:40 a.m. for approximately “forty or fifty minutes”], the car was parked in the front yard of my trailer with the keys in the switch. I would have heard if someone drove my car off or if the engine cranked, because it’s only parked about twenty feet from the trailer.”

The evidence excluded was that Stephens was seen in the area near the burglarized mobile home on the evening before the burglary. The trial court explained the reason for his ruling to counsel, i.e., unless he could place Stephens in the car at the time of the burglary, he saw no relevance in testimony he had been seen in the area of the burglary the night before, but if Stephens had been seen in the area on the morning of the burglary, he would admit such testimony.

The trial court initially determines admissibility of evidence and has great discretion in determining relevancy. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360). And, in the absence of abuse of such discretion, an appellate court will not interfere. Downs v. State, 145 Ga. App. 588, 593 (244 SE2d 113). We have found no abuse of discretion.

5. Defendant enumerates as error the State’s failing to provide him with copies of statements of witnesses, prior to trial, in which the driver of the car departing the burglary site was described as having “sandy-blonde” hair. Defendant filed a Brady motion requesting exculpatory evidence in the State’s file. The State possessed such evidence. It was exculpatory and should have been presented to defendant’s counsel in response to the Brady request. At the beginning of the trial, the motion was discussed and defendant’s counsel made known to the judge that he was aware of such statements. The court remarked that if such statements existed they should have been given to him. The assistant district attorney then stated that counsel must be referring to his witnesses’ statements describing the driver as having “sandy-blonde” hair. One witness described defendant’s hair color as “light brown.” The statements were provided to defendant’s counsel prior to the beginning of the testimony, but after the jury had been impaneled. Counsel was offered the opportunity to examine the witnesses before they testified and accepted. Defendant’s motion for mistrial was denied.

The U. S. Supreme Court noted, in United States v. Agurs, 427 U. S. 97, 103 (96 SC 2392, 49 LE2d 342), that the Brady rule “arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” Our Supreme Court has held that when such evidence is made available during the trial but prior to the witness testifying there is no reversible error. Goodman v. State, 255 Ga. 226, 228 (336 SE2d 757); Castell v. State, 250 Ga. 776, 781 (301 SE2d 234). Further, defendant has not shown prejudice resulting from any failure to disclose such testimony prior to trial. See Tribble v. State, 248 Ga. 274 (280 SE2d 352); Baker v. State, 245 Ga. 657, 662 (266 SE2d 477). We find no reversible error.

Decided April 6, 1988.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

6. Inasmuch as there was sufficient circumstantial evidence to enable any rational trier of facts to find the existence of the offenses charged, beyond a reasonable doubt, it was not error for the trial court to deny defendant’s motion for a directed verdict. Kennedy v. State, 253 Ga. 132 (1) (317 SE2d 822); Lee v. State, 247 Ga. 411, 412 (276 SE2d 590).

Judgment affirmed.

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