text:
    A90A1189.
    SWENSON v. THE STATE.
    (397 SE2d 211)
   Sognier, Judge.

Robert Calvin Swenson was convicted of armed robbery and possession of a firearm during the commission of a crime. He appeals from the judgment entered on the jury’s verdict.

1. Appellant contends the evidence was insufficient to support the jury’s verdict. At trial, John Grimsley III, a Bainbridge pharmacist, testified that on the night of November 17, 1988, as he was locking the front door of the pharmacy a man he identified as appellant drove up and asked if he could fill a prescription. When Grimsley assented, appellant jumped out of the car, brandished a pistol, and ordered Grimsley to open the pharmacy. The two men then entered the shop, and appellant held the gun to Grimsley’s head while ordering him to fill a bag with certain narcotics. After appellant left and Grimsley reported the incident to the police, appellant was spotted driving through Bainbridge later that night. He was apprehended after a fifty mile chase, and a search of his car yielded a .357 Magnum pistol, 11 cartridges, and a number of pill bottles containing narcotics (primarily Dilaudid), which Grimsley identified as those taken from his pharmacy.

Appellant testified at trial and acknowledged having robbed the pharmacy, but asserted a defense of insanity at the time of the crime. He revealed that he had sustained severe spinal injuries in a 1975 boating accident, that his right side was partially paralyzed, and that as a result of attempts to control the continuing pain he experienced, he had taken the narcotic Dilaudid since 1985 and had become addicted. On the day of the robbery, he had been driving from Texas toward Florida when he ran out of medication. He began experiencing intense withdrawal symptoms, and after several unsuccessful efforts to find a physician who would provide him with Dilaudid, he robbed the pharmacy in desperation. He stated that as a result of his condition that night, he did not understand what he was doing, and that “I wasn’t even thinking, much less was it right or wrong.”

Additional evidence was adduced that Dilaudid is a highly addictive drug, and that appellant’s physicians had prescribed the medication for appellant because no other drug had provided relief from the pain he was experiencing. The psychologist appointed by the court to examine appellant opined that although appellant had been abusing Dilaudid at the time of the robbery, he was mentally competent during that time and had understood the difference between right and wrong.

When reviewing a jury’s finding of sanity in a criminal case, appellate courts must determine whether, “ ‘after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.’ ” (Footnote omitted.) Keener v. State, 254 Ga. 699, 701 (334 SE2d 175) (1985). The only two circumstances authorizing a verdict of not guilty by reason of insanity are “where the defendant does not have the ability to distinguish between right and wrong at the time of the crime, OCGA § 16-3-2, and where at the time of the crime the defendant acted under a delusional compulsion which overmastered his will to resist committing the crime, OCGA § 16-3-3.” Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124) (1987). In the case at bar, no evidence of delusional compulsion was presented, and the jury was authorized to find that appellant could distinguish between right and wrong at the time of the robbery,, and thus appellant did not show by a preponderance of the evidence that he was insane at the time. Id.; see Brand v. State, 123 Ga. App. 273, 274-275 (1) (180 SE2d 579) (1971).

Further, appellant’s defense also presented the question of involuntary intoxication as set forth in OCGA § 16-3-4, which provides that a defendant is entitled to a not guilty verdict “when, at the time of the . . . crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong. . . . Involuntary intoxication means intoxication caused by: (1) [consumption of a substance through excusable ignorance; or (2) [t]he coercion, fraud, artifice, or contrivance of another person.” Nonetheless, even assuming, without deciding, that addiction resulting from reliance on a physician’s prescription could constitute “excusable ignorance,” see Johnson v. State, 235 Ga. 486, 489 (220 SE2d 448) (1975), the evidence authorized a finding that appellant could distinguish between right and wrong at the time of the robbery. See Rauschenberg v. State, 161 Ga. App. 331, 332 (1) (291 SE2d 58) (1982). Accordingly, we find the evidence sufficient to authorize a rational trier of fact to convict appellant of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Roundtree v. State, 192 Ga. App. 803, 804-805 (2) (386 SE2d 548) (1989).

Decided September 18, 1990.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, for appellee.

2. Appellant also contends the trial court erred by denying his motion for a continuance. The record reveals that appellant was indicted on February 8, 1989, and counsel was appointed the following week. Appellant’s counsel originally filed the motion on May 5, 1989, three days before the date first set for trial, seeking a continuance until the next term of court on the ground that he had just learned of appellant’s medical condition and needed time to obtain the necessary medical records. The trial court did continue the case for three weeks and authorized a physical and mental examination of appellant. When the case was next called for trial, counsel renewed his motion, asserting that he had just received the results of the court-ordered examination the preceding Friday and had yet to receive appellant’s out of state medical records. Upon ascertaining that the State would consent to the admission into evidence of two letters from appellant’s physicians detailing his medical history and his use of Dilaudid, the trial court declined to continue the case again.

“A motion for continuance is addressed to the sound discretion of the trial court, OCGA § 17-8-22, and this court will not interfere unless it is clearly shown that the court abused its discretion.” O’Neal v. State, 254 Ga. 1, 2 (2) (325 SE2d 759) (1985). The record shows only counsel’s statement that the full medical records were needed to prepare a complete defense, and that showing is insufficient to establish the necessity of a continuance. Id. Under the facts and circumstances of this case, we find no abuse of discretion in the denial of the renewed motion for continuance.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A0838.
    CAPITAL BANK v. CHAMBERS et al.
    (397 SE2d 149)
   Beasley, Judge.

The appellees brought suit seeking to enjoin the violation of a restrictive covenant by the operation of a day care business in their subdivision, and also to recover damages from the bank for selling the property without reference to the covenant. Denial of injunctive relief was reversed in Chambers v. Gallaher, 257 Ga. 795 (364 SE2d 576) (1988). The case proceeded to trial pursuant to a pretrial order stating that plaintiffs sought to recover damages for diminution in value of their respective homes, punitive damages for the deliberate breach of contract by the bank, and attorney fees and expenses of litigation.

At trial the appellees’ attorney conceded that “the claim for property damages is over” because the homeowners who were operating the day care center had moved out of the neighborhood. The bank moved for directed verdict, asserting that appellees could not recover attorney fees and expenses of litigation because they had established no claim against the bank and were not entitled to recover the compensatory and punitive damages originally sought. Appellees argued that since a tort had occurred they were entitled to nominal damages together with costs of litigation. The motion was denied. No instructions were given the jury in regard to awarding nominal damages, but no objection was made to the charge. The jury returned a verdict in the amount of $16,300 against the bank and the former homeowners, assessing one-half to each, and the trial court entered judgment against them jointly and severally for that amount. The bank appeals.

The rule controlling is that “[a] plaintiff must recover other elements of damage before he can recover expenses of litigation. [Cits.]” Herrli Homes v. Roon, 175 Ga. App. 85, 87 (3) (332 SE2d 379) (1985). Accord Cleary v. Southern Motors of Savannah, 142 Ga. App. 163, 165 (1) (235 SE2d 623) (1977); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49, 52 (4) (207 SE2d 567) (1974). The Supreme Court held that the subdivision was entitled to injunctive relief against the former homeowners for operating “a family day care home” in their house in violation of the restrictive covenant. Chambers v. Gallaher, supra at 796. No award of attorney fees and expenses of litigation was or is authorized against the bank on that basis. See Adams v. Cowart, 224 Ga. 210 (6) (160 SE2d 805) (1968). Although nominal damages could have been sought, the jury was instructed only that it could award damages for attorney fees and expenses of litigation. Thus the verdict cannot be construed as including an award of nominal damages to support the recovery of legal fees. Accordingly, the judgment awarding them was unauthorized and is reversed. Herrli Homes v. Roon, supra.

Judgment reversed.

Deen, P. J., and Pope, J., concur.

Decided September 4, 1990

Rehearing denied September 19, 1990 — Cert, applied for.

Gearhiser, Peters & Horton, Robert L. Lockaby, Jr., for appellant.

Gleason & Davis, David J. Dunn, Jr., John W. Davis, Jr., G. M. Adcock, for appellees.


author: Carley, Chief Judge.

text:
    A90A0849.
    BOSWELL v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (397 SE2d 165)
   Carley, Chief Judge.

Appellant-plaintiff was the victim of a criminal attack while an invitee on appellee-defendant’s premises. As the result of injuries that he sustained in this attack, appellant filed this suit against appellee, seeking to recover both compensatory and punitive damages. The trial court denied appellant’s motion for partial summary judgment on the issue of appellee’s potential liability for punitive damages. Pursuant to this court’s grant of appellant’s application for an interlocutory appeal, he appeals from the trial court’s order.

In MARTA v. Binns, 252 Ga. 289 (313 SE2d 104) (1984), the Supreme Court held that appellee may be held liable for punitive damages pursuant to OCGA § 33-34-6 in its capacity as a self-insurer and declined to address the issue of whether appellee may be held liable for punitive damages in its capacity as a tortfeasor. However, this court’s opinion in the same case did address that issue: “Section 22 of the legislation which created MARTA (Ga. Laws 1965, pp. 2243, 2275, [as amended by Ga. Laws 1971, pp. 2091, 2101]) is a clear, complete and absolute waiver of [any] governmental immunity from tort liability. That section provides in [relevant part] as follows: ‘Tort Liability; Insurance. The Authority shall not enjoy governmental immunity from tort liability, but shall be liable therefor as any private corporation except that no execution shall be levied on any property of the Authority prior to ninety (90) days from the date of a final judgment against the Authority. The Authority shall [provide] for adequate insurance, indemnification or similar protection against any loss, liability or other risk, hazard or responsibility to which it may be exposed or which it may accept on account of its property, [personnel] or operations.’ This is an unequivocal pronouncement that MARTA is liable in tort to the extent that a private corporation would be. Corporations in Georgia are liable for exemplary damages. [Cit.]” (Emphasis in original.) Binns v. MARTA, 168 Ga. App. 261-262 (1) (308 SE2d 674) (1983).

Decided September 6, 1990

Rehearing denied September 19, 1990 — Cert, applied for.

James Booker, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, Michael E. Fisher, for appellee.

Salem & Wong, Alvin T. Wong, Beltran & Buckley, Frank J. Beltran, William Q. Bird, amici curiae.

We have reviewed and reconsidered our holding in Binns, and have determined to adhere to it. To the extent that a statutory waiver of governmental immunity specifies an imposition of the same tort liability as that which is borne by a private corporation, a public authority may be held liable for punitive as well as compensatory damages. Since the statutory waiver of whatever governmental immunity appellee might otherwise be entitled to claim does specify the imposition of such tort liability, appellee may be held liable for punitive as well as compensatory damages. It follows that the trial court erred in denying appellant’s motion for partial summary judgment. Compare City of Columbus v. Myszka, 246 Ga. 571, 573 (4) (272 SE2d 302) (1980), holding that “absent statutory authority, a municipality cannot be held liable for punitive damages. [Cits.]” (Emphasis supplied.)

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Cooper, Judge.

text:
    A90A0894.
    EVANCHO v. BAKER.
    (397 SE2d 166)
   Cooper, Judge.

Appellant was injured when the vehicle she was driving collided with a cow in the roadway adjacent to property owned by appellee Baker. At the time of the collision, appellee was allowing co-defendant Mitchell to keep his cattle on her property, provided Mitchell maintained the fence around the property. Appellee agreed to provide the materials for necessary repairs to the fence. The record reveals that appellee was interested in the work that Mitchell performed on the fence, however appellee herself did not inspect the fence, as Mitchell had agreed to do so. Mitchell and appellee are cousins and Mitchell did not pay appellee for the use of her property. Appellant brought this action against both parties for damages resulting from the accident. Appellee’s motion for summary judgment was granted by the trial court and this appeal followed. Mitchell was not included in the summary judgment motion, and he is not a party to this appeal.

1. Appellant first enumerates as error the trial court’s ruling that appellee owned the land, but did not control the cattle under OCGA § 4-3-1 et seq. Section 4-3-3 of the Georgia Code prohibits an “owner” from permitting livestock to run at large or to stray onto public roads. OCGA § 4-3-2 defines “owner” as “any person . . . owning, having custody of, or in charge of livestock.” The evidence in the record before us reveals that appellee, pursuant to her agreement with Mitchell, was not at all involved in keeping the livestock. She simply allowed Mitchell the use of her land as long as he tended to all aspects of his cattle and maintained the fence. Neither appellee’s interest in the property, her provision of supplies to repair the fence, the fact that appellee’s son assisted Mitchell in repairing the fence nor the familial connection between appellee and Mitchell changed the fundamental relationship among appellee, Mitchell and the cattle. Under the circumstances, appellee did not come within the definition of an “owner” as set forth in the Code and therefore cannot be liable under the Georgia livestock law. The cases cited by appellant do not apply to the unique situation involving cattle, and are therefore inapposite. The first enumeration is without merit.

2. Appellant next asserts that the trial court erred in not ruling on appellant’s contention that appellee, the noncustodial landowner, is liable under common law negligence theory for failing to properly maintain and supervise the fence on her property. Although this contention has not yet been considered by Georgia courts, there is case law in other jurisdictions that is instructive. In Rotolante v. Dasilva, 460 S2d 560 (1984), the Florida court held that an owner of land, who neither owns nor has custody or control of livestock has no duty to erect or maintain a fence on the land. Similarly, an Indiana court has held, “it is the duty of the owner and the keeper of the animal to keep him confined, and the mere possession or ownership of land from which an animal strays is not sufficient to make the landowner liable, so long as the landowner is not the keeper of such animal. . . . [Cit.] If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from the negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal. [Cits.]” Blake v. Dunn Farms, 413 NE2d 560, 563 (1980). See also Reed v. Molnar, 423 NE2d 140 (1981). Although the trial court did not specifically rule on appellant’s common law negligence theory, based upon the authorities cited above, we determine that the theory has no merit.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided September 6, 1990

Rehearing denied September 19, 1990 — Cert, applied for.

Towery, Thompson, Gulliver & Bunch, Phillip M. Thompson, Harold S. Gulliver, for appellant.

Miles L. Gammage, Michael D. McRae, Brinson, Askew & Berry, H. L. Cromartie III, for appellee.


text:
    A90A1037.
    THE STATE v. BAKER.
    (397 SE2d 554)
   Carley, Chief Judge.

Appellee was arrested and charged with operating a vessel while under the influence of alcohol in violation of OCGA § 52-7-12. He filed a pre-trial motion to suppress. The trial court conducted a hearing on appellee’s motion and made the following findings of fact: Appellee was stopped while operating his boat in a congested area of the lake. The attention of the officers was drawn to appellee because he had a beer in his hand and was not looking straight ahead. However, appellee was nevertheless operating the boat at a slow, safe speed and “there was no testimony from anyone that the manner of operation, i.e., the movement of the boat, was in any way out of the ordinary.”

On this evidence, the trial court concluded as follows: “[W]hile the situation seemed like a possibly dangerous one, there was no indication before the stop that [appellee] could not handle the situation. If we had the identical circumstances such that a person was driving [his car] in heavy traffic at a safe speed, an officer sees the driver with a beer can, looking at the side of the road, but the car remaining where it was supposed to be, there would be no question but that there was no reasonable, articulable suspicion to stop the driver. Until the legislature passes an open container law, the mere presence of an alcoholic beverage would not meet the appropriate legal test.” Based upon this conclusion, the trial court granted the motion and suppressed the results of an intoximeter test of appellee’s breath and the officers’ testimony regarding appellee’s intoxicated condition. The State appeals from the trial court’s grant of appellee’s motion.

Merely observing a can of beer in the hand of one who is otherwise driving a car or operating a boat in a safe manner may not, in and of itself, constitute probable cause to believe that a violation of OCGA § 40-6-391 (a) or OCGA § 52-7-12 (a) is occurring so as to authorize an immediate arrest. However, the issue of whether such an observation may, in and of itself, constitute an articulable suspicion that such a violation may be occurring so as to authorize a brief investigatory stop is an entirely different matter. “ ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.’ [Cit.]” State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989). “ ‘[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’ [Cits.]” Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784) (1988). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]” United States v. Cortez, 449 U. S. 411, 417 (IIA) (101 SC 690, 66 LE2d 621) (1981).

A violation of OCGA § 40-6-391 or OCGA § 52-7-12 is not necessarily dependent upon the unsafe operation of a car or boat. Subsection (a) (4) of OCGA § 40-6-391 and subsection (a) (4) of OCGA § 52-7-12 prohibit operation of a car or boat by one whose blood-alcohol level is .12 percent or greater. “Impaired driving [or boating] ability is not a ‘fact necessary to constitute the crime’ established in subsection (a) (4). [Cit.] Subsection (a) (4) simply sets out an alternative method of proving the crime established by [OCGA § 40-6-391 and OCGA § 52-7-12].” Lester v. State, 253 Ga. 235, 237-238 (2) (320 SE2d 142) (1984). Accordingly, the trial court’s grant of appellee’s motion to suppress is based upon an erroneous legal conclusion. Contrary to the trial court’s ruling, merely observing a can of beer in the hand of one who is otherwise driving a car or operating a boat in a safe manner does, in and of itself, constitute an articulable suspicion that a violation of OCGA § 40-6-391 or OCGA § 52-7-12 may be occurring so as to authorize a brief investigatory stop. Even though such an observation may not demonstrate probable cause to believe that such a violation is actually occurring, it does demonstrate an articulable suspicion warranting further investigation into whether the imbibing operator of the car or boat nevertheless has a blood-alcohol level of .12 percent or greater. “The legislature, in enacting subsection[s] (a) (4) [of OCGA § 40-6-391 and OCGA § 52-7-12], is not declaring that everyone who has a blood-alcohol count of .12% or higher will be impaired in his driving [or operation of a boat], or that everyone with a lower percentage can drive [or operate a boat] safely. The statute [s] [represent] the judgment that the public interest will be best served if no one with such a high blood-alcohol count drives [or operates a boat].” Lester v. State, supra at 238, fn. 5. Having observed appellee holding a can of beer while operating a boat, the officers were not required to shrug their shoulders and allow a possible violator of OCGA § 52-7-12 (a) (4) to escape.

Decided September 4, 1990

Rehearing denied September 19, 1990

Lydia S. Jackson, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellant.

Spix, Krupp & Reece, Mark Van Spix, for appellee.

Moreover, even if the observation that appellee had a can of beer in his hand while operating a boat were not, in and of itself, a sufficient articulable suspicion to authorize a brief investigatory detention, the trial court nevertheless erred in granting the motion to suppress. At the time that appellee was observed with a can of beer in his hand, he was also looking in a direction other than that in which he was steering the boat. These observations were made in a congested area of the lake where there had been “an awful lot of accidents . . ., fatalities and a lot of boat damage and so forth. . . .” Under these circumstances, the officers were clearly authorized to determine whether appellee’s failure to keep a lookout ahead was a momentary lapse in his attentiveness warranting a mere reprimand as to boating safety or was a manifestation of his intoxication warranting his arrest for boating under the influence. See generally Edwards v. State, 169 Ga. App. 958 (1) (315 SE2d 675) (1984).

The facts, as found by the trial court, did not authorize the grant of appellee’s motion to suppress but demanded the denial of that motion. Accordingly, the trial court’s order must be reversed.

Judgment reversed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


text:
    A90A0718.
    ALLEN v. THE STATE.
    (397 SE2d 472)
   Cooper, Judge.

Appellant appeals his conviction of theft by shoplifting and operating a motor vehicle without proof of insurance.

The evidence viewed in a light to support the verdict showed that a grocery store employee observed appellant putting twenty-one cartons of cigarettes from a cigarette rack into two grocery bags and placing the bags at an unoccupied cash register adjacent to the exit. Appellant then proceeded to another aisle to pay for groceries in a shopping cart. When questioned about the cigarettes, appellant denied that they belonged to him. The store manager called the police, but appellant fled the store by car before the police arrived. Police subsequently stopped appellant in a car matching the description given by a store employee; appellant could not provide the police officer with his driver’s license or proof of insurance and was arrested.

Decided September 19, 1990.

Short & Fowler, James M. Bivins, for appellant.

1. Appellant contends that the evidence was insufficient as a matter of law to authorize the conviction of theft by shoplifting because there was no showing that he appropriated the merchandise to his own use. OCGA § 16-8-14 (a) provides in part that, “A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or in the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment.” Appellant removed twenty-one cartons of cigarettes from the cigarette rack and placed them in two grocery bags. Hence, the evidence was sufficient to enable a rational trier of fact to find appellant guilty of theft by shoplifting beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant argues that there was insufficient evidence of failure to maintain no-fault insurance and cites apparent errors in the indictment and the verdict form. The last page of the indictment and the verdict form list the charge as failure to maintain no-fault insurance, whereas, the body of the indictment clearly reflects that appellant was charged by the grand jury with operating a motor vehicle without insurance. OCGA § 33-34-12 (a) (1). The jury was instructed correctly on the latter offense. “It is a well-settled principle of law that the offense charged in an indictment is not determined by the name given it therein, but by the facts set forth in the indictment.” Driver v. State, 60 Ga. App. 719, 722 (4 SE2d 922) (1939). The facts set forth in the indictment in this case sufficiently apprised appellant of the offense with which he was charged — operating a motor vehicle without proof of insurance — in accordance with OCGA § 17-7-54. In addition, contrary to appellant’s contention, there was sufficient evidence adduced at the trial for the trier of fact to find appellant guilty of operating a motor vehicle without proof of insurance beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

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


text:
    A90A0737.
    HARDEE’S FOOD SYSTEMS, INC. et al. v. EVANS.
    (397 SE2d 474)
   Cooper, Judge.

We granted this interlocutory appeal from the trial court’s denial of appellants’ motion for summary judgment. At issue is whether appellee’s action is barred by the exclusive remedy provision of the Workers’ Compensation Act.

The record shows that appellee was working at appellant Hardee’s under the supervision of appellant Avinger when Avinger hit appellee with his fist, knocking her into a wall and injuring her head and back. Appellee brought an action against Avinger for assault and battery, and against Hardee’s under theories of respondeat superior and negligent retention. Appellants contend that appellee’s injuries arose out of and during the course of her employment, therefore her exclusive remedy is under the Georgia Workers’ Compensation Act. Appellee contends that her action is not barred because even though her injuries occurred while she was in the course of her employment, Avinger attacked her for purely personal reasons.

“ ‘On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden. . . .’ [Cit.]” Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256 (358 SE2d 655) (1987). Although Avinger contends that he hit appellee because she stepped on his sore foot, for purposes of this appeal we are constrained to resolve factual inconsistencies against appellants, the movants for summary judgment, and therefore we are bound by appellee’s testimony that she was just standing behind the counter when, for no apparent reason, Avinger came up to her and hit her in the arm. “Therefore, for the remainder of our analysis we will assume that, as [appellee] contends, [Avinger] was the unprovoked aggressor, although the evidence is controverted as to [whether the incident began as a result of appellee stepping on Avinger’s toe].” Fountain v. Shoney’s Big Boy, 168 Ga. App. 489, 490 (309 SE2d 671) (1983). “In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, his injuries will nevertheless be considered compensable under the Act if it is shown that the animosity arose from reasons related to the employee’s performance of his work-related duties. [Cits.] Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of his work, then his injuries will not be considered compensable under the Act. [Cits.]” Lindsey v. Winn Dixie Stores, 186 Ga. App. 867 (1) (368 SE2d 813) (1988). Appellee submitted the affidavit of a co-employee who stated that he had heard Avinger say on several occasions that he did not like appellee; that Avinger talked about his dislike for appellee both at work and away from work; and that appellee did not give Avinger any reason not to like her. We conclude that the co-employee’s affidavit created a question of fact as to whether Avinger’s animosity for appellee stemmed from reasons unrelated to appellee’s performance of her duties at work; therefore, summary judgment was properly denied.

Decided September 19, 1990.

Jones, Cork & Miller, Wallace Miller III, for appellants.

Morris & Webster, F. Leonard Morris, Jr., Clayton A. Hall, for appellee.

Appellants also contend that summary judgment should have been granted under the “fellow-servant doctrine.” That doctrine, set forth in OCGA § 34-7-21, provides that “the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business.” “[T]he fellow-servant doctrine does not protect an employer from being charged with direct liability for its own negligence in hiring or retaining an employee with knowledge that the employee’s presence or the manner in which the employee performs his duties poses a danger to co-employees. [Cits.]” Lindsey v. Winn Dixie Stores, supra at Div. 2.

One co-employee stated in his affidavit that Avinger cursed the other employees and has hit other employees, including on one occasion the assistant manager; the other co-employee stated that there had been meetings about Avinger’s attitude and treatment of other employees; that Avinger would use bad language to other employees and had hit some of them in fits of anger. Although Avinger’s supervisor denied any knowledge about Avinger’s violent behavior toward other employees, there is some evidence that Avinger had behaved violently with other employees and that his supervisor knew, or should have known, about that behavior. Appellants were not entitled to summary judgment.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0742.
    MAPP v. THE STATE.
    (397 SE2d 476)
   Cooper, Judge.

The charges against appellant, aggravated assault and felony obstruction of an officer, arose from an altercation involving appellant and a correction officer at a county correctional institute. After a trial by a jury, appellant was acquitted of aggravated assault, and convicted of felony obstruction of an officer. During the altercation between appellant and the officer, appellant, a man of approximately six feet, four inches tall and approximately two hundred fifty pounds, picked up the officer and threw him onto a concrete floor. The officer’s head impacted the pavement, causing serious injury. Appellant appeared in the courtroom during the trial in prison garb and leg shackles. Appellant objected at trial to the use of the shackles and raises this as his sole enumeration of error on appeal.

“It is well established that ‘the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. (Cit.)’ ” Martinez v. State, 189 Ga. App. 69 (2) (375 SE2d 123) (1988). “At trial, where there is good and sufficient cause, the court has discretion in requiring a defendant to be . . . shackled for security reasons. [Cits.] Abuse of discretion is the test on appeal where restraining devices have been used in the trial court. [Cit.]” Dennis v. State, 170 Ga. App. 630 (3) (317 SE2d 874) (1984).

Art. I, Sec. I, Par. XI of the Georgia Constitution mandates that “[i]n criminal cases, the defendant shall have a public and speedy trial by an impartial jury.” “ ‘(A) defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial.’ [Cit.]” McKenzey v. State, 138 Ga. App. 88, 89 (225 SE2d 512) (1976). “ ‘[0]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial.’ [Cit.]” Holbrook v. Flynn, 475 U. S. 560, 567 (106 SC 1340, 89 LE2d 525) (1986). Appellant was entitled to have a trial free of restraint and “free of partiality created by the use of [shackles] except where special circumstances exist, which in the discretion of the trial judge, dictate added security precautions. [Cit.]” McKenzey, supra at 90.

While the trial court did note the imposing physical presence of the defendant, his status as a convicted felon and the fact that he was charged with a violent crime, there was no evidence that the defendant had an escape history or attempted escape history or that he had threatened or struggled with any of the guards, court officials, or jurors. See Martinez, supra at 72; McKenzey v. State, supra at 90. Likewise, there is nothing in the record to reveal that at any stage of the trial appellant became disruptive so as to require the use of shackles. The denial of appellant’s request to remove the shackles was based upon appellant’s previous conviction, his physical presence and the opinion of him held by law enforcement authorities, not upon any specific actions of appellant justifying restraint. Further, the court made no attempt to explain to the jury that the shackles on the defendant should not affect the jury’s consideration of the merits of the charges against him. See McKenzey, supra at 90. The trial court did not question the jury as to their continued impartiality once they had viewed the defendant in shackles, nor did the court take any measures to prevent the jurors from observing the defendant in the shackles, nor did the court reiterate and explain the presumption of innocence as it attached to appellant during the trial. See, e.g., Hicks v. State, 256 Ga. 715 (9) (352 SE2d 762) (1987); Dennis, supra at 632. Although defendant’s counsel, as part of his objection to the shackles, did not specifically request any curative action by the trial court, it is our opinion that the trial court had a duty to take such curative actions once the jury was exposed to the vision of a shackled defendant. Considering all the circumstances of this trial, we determine that the shackling of appellant, which continued throughout the trial, injected partiality into the trial, infringed upon appellant’s presumption of innocence and prevented the fundamental fairness which attends a trial by jury. Therefore, we respectfully determine that the trial court abused its discretion in allowing the defendant to be shackled without offering any curative action. We feel that defendant’s right to be tried in “an atmosphere free of partiality,” McKenzey, supra at 90, and the attendant presumption of innocence was infringed, consequently we reverse the conviction.

Decided September 19, 1990.

Mark G. Pitts, for appellant.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0782.
    MOORE v. THE STATE.
    (397 SE2d 477)
   Cooper, Judge.

Appellant, indicted for criminal attempt to commit burglary and possession of tools for the commission of a crime, appeals his conviction of criminal trespass and possession of tools for the commission of a crime.

The evidence at trial showed that at approximately 5:00 a.m., Samuel Brooks, awakened by his doorbell, went to the door and found no one there. After returning to bed he was awakened a second time by the doorbell, and again no one was at the door. After a few minutes, Brooks saw someone in his driveway who walked into the street and out of Brooks’ sight. Shortly thereafter, the person returned holding a bag and rang the doorbell again, but when Brooks failed to respond the person went back up the street. The person returned a fourth time, rang the doorbell and not getting any answer, proceeded to the back of the house. Brooks testified that he was standing on the inside of the door behind the draperies, within an arm’s length of the individual, and he observed the man attempting to pry the door open with a screwdriver-like utensil. Brooks called the police to report the incident and when he returned to the door, the man was gone. When the police arrived, they observed the man crossing a hedge into a neighbor’s yard. One officer ordered him to stop, whereupon the man dropped the bag and turned toward a wooded area. The bag contained a screwdriver, a pair of gloves and a flashlight. He was quickly apprehended, placed under arrest and was later identified by Brooks as the man who attempted to pry open his door.

1. Appellant enumerates as error the trial court’s denial of his motion for directed verdict based upon his contention that there was no evidence of certain essential elements of each offense. Appellant first argues that there was no evidence of prior notice to support a conviction for criminal trespass. While prior notice is an element of criminal trespass in subsection (b) (3) of OCGA § 16-7-21, the evidence was sufficient to support a conviction under subsection (b) (1), which forbids the entry upon the premises of another for an unlawful purpose. The jury expressly found appellant guilty of criminal trespass “with intent to commit a crime” and the evidence adduced was clearly consistent with the verdict.

Appellant also contends that there was no evidence that he possessed tools commonly used in the commission of a crime or that he possessed the tools with intent to commit a crime. Appellant’s reliance on Burnette v. State, 168 Ga. App. 578 (2b) (309 SE2d 875) (1983) is misplaced. In Burnette, the defendant had a hammer, a pair of pliers, screwdrivers, a hatchet and a chisel and although this court was “not prepared to hold that such tools [were] ‘commonly used in the commission of burglary,’ ” there was “no evidence . . . that appellant possessed such tools with the intent to use them in the commission of a crime.” Burnette, supra at 580. In the instant case, the officer testified that screwdrivers were popular for use in burglaries and that there were fresh scratches on the door frame. Hence, the trial court did not err in denying appellant’s motion for directed verdict.

Appellant enumerates as error the trial court’s denial of his motion for a directed verdict on the ground of abandonment. OCGA § 16-4-5. A review of the record shows that the trial court charged the jury as to the affirmative defense of abandonment of effort to commit a crime in relation to Count I of the indictment, attempt to commit burglary. The jury apparently resolved the issue of whether or not appellant voluntarily abandoned his effort to burglarize Brooks’ house by acquitting him of the charge. This affirmative defense is available only for criminal attempt and is not applicable to the lesser included offense of criminal trespass and possession of tools for the commission of a crime. These acts were completed before appellant abandoned his further efforts. See Willis v. State, 191 Ga. App. 251 (2) (381 SE2d 416) (1989). This enumeration is without merit.

2. Appellant maintains the trial court erred in failing to give four of his requested charges. We disagree.

(a) Appellant argues that the trial court failed to charge that “there is a presumption that no crime was committed, and the burden is upon the State to prove beyond a reasonable doubt that a crime was in fact committed.” “When examining the correctness of a specific charge, we must review the charges in their entirety, as the charges to the jury are to be taken as a whole and not out of context. [Cit.]” Mathis v. State, 192 Ga. App. 772 (4) (386 SE2d 532) (1989).

A review of the charges given reveals the jury was instructed that appellant entered the case with a presumption of innocence; that each essential element of the. offenses charged must be proven beyond a reasonable doubt; that the burden of proof rested on the State to prove appellant’s guilt beyond a reasonable doubt and that a person is not presumed to act with criminal intention. “This court repeatedly has held that the trial court’s failure to charge in the exact language requested is not error where the substance of the request is given in legally sufficient and correct terminology. [Cit.] In this instance the trial court has substantially charged on the matter of which appellant complains. . . . [I]t is unnecessary to give the precise language of a requested charge when the principles upon which the jury must make its decision have been clearly explained by the trial court. Such being the situation in this case, the assignment of error is without merit.” Mathis, supra at 775.

(b) Appellant contends the trial court erred in failing to charge on circumstantial evidence exclusively and on the “two theories” presented by the evidence. However, appellant’s contention erroneously discounts the direct evidence offered at trial — Brooks’ testimony that he witnessed appellant’s attempted break-in with a screwdriver and the fact that a screwdriver was in the bag he dropped when confronted by the police. The charges urged by appellant were not properly adjusted to the evidence and the trial court did not err in failing to give them. See Jackson v. State, 191 Ga. App. 362, 363 (381 SE2d 759) (1989). In addition, “a jury charge equivalent to the requested ‘two theories’ charge is required only when all the evidence is circumstantial. [Cit.]” Coleman v. State, 189 Ga. App. 366 (6) (375 SE2d 663) (1988).

Decided September 19, 1990.

Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Carl P. Greenberg, Assistant District Attorneys, for appellee.

(c) Appellant argues the trial court also erred in failing to include in its charge on reasonable doubt the principle that “evidence which merely raises a suspicion of guilt is not sufficient to convict.” Appellant contends the charge was necessary to assist the jury in understanding the meaning of reasonable doubt.

“While the requested charge may be a correct statement of law, its inclusion in the charge given the jury was not required because the substance of the requested charge was adequately covered in the charge given. [Cit.]” Williamson v. State, 186 Ga. App. 589 (3) (367 SE2d 863) (1988). Accordingly, the trial court did not err in omitting this charge.

3. Finally, appellant enumerates as error the trial court’s failure to grant a new trial on the general grounds. After a review of the entire record, we find that a rational trier of fact could reasonably have found, from the evidence adduced at trial, proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0812.
    SPIVEY v. THE STATE.
    (397 SE2d 588)
   Cooper, Judge.

Appellant was convicted by a jury of child molestation. In addition to the general grounds, appellant enumerates as error three evidentiary rulings made by the trial court.

The evidence viewed in a light to support the jury’s verdict reveals that the four-year-old victim’s father took his wife and the victim with him to appellant’s trailer to place a deer stand in the woods behind the trailer; that he left the victim with appellant in the trailer for approximately forty-five minutes; that on the way home the victim told her father that appellant let her play with his “butt-butt,” which is the victim’s term for all parts of the body between the waist and the knees; and that upon returning home, the victim indicated, by pointing to the area where she touched appellant and motioning with her hand in an up and down manner, that appellant let the victim “masturbate” him. The victim’s father took his wife and the victim to the sheriffs department to report the incident, and later that same day the victim was interviewed by a social services specialist with the Department of Family & Children’s Services. Approximately five days later, appellant, at the request of the investigating officer, went to the sheriffs department to discuss the accusations. After being advised of his rights, appellant signed a waiver of rights form. The officer explained to appellant the allegations made by the victim. After first denying that anything happened, appellant stated to the officer: “You’ve got it Captain.” “I need help.” “It happened basically the way she said. I need help.” Appellant then provided a statement in his own handwriting describing the molestation.

1. Appellant contends the State failed to prove his guilt beyond a reasonable doubt. The evidence was sufficient to enable a rational trier of fact to find appellant guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). .

2. Appellant next contends that the trial court erred in admitting the out-of-court declarations made by the victim to her father and the social worker. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. The statements made by the victim to her father appear to have been made within a few hours after the molestation occurred, and we conclude they were admissible as part of the res gestae. Kilgore v. State, 177 Ga. App. 656 (2) (340 SE2d 640) (1986). The statements made to the social worker were also made the day of the incident, and while they may lack the spontaneity of the statements made to the father, “ ‘(a) trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered . . . will not be disturbed on appeal unless that determination is clearly erroneous.’ [Cits,]” In re J. B., 183 Ga. App. 229 (4) (358 SE2d 620) (1987). The social worker’s testimony was consistent with the testimony of the victim’s father and the confession of appellant; therefore, “ ‘the evidence was cumulative and its admission not prejudicial to the defendant.’ [Cit.]” Hyde v. State, 189 Ga. App. 727, 730 (1) (377 SE2d 187) (1988).

3. In his third enumeration of error, appellant contends that the trial court erred in not admitting evidence of the victim’s habit of following adults into the bathroom and two allegedly false accusations made by the victim against persons regarding matters unrelated to the charges against appellant. Prior to trial appellant filed a motion to obtain a ruling as to the admissibility of evidence that (1) the victim told her father that she saw her mother in bed with his brother, and (2) that the victim falsely accused her mother of flushing her goldfish down the toilet. In Smith v. State, 259 Ga. 136 (1) (377 SE2d 158) (1989) the Supreme Court held that it was harmful error to not admit testimony of previous false allegations made by the victim. Although Smith involved a victim’s allegedly false accusations of sexual misconduct by other men, we find the reasoning of that case to be applicable to the accusations made by the victim in this case. While we cannot say that the victim’s allegedly false accusations show a propensity of the victim to make false statements regarding sexual misconduct, the accusations, if false, would tend to show the propensity of the victim to make false allegations, against other persons. Therefore, before ruling on the admissibility of the evidence, the trial court should have made a “ ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity [existed].’ [Cit.]” Smith, supra at 137. However, since the properly admitted confession of appellant (see Division 4) clearly showed his guilt, the error in not admitting the evidence was harmless error. See Mahone v. State, 237 Ga. 120 (3) (227 SE2d 16) (1976); Fitzgerald v. State, 166 Ga. App. 307 (3) (304 SE2d 114) (1983).

We find no error with the trial court’s exclusion of evidence showing the victim had a habit of following adults into the bathroom, since that evidence clearly had no relevance to the issue of whether appellant committed the crime charged.

4. Appellant also contends that the trial court erred in admitting his confession because he was intoxicated at the time that he waived his right to counsel. At the Jackson-Denno hearing, appellant testified that he had been drinking beer when the officer asked him to come to the sheriff’s department and that he was intoxicated when he wrote his confession. An officer with the sheriff’s department who was present when appellant signed the waiver of rights testified that there was no evidence that appellant was intoxicated and that he appeared to sign the waiver freely and voluntarily. The investigating officer testified that appellant told him he drank one beer prior to coming to the station, but appellant did not appear to be intoxicated in any way. “ ‘Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.’ [Cit.]” Johnson v. State, 191 Ga. App. 810 (1) (383 SE2d 146) (1989): We find no error with the admission of appellant’s custodial statements.

Decided September 19, 1990.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0856.
    SEIDEL v. THE STATE.
    (397 SE2d 480)
   Cooper, Judge.

Appellant was indicted on three counts — rape, sodomy and child molestation. The rape and sodomy counts involved one victim and the child molestation count involved a second victim. Appellant was acquitted of the rape charge, and was convicted by a jury of sodomy and child molestation. Appellant’s motion for an out-of-time appeal was granted, and this appeal followed.

As to the first two counts, the victim at trial testified that she was a friend of appellant’s daughter, and in July 1986, when she was 14 years old, she spent the night with her friend at appellant’s home. Appellant offered the girls beer, and after drinking approximately four beers, the victim fell asleep on the couch in the family room. The victim was awakened when appellant put his hands between her legs and rubbed her vagina; being afraid, she pretended to sleep. The victim then testified that appellant put his fingers in her vagina and then picked her up and took her upstairs to his daughter’s bedroom, where he removed her clothing and locked the door. She stated that appellant then put his mouth on her vagina and had intercourse with her. She testified that she was afraid and continued to pretend to sleep. The next day, the victim accompanied appellant and his daughter to Stone Mountain. That evening, because her parents were away from home, she spent another night with appellant and his family. Several days later, the victim told a friend and the friend’s mother what had happened and was then encouraged to tell her own parents. The friend’s testimony at trial corroborated the victim’s statement, whereas appellant’s son and daughter, who were both present the night in question, testified that the son followed appellant upstairs, and the son testified that he saw appellant put the victim in bed and leave. Appellant’s testimony concurred with his children’s statements. A gynecologist testified that an examination of the victim revealed a ruptured, but currently healing, hymenal ring. A forensic chemist testified that he found blood on the shorts that the victim said she was wearing but found no seminal fluid on any of the clothing he was provided.

As to the third count, the second victim testified that during April and May 1987, when she was thirteen years old, during the time that she and her family were living with appellant and his family, appellant, on several occasions, approached her when she was asleep and put his finger in her vagina. The victim testified that she delayed telling her mother until after several of the incidents because she wanted to wait until her mother had found other living quarters, and she would not have to return to appellant’s house.

1. Appellant first enumerates the sufficiency of the evidence. “Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury.” Lucas v. State, 192 Ga. App. 231 (1) (384 SE2d 438) (1989). Further, on appeal we are required to view the evidence in the light most favorable to the verdict. Id. After a review of the record and the evidence adduced at trial, we conclude that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next asserts that the court erred in failing to give appellant’s request to charge on the presumption of innocence. The trial transcript reveals that the court did in fact instruct the jury that every person is presumed innocent until proven guilty. The record further reveals that when the trial court completed its charge and asked for any objections, appellant failed to indicate any objection or dissatisfaction with the charge. “ ‘Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the right to make such objections on motion for new trial or on appeal or waive any such objections.’ [Cits.]” Henderson v. State, 182 Ga. App. 513 (3) (356 SE2d 241) (1987). Due to appellant’s failure to raise his objection to the charge to the trial court when asked, such objection was waived.

3. Appellant contends, in his last enumeration of error, that the trial court erred in failing to grant appellant’s motion to sever counts one and two, involving one victim, from count three, which involved a second victim. Appellant argues that the two incidents occurred at different times, were not part of the same transaction and that appellant was not allowed a fair determination of guilt because the jury was exposed to the facts surrounding both incidents. When separate offenses have been joined “because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind,” or “ ‘[w]here the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice.’ (Cits.)” Wilson v. State, 188 Ga. App. 779 (1) (374 SE2d 325) (1988). Severance in these circumstances lies within the discretion of the trial court. Id. All the charges against appellant indicate a pattern of fondling adolescent girls while they were sleeping in appellant’s home. The pattern of acts constituted “parts of a single scheme or plan to satisfy the sexual desires of the [appellant].” Barker v. State, 191 Ga. App. 451 (6) (382 SE2d 115) (1989). The trial court did not abuse its discretion in denying the motion to sever.

Decided September 19, 1990.

Walter J. Clarke, for appellant.

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

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1271.
    GREEN v. THE STATE.
    (397 SE2d 590)
   Beasley, Judge.

Green was convicted of two counts of aggravated assault, OCGA § 16-5-21 (a) (2), and possession of a firearm by a convicted felon, OCGA § 16-11-131.

1. Appellant contends that the trial court erred in failing to give his request to charge on insanity because this was his sole defense and there was evidence justifying the charge.

Contrary to appellant’s contention there was no evidence that he was less than legally sane at the time of commission of the crimes. “Legal ‘insanity’ relates only to the ability of a defendant to distinguish between right and wrong, and whether he had a delusional compulsion which overmastered his will. [Cits.]” Echols v. State, 149 Ga. App. 620, 621 (2) (255 SE2d 92) (1979). OCGA §§ 16-3-2; 16-3-3.

Appellant’s own testimony about the incident and the circumstances leading up to it eliminated an insanity defense: After only four or five days of marriage, appellant and his wife stopped living together and she began staying at her parents’ house. He suspected her of being on drugs and of running around on him. He visited her often at her parents’ home. He would sometimes spend the whole night clandestinely observing the house. He filed for divorce and then stopped the proceeding when his wife said she would straighten out her life. When she did not, appellant again filed for divorce.

Appellant saw a man getting out of his wife’s car, and it made him a “little upset” and “confused.” He went to meet her as she was picking up her son from school to talk to her about seeing her with the other man. Appellant did not “feel good” when his wife failed to stop the car and talk with him. He claimed that his wife accidentally “bumped” his car with her rental car. After this, he pulled his car up beside hers, pulled out a .32 caliber revolver and fired twice at his wife, wounding her with one of the shots. He maintained that he was shooting at her merely to scare her and get her to stop her car. He said he was not “thinking right” and was “confused and upset.” However, he admitted that at the time he knew he was shooting at his wife, knew that it was wrong, and knew that by shooting in the car there was a good chance he might hit somebody, including accidentally hitting his wife’s young son.

The State introduced evidence that after the shooting, appellant went to the local sheriff’s department and told a deputy that he had been having problems with his wife running around on him and that he had shot at her.

Appellant urges that his behavior leading up to the shooting, i.e., his belief that his wife was seeing other men and on drugs, his surveillance of his wife, and his believing that he heard the sound of beepers and guns being cocked when he visited his wife at his in-laws was evidence of his insanity at the time of the shooting. Even if the behavior could have been construed as more than jealousy and suspiciousness so as to amount to mental abnormality, such abnormality “is not a defense to a crime unless it amounts to insanity. [Cits.]” Dennis v. State, 170 Ga. App. 630, 631 (2) (317 SE2d 874) (1984). Even a delusion of a spouse’s infidelity is not enough to prove insanity, where the defendant knew right from wrong. See Salter v. State, 257 Ga. 88, 89 (1) (356 SE2d 196) (1987).

“Notwithstanding defendant’s contention that [insanity] constituted his sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence. See Sapp v. State, 155 Ga. App. 485, 486 (271 SE2d 19) [1980]; Gunter v. State, 155 Ga. App. 176 (3) (270 SE2d 224) [1980].” Young v. State, 163 Ga. App. 507, 508 (3) (295 SE2d 175) (1982).

2. Appellant contends that the court erred in failing to appoint an independent psychiatrist or psychologist prior to trial.

Two weeks before trial, defendant filed a “Defendant’s Plea of Not Guilty by Reason of Insanity and Request for Psychiatry Exam” asserting that at the time of the shooting, he had lost all ability and intellectual power to distinguish between right and wrong. Before the trial started, the court conducted a hearing on the request and overruled it after concluding that there was nothing unusual about the nature of the offenses charged, that defendant’s supportive evidence showed that he was a jealous husband, that defendant presented no evidence of previous mental problems or of any mental problems at the time of trial, and that there was no evidence that insanity would be a defense or even a significant factor. In addition, the court found other cause to overrule the request in defendant’s failure to comply with the Uniform Superior Court Rules regarding timely notice of his intent to raise an insanity defense and that there had been no actual plea of not guilty by reason of insanity.

Decided September 19, 1990.

Don E. Snow, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Pretermitting questions about the lack of an actual plea and compliance with the uniform rules, defendant’s evidence in support of his request for psychiatric evaluation did not demonstrate that his sanity at the time of the offenses was to be a significant factor at trial. See Scott v. State, 177 Ga. App. 474 (1) (339 SE2d 718) (1985). It was substantially the same as he later introduced at trial, i.e., merely his observations and suspicions about his wife’s behavior. “[A]n accused’s request for a psychiatric evaluation [when there is a general plea of not guilty by reason of insanity] lies within the sound discretion of the trial court. The trial court’s ruling will not be interfered with absent a showing of abuse of that discretion which defendant has failed to do in this case.” Duck v. State, 250 Ga. 592, 596 (2) (b) (300 SE2d 121) (1983).

Judgments affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1406.
    HERNANDEZ v. LIBERTY MUTUAL INSURANCE COMPANY.
    (397 SE2d 482)
   Beasley, Judge.

Mr. Hernandez was in the process of climbing down off a car carrier/tractor-trailer when he fell and was injured. He was employed to haul automobiles, and he had just finished securing the last of the four top-level cars and was on the cradle before he went down to get the four cars for the bottom level. He became unconscious and does not know why he fell.

Liberty Mutual Insurance Company provided no-fault insurance on the car carrier, but it denied coverage in this instance. The trial court agreed that, based on the undisputed facts, the insurer was entitled to summary judgment and the injured employee was not.

No-fault benefits are due for accidental bodily injury sustained while occupying a covered vehicle. OCGA § 33-34-7 (a). “Accidental bodily injury” is that which “[arises] out of the operation, maintenance or use of a motor vehicle. . . .” OCGA § 33-34-2 (1). Expressly excluded from the activity contemplated by the words “operation, maintenance or use” is “[l]oading or unloading a motor vehicle by any person acting within the course of his employment in any business.” OCGA § 33-34-2 (9) (B).

Although it may be said that Mr. Hernandez was “occupying” the vehicle, see Turner Transp. Co. v. Warner, 168 Ga. App. 358 (308 SE2d 845) (1983), the activity in which he was engaged was the loading of it with cars. The fact that he had completed the securing of four of the cars and in that sense had fully loaded them does not alter the fact that the loading process included descending from the tractor/trailer.

The statutory exclusion cannot be construed as narrowly as plaintiff urges. “[T]he term ‘loading’ as employed in the statute . . . encompasses every act incident to or necessary to the cargo’s being placed in the transport vehicle in such manner as to make it ready for transportation.” Crosby v. Ga. Cas. &c. Co., 173 Ga. App. 644, 646 (327 SE2d 505) (1985). “This court has adopted a liberal definition of the word ‘use’ ” in motor vehicle insurance law. Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122 (329 SE2d 204) (1985), in which case a number of examples are given. See also Rustin v. State Farm &c. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985). The clause which would negate the exclusion, i.e., “unless the conduct occurs while occupying it,” has been deleted by the legislature. Mr. Hernandez’ act of beginning to descend from the vehicle was “a part of the loading process” and not “a separate operation.” Crosby, supra at 645. The additional fact that plaintiff was in the middle of the loading process, having four more cars to put on the tractor/trailer, is another hurdle which plaintiff has not successfully overcome so as to escape the exclusion.

Turner, supra, does not rescue plaintiff because the activity of the injured party in that case was not subject to the commercial “loading or unloading” exclusion.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided September 20, 1990.

Ralph E. Hughes, for appellant.

Alembik, Fine & Callner, Lisa H. Cassilly, for appellee.


author: Deen, Presiding Judge.

text:
    A90A1577.
    In the Interest of J. D. W., a child.
    (397 SE2d 483)
   Deen, Presiding Judge.

Appellant, thirteen years old at the time of the. offenses alleged, was found to have committed rape, aggravated sodomy, and statutory rape upon a thirteen-year-old girl who was babysitting with his infant brother. The victim, out of embarrassment, did not report the incident until some five weeks after its occurrence. She then told friends whom she had sworn to secrecy and subsequently told a teacher and a school counselor, who reported the matter to police. She was examined by an experienced gynecologist, who made physical findings consistent with nonconsensual intercourse.

At trial appellant testified that some of the alleged sexual activities had occurred but that they were consensual. The court found the evidence sufficient to sustain the criminal allegations, and a pre-disposition investigation was ordered. Appellant was subsequently committed to the Department of Human Resources, Division of Youth Services, with the recommendation that he be placed in the Community Treatment Center Program. On appeal J. D. W. enumerates as error the trial court’s refusal to consider the State’s alleged failure to present material evidence. Held:

Review of the trial transcript reveals that the State objected when, on closing argument, defense counsel alluded to “the things that are left unsaid” and speculated as to what the school counselor and the female police officer who took the victim’s statement might have testified — the implication being that the State had not called these persons for fear their testimony would have been exculpatory. The trial court sustained the objection and admonished defense counsel that such speculation was inappropriate.

Further scrutiny of the transcript reveals that the counselor, one of the persons named in the challenged portion of defendants’ argument, had in fact testified and been cross-examined during the trial regarding appellant’s academic status and had been available for further questioning had such been desired. According to the record there was nothing to prevent defense counsel’s having subpoenaed either the counselor or the female police officer, or any other witnesses whom he might deem to possess exculpatory information. OCGA § 17-7-191.

Decided September 20, 1990.

Ronnie K. Batchelor, for appellant.

Phyllis Miller, Solicitor, for appellee.

The record clearly indicates both that sufficient competent evidence was set forth to authorize a finding that appellant was guilty as charged, and that defense counsel was in no way prevented from presenting evidence in attempted rebuttal of that adduced by the State. Appellant’s enumeration of error is without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0964.
    PONDER v. THE STATE.
    (397 SE2d 596)
   Sognier, Judge.

In Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989), we remanded Frankie Ponder’s appeal from his conviction on two counts of violating the Georgia Controlled Substances Act with direction that the trial court conduct a post trial, in camera proceeding, as explained in Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988), in regard to Ponder’s motion to disclose the identity of the confidential informant used by the police. Upon remand, the trial court conducted a Moore hearing, at which the informant’s identity was disclosed to the court, the informant was placed under oath and questioned, and the sworn testimony was reported and transcribed. Thereafter the trial court, in its order, found that the informant’s testimony was substantially the same as the police officer who testified at appellant’s trial and concluded that any error in the trial court’s earlier failure to require disclosure of the identity of the confidential informant was harmless. Ponder brings this appeal from the trial court’s ruling that a new trial was not required. See Moore, supra at 393-394.

Moore established that the proceedings for determining whether a confidential informant’s identity should be disclosed are to be conducted in the trial court’s chambers, and set forth elaborate measures to be taken to ensure that the identity of the informant would not be revealed unless disclosure was found to be necessary by the trial court. The trial court in the case sub judice properly followed these measures. Appellant argues, however, that because the State was represented at the in camera examination of the informant and was allowed to question the informant, then either he or his counsel was likewise entitled to be present during the proceeding in order to cross-examine the informant, and that the exclusion of appellant and/or his counsel from the Moore hearing violated appellant’s right to confront a witness against him.

Appellant mistakes the purpose of the in camera examination of the confidential informant required by Moore. Under Moore the testimony of the individual in issue, an informant-witness, has already been classified as “material to the appellant on the issue of his guilt or innocence.” Id. at 391. In a Moore hearing the informant is examined not to provide additional testimony as to appellant’s guilt or innocence, but rather to determine whether the failure to disclose the informant’s identity (thereby resulting in the probable exclusion of the informant’s testimony at trial) was prejudicial or harmless under the standard set forth in LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976). Moore, supra at 392. Given that the issue for determination in the Moore hearing did not place the State in a position adverse to appellant in regard to his guilt or innocence on the charged crime, but rather centered on establishing an evidentiary basis for the trial court to determine the possible impact on appellant’s trial of the exclusion of the informant’s testimony, we do not agree with appellant that any Sixth Amendment confrontation right was infringed at the Moore hearing either by the presence of or by the questions posed to the informant by the assistant district attorney. Accordingly, contrary to appellant’s contention, neither he nor his counsel was entitled to be present at the in camera examination of the informant under Coy v. Iowa, 487 U. S. 1012 (108 SC 2798, 101 LE2d 857) (1988). We further note that the Georgia Supreme Court has held that a trial judge’s in camera inspection of challenged evidence meets the requirements of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), see Fleming v. State, 236 Ga. 434, 438 (224 SE2d 15) (1976), and that the federal courts do not recognize any right in a defendant in a Brady context to peruse challenged evidence personally. See Payne v. State, 233 Ga. 294, 297 (I) (210 SE2d 775) (1974).

We find no merit in appellant’s alternate argument that language in Moore supports a contrary result. Appellant relies upon the statement that “[b]oth the defendant and the State shall be entitled to present any relevant evidence or to present argument bearing on the sole issue of whether the error in failing to reveal the informant’s identity was prejudicial or harmless. . . . Thereafter, the trial judge shall resolve this issue and enter an appropriate judgment.” Id. at 393. However, a reading of this language in its proper context reveals that it applies only to situations where the State cannot produce the informant for the in camera proceeding, and a post trial hearing is conducted in the presence of the parties to determine the circumstances surrounding the informant’s nonavailability. Id. at 392-393. See also Castillo v. State, 166 Ga. App. 817, 823 (4) (305 SE2d 629) (1983). Such a situation was not presented in the case sub judice.

Decided September 21, 1990.

Andrews & Seery, S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Further, appellant’s argument overlooks the discussion as to why the Moore court found use of an in camera proceeding under the particular circumstances arising therein to be “invaluable.” The use of an in camera proceeding “can insure that both the identity of an informant can continue to be lawfully protected and that appellant’s fair trial rights will be adequately safeguarded, even after an appellant has met the threshold requirements for disclosure of Roviaro [v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957)] and Thornton [v. State, 238 Ga. 160 (231 SE2d 729) (1977)].” (Emphasis deleted.) Moore, supra at 393. It is thus apparent that to construe the language in Moore upon which appellant relies so as to find that appellant or his counsel was entitled to be present at the questioning of the informant in the trial judge’s chambers would necessarily result in the informant’s identity being disclosed to the defense. As that interpretation would defeat the elaborate measures set forth in Moore, which the trial court is required to take, to protect the informant’s identity, we are not persuaded to follow it.

Therefore, since the Moore hearing was properly conducted, and the record supports the trial court’s finding that the informant’s testimony was substantially the same as the police officer who testified at appellant’s trial, so that the failure to disclose the informant’s identity was harmless error, see id. at 393, the trial court properly ruled that the informant’s identity was not required to be disclosed to the defense and that a new trial was not required.

Judgment affirmed.

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


text:
    A90A1319.
    WARREN v. THE STATE.
    (397 SE2d 484)
   Carley, Chief Judge.

Appellant and a co-indictee were jointly tried before a jury for the offense of burglary. The jury found appellant guilty of burglary and the co-indictee guilty of theft by taking. Appellant then secured new counsel who filed a timely motion for new trial. Appellant now appeals from the denial of his motion for new trial and from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant’s trial counsel did not move to sever appellant’s trial from that of the co-indictee. In his motion for new trial, appellant cited this as demonstrating that he had been denied the effective assistance of trial counsel. The trial court’s failure to grant the motion for new trial on this ground is enumerated as error.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). The trial court’s finding in the instant case is not clearly erroneous. The decision whether to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. Louis v. State, 185 Ga. App. 472, 474 (3) (364 SE2d 607) (1988).

2. After appellant’s arrest but before trial, counsel for the State apparently received a letter wherein appellant claimed to be a “first offender.” At trial, appellant took the stand in his own defense. On his direct examination, he did not open the character door but, on his subsequent cross-examination, appellant did volunteer that he had two previous convictions for driving under the influence. However, appellant did not imply that this constituted the entirety of his previous criminal record and the State did not thereafter limit its subsequent cross-examination of appellant to the topic of his two previous convictions for driving under the influence. Instead, over objection, the State was allowed to shift the entire focus of appellant’s cross-examination to the pretrial letter that he had sent to counsel for the State. Appellant was required to explain that he believed that his claim of “first offender” status in that letter had been true because he had never previously been charged with commission of a burglary. Despite appellant’s explanation that his letter was intended to be a claim of “first offender” status only as to burglarly, the State still insisted on further pursuit of the topic of appellant’s previous convictions and appellant was asked if he was a first offender for “[ajnything else?” Appellant responded: “Just the DUI[s].” The State, over objection, was then allowed to introduce for impeachment purposes a certified copy of appellant’s prior conviction for theft by taking. On this record, appellant urges that the State was improperly allowed to place his character into issue.

When appellant volunteered on cross-examination that he had two previous convictions for driving under the influence, the State could have pursued the limited topic of those two prior convictions. Jones v. State, 257 Ga. 753, 759 (1a) (363 SE2d 529) (1988); McDaniel v. State, 248 Ga. 494, 495 (3) (283 SE2d 862) (1981). However, the State did not do so. Had appellant implied that those two offenses comprised the entirety of his prior criminal record, the State could have proved that that was false. Jones v. State, supra at 759 (1b). However, appellant’s testimony did not give this impression and the State was, therefore, not entitled to prove his prior conviction for theft by taking under this theory of impeachment. What the State was allowed to do after appellant admitted having two prior convictions for driving under the influence was to shift the focus to appellant’s pretrial claim of “first offender” status and, based upon cross-examination as to that claim, to introduce his prior theft by taking conviction for impeachment purposes. Accordingly, the issue presented for resolution is whether appellant’s voluntary admission of his two prior convictions for driving under the influence authorized the State to use appellant’s pretrial claim of “first offender” status as a means to secure the introduction of his theft by taking conviction for impeachment purposes.

OCGA § 24-9-83 provides, in relevant part, that “[a] witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” (Emphasis supplied.) However, appellant’s pretrial letter was not itself admissible as an impeaching prior inconsistent statement. Appellant’s voluntary admission at trial that he had two prior convictions for driving under the influence was in no way contradictory of his prior claim of “first offender” status. Driving under the influence is a misdemeanor, not felony. OCGA § 42-8-60. Moreover, appellant’s status as a “first offender” was in no way relevant to any jury issue in the case but would be relevant only to the sentence imposed by the trial court should the jury find appellant guilty. Accordingly, by permitting the State to shift the focus of appellant’s cross-examination to his pretrial letter, the trial court erroneously allowed the State, over appellant’s objection, to pursue a topic which had no relevancy whatsoever for impeachment or any other proper purpose. See generally Duke v. State, 256 Ga. 671, 672 (1) (352 SE2d 561) (1987).

It follows that the State was, therefore, erroneously allowed to engage in a “line of cross-examination [which] was obviously an endeavor to compel [appellant] to respond to questions which placed his character in issue and which insured an excuse for the State’s introduction of evidence of [appellant’s] prior criminal record.” Arnold v. State, 193 Ga. App. 206, 207-208 (2) (387 SE2d 417) (1989). Appellant had two choices when he was asked whether he was a first offender for “[a]nything else?” He could have admitted his prior conviction for theft by taking and impeached himself or he could have lied and then have the State impeach him. Although appellant chose to lie, he never would have been put to that choice had the trial court not erred in allowing the State to interject the irrelevant topic of appellant’s pretrial claim of “first offender” status. “We disapprove of [the State’s] endeavor and adhere to the rule that the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue. To say otherwise, would render meaningless one of the primary objectives of OCGA § 24-9-20 (b), to preserve the presumption of a defendant’s innocence. [Cit.j Consequently, since [appellant] did not voluntarily elect to place his character in issue, the trial court erred in allowing the State to attempt to impeach [appellant] and place his character in issue through the introduction of evidence of [his] prior criminal record. [Cits.]” Arnold v. State, supra at 208 (2). Appellant is entitled to a new trial wherein his prior conviction for theft by taking will not be admitted under the erroneous guise that it is permissible impeaching evidence.

Decided September 21, 1990.

Robert G. Jones III, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

3. In the absence of testimony as to the specifics of any hearsay conversation, the arresting officers were otherwise correctly allowed to explain that their arrest of appellant had been based upon a tip received from a confidential informant. Compare Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342) (1989).

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1356.
    MULLEN v. THE STATE.
    (397 SE2d 487)
   Sognier, Judge.

Duane Mullen was convicted of criminal damage to property in the first degree, and he appeals from the denial of his motion for new trial.

1. We first address appellant’s enumeration on the general grounds. Construed to support the verdict, the evidence adduced at trial established that on the night of May 5, 1989, Leroy Scuffman, a seventy-seven year old Buford resident, was alone at the home he shared with his son, Arnold, when he observed a white four door Toyota being driven slowly up the circular drive of his house at about 8:30 p.m. Scuffman testified that the same car returned an hour or two later and the male driver fired two pistol shots into the house. The investigating officers found two spent bullets fired from a 9 mm handgun in the house. At trial, Scuffman identified appellant, whom he had met on a prior occasion, as the person who had fired the shots, although at the time of the shooting he was unable to identify the perpetrator.

Arnold Scuffman testified that he had met appellant and Juanita Mullen, appellant’s wife at the time, when they patronized the car lot where he was employed. He testified that he and Juanita Mullen became friends after she and appellant separated in March of 1989. Both he and Juanita Mullen testified that on two occasions, once in April and once several weeks after the shooting, appellant had threatened and assaulted Arnold, admonishing him to stay away from Juanita. She testified that at around 6:00 p.m. on the night of May 12, she met appellant at his request, and that after they began arguing about her relationship with Arnold, appellant assaulted her and threatened her with a knife and a handgun. She also recalled seeing appellant’s car parked at his house between 7:30 and 8:00 p.m. that night. Arnold testified that he picked up Juanita at the hospital around 10:00 p.m., and then returned home to learn of the shooting.

A search of the house appellant shared with his parents yielded two types of 9 mm handguns which appellant’s father testified belonged to him, and an instruction manual for a third type was found in appellant’s car. The State’s ballistics expert testified that the bullets found in the Scuffman residence could have been fired from one of these three types of handguns, but his tests established they were not fired from either gun found at appellant’s home.

During his testimony, appellant admitted assaulting Arnold Scuffman, but denied striking his former wife except in self defense. Both he and his brother, David, testified that appellant arrived at David’s house at 7:00 p.m. on May 12 and stayed there until the next morning. Appellant also acknowledged that he drove a white four door Toyota.

We find this evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize appellant’s conviction. See Staton v. State, 165 Ga. App. 572 (3) (302 SE2d 126) (1983). Although, as appellant notes, the evidence against him was largely circumstantial, “[circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of [appellant’s] guilt. [Cits.]” Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987). We are satisfied that the evidence adduced in this case excluded every reasonable hypothesis except that of the guilt of appellant. See id.

2. Appellant challenges the trial court’s decision to allow Investigator K. G. Vincent, the chief investigating officer, to sit at counsel table with the prosecutor after the rule of sequestration had been invoked although he was the last witness to testify for the State. He maintains this procedure violated OCGA § 24-9-61 and unduly prejudiced his case.

The record reveals that when appellant’s counsel objected to Vincent’s presence, the prosecutor stated he needed Vincent’s assistance during the trial and that to compel him to testify first would require the State to present its case out of sequence. This court previously has held that in similar circumstances, the exception of a witness from the rule of sequestration does not constitute an abuse of the trial court’s discretion, e.g., Mathews v. State, 183 Ga. App. 224 (1) (358 SE2d 639) (1987); Fowler v. State, 179 Ga. App. 492, 493 (2) (347 SE2d 322) (1986), particularly where, as here, the unsequestered witness testified about post-arrest events. Mathews, supra.

3. In two enumerations appellant contends the trial court erred by allowing into evidence testimony regarding his altercations with Arnold Scuffman and Juanita Mullen, asserting that the evidence had no probative value and impermissibly placed his character into evidence. We do not agree, as we find the circumstances in the case at bar to be analogous to those in Faircloth v. State, 253 Ga. 67-68 (1) (316 SE2d 457) (1984). The appellant in Faircloth was charged with the murder of his estranged wife and the aggravated assault of the man his wife was seeing, and the Supreme Court held evidence of previous difficulties between the appellant and the male victim shortly before the crime occurred was admissible to show state of mind and motive. Here, appellant was charged with criminal damage to a house in which Arnold Scuffman, the man who had established a friendship with appellant’s estranged wife, was living, and thus evidence of appellant’s prior attacks on Arnold and Juanita was similarly admissible.

4. Appellant’s remaining enumerations of error concern statements made by the trial judge during the charge to the jury, which appellant asserts constituted expressions of opinion by the judge in violation of OCGA § 17-8-57 (formerly OCGA § 17-8-55).

(a) The trial court instructed the jury that “you are only concerned with the guilt or innocence of the defendant, and you are not to concern yourselves with anything concerning punishment.” We find no merit in appellant’s contention that this charge constituted an expression of opinion by the court as to appellant’s guilt. See Ross v. State, 173 Ga. App. 313, 314 (4) (325 SE2d 919) (1985); compare Gaither v. State, 234 Ga. 465, 466 (2) (216 SE2d 324) (1975).

(b) The judge also informed the jurors that on the back of the indictment was “a blank: ‘We, the jury, find the defendant [blank].’ Whatever your verdict is, write it in there. . . .” We disagree with appellant that the reference to one blank in any way suggested to the jury that the only possible finding was a one-word verdict of “guilty,” especially given that the judge instructed them to write in their verdict, “whatever [it] is.”

Judgment affirmed.

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

Decided September 21, 1990.

Ronnie K. Batchelor, for appellant.

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