text:
    A89A1140.
    INTERNATIONAL BUSINESS CONSULTING, LTD. v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (386 SE2d 400)
   Sognier, Judge.

First Union National Bank of Georgia (Bank) brought suit against International Business Consulting, Ltd. (IBC) seeking recovery of an overdraft in the account IBC maintained at the Bank. IBC answered denying it was indebted to the Bank in any amount. The trial court granted summary judgment in favor of the Bank and IBC appeals.

In support of its motion for summary judgment, appellee presented the affidavit of its area manager, Joel C. Taylor, Jr., who averred that as of June 30, 1988, appellant’s account reflected an overdraft balance ' of $47,258.16, which was composed of the chargeback of a dishonored check in the amount of $44,047.08, a check order fee of $25.85, and the remainder consisting of service charges posted to the account. Attached to the affidavit were copies of appellant’s monthly account statements from November 1987 to June 1988, which were averred to be true and correct copies of the regular business records maintained by appellee under Taylor’s supervision and control. In response to the affidavit and exhibits, appellant sub mitted the affidavit of its corporate officer, John England, wh averred that he “is not aware of any justification for services charge imposed by [appellee] in an amount in excess of $3,200.00.”

OCGA § 9-11-56 (e) provides in part that “[w]hen a motion fo summary judgment is made and supported as provided in this Cod section, an adverse party may not rest upon the mere allegations o denials of his pleading, but his response, by affidavits or as otherwis provided . . ., must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis supplied.) “ ‘It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present his case in full. [Cits.]’ ” Bible Farm Svc. v. House Hasson &c. Co., 157 Ga. App. 358-359 (277 SE2d 341) (1981).

Decided September 6, 1989.

Appellee presented the sworn statement of its area manager setting forth the amount it claimed was due which, together with attached statements of account that were admissible as business records pursuant to OCGA § 24-3-14, pierced the general denial in appellant’s answer. See Ambrose v. E. F. Hutton & Co., 146 Ga. App. 403, 404 (2) (246 SE2d 423) (1978). “[W]here the [business records] conform to the provisions of the Code section, they themselves stand as a witness of the correctness of the account and make a prima facie case which shifts the burden of proof to the defendant debtor to show the items contained in the books, or some of them, are not correct.” Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38, 42 (1) (55 SE2d 244) (1949). Since OCGA § 24-3-14 (b) specifically provides that a proper business record is “admissible in evidence in proof of the act, transaction, occurrence, or event” (emphasis supplied), we find no merit in appellant’s argument that appellee’s affidavit was insufficient because it failed to reflect the affiant’s personal knowledge that appellant’s check had been dishonored and that service charges had been imposed.

Rather than setting forth specific facts which show there is a genuine issue to be tried, appellant submitted only its officer’s statement that he was “not aware of any justification for services charges” imposed by appellee. Thus, insofar as the propriety of imposing those charges, no genuine issue of fact remains for jury determination and the trial court properly granted summary judgment in favor of appel-lee. See generally Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26) (1988). However, the record affirmatively reveals a discrepancy between the amount of service charges claimed by appellee in the affidavit of its area manager and the total service charges indicated in the exhibits attached to the affidavit. We therefore agree with appellant that the grant of summary judgment must be reversed solely as to the amount of service charges awarded appellee with direction that the record be perfected to reflect accurately the amount to which appellee is entitled.

Case reversed with direction.

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

Martin L. Fierman, James L. Bentley III, for appellant.

Troutman, Sanders, Lockerman & Ashmore, William T. Plybon, Herbert D. Shellhouse, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1274.
    THOMAS v. THE STATE.
    (386 SE2d 402)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of trafficking in cocaine and possessing cocaine with intent to distribute. Although he was acquitted upon the trafficking count, defendant was convicted of the possession with intent to distribute count and was sentenced to serve 25 years in the penitentiary. This appeal followed. Held:

1. In his first enumeration of error, defendant asserts the trial court erred in ruling that the testimony of a witness, which was adduced at a motion to suppress hearing, could not be read to the jury pursuant to OCGA § 24-3-10 because defendant failed to demonstrate that the witness (who was indicted with defendant but who was to be tried separately) was inaccessible. We disagree.

“ ‘Before former testimony can be admitted the party offering it must show that the witness is inaccessible; and the question of inaccessibility is one for the determination of the trial court in the exercise of a sound discretion and the trial court’s ruling will not be disturbed unless a manifest abuse of discretion has been shown.’ Robertson v. State, 124 Ga. App. 119, 120 (183 SE2d 47). The primary consideration on appeal is not whether this court agrees with the trial court’s finding, but whether that finding constitutes an abuse of discretion. Clay v. State, 238 Ga. 285 (232 SE2d 559).” Kesler v. Veal, 165 Ga. App. 475, 477 (4), 478 (300 SE2d 217).

We find no manifest abuse of discretion regarding the trial court’s finding of inaccessibility. Counsel for defendant merely stated that an order forfeiting the witness’ bond had been issued; that he engaged a number of people to locate the witness with no success; and that he “heard through the grapevine” that the witness was in Miami, Florida. Defendant offered no witnesses to demonstrate the degree of diligence used to locate the witness. See Jones v. State, 250 Ga. 166, 167 (2) (296 SE2d 598); Gaither v. State, 227 Ga. 668 (182 SE2d 434). Accordingly, it cannot be said the trial court erred in refusing to permit the introduction of the witness’ motion to suppress testimony.

We cannot accept defendant’s contention that the witness’ testi mony should have been admitted because “the prior statements of party may always be shown.” The witness was not a party — his cas was severed from defendant’s case. Besides, the witness and defend ant were not opponents. See generally Green, Ga. Law of Evidenc (3d ed), § 233.

Decided September 6, 1989.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Assistant District Attorneys, for appellee.

2. During the course of trial, defendant called the assistant district attorney to the stand and questioned him about various offers of leniency which were made to other individuals to obtain their testimony against defendant. Earlier, at the outset of the trial, defendant announced that he intended to call the assistant district attorney as a witness and he moved to have him disqualified, arguing the assistant district attorney should not be permitted to act as both advocate and witness. The trial court denied defendant’s motion to disqualify the assistant district attorney.

Defendant contends the trial court erred in failing to disqualify the assistant district attorney. This contention is without merit. The assistant district attorney’s testimony pertained to formal matters only. See Gonzalez v. State, 175 Ga. App. 217 (1) (333 SE2d 132). It cannot be said, therefore, that the trial court erred in denying the motion to disqualify the assistant district attorney. See Timberlake v. State, 246 Ga. 488, 500 (7) (271 SE2d 792).

3. During closing argument, the assistant district attorney rhetorically asked the jury if it believed defendant’s “ludicrous accusation” that the State fabricated the case against defendant in order to seize a Ford Bronco automobile. Defendant’s objection to the argument was overruled.

In his final enumeration of error, defendant asserts the trial court erred in overruling the objection to the assistant district attorney’s argument. We disagree. The assistant district attorney was simply responding to defendant’s contention that he was being framed by the State. This he was permitted to do. See Eubanks v. State, 240 Ga. 544, 547 (3), 548 (242 SE2d 41).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A1333, A89A1334.
    HOLTON v. THE STATE (two cases).
    (386 SE2d 404)
   Sognier, Judge.

Lewis A. Holton appeals from his conviction on charges of crimial trespass (OCGA § 16-7-21 (a)) and making harassing telephone alls (OCGA § 16-11-39 (4)).

1. In two enumerations of error appellant challenges the sufficiency of the evidence.

Construed to support the jury’s verdict, the evidence adduced at trial revealed that appellant was intermittently involved in a romantic relationship with Bobbie O’Grady during 1987 and 1988. Terry Norris testified that O’Grady lived with him in his mobile home for three weeks in September 1987 and again from December 1987 through February 1988 because she had been “kicked out” of appellant’s home, and that during the second time she stayed with Norris they were romantically involved. Norris stated that after O’Grady moved in with him in December, appellant began calling his home number, sometimes identifying himself, and asking for O’Grady, who refused to talk to him. Norris stated that appellant on occasion used profanity and threatening language, and that he called repeatedly over a period of six or more months despite Norris’s persistent requests that the calls cease.

Norris further testified that on the night of May 23, 1988, he saw appellant at a local bar, and that after returning home, he received two telephone calls from appellant. Around 11:15 p.m. Norris heard a noise outside his home, and upon going outside to investigate saw a man he recognized as appellant drive into the yard, which was illuminated by a security light, in a black foreign-made pickup truck and ram the truck into Norris’s car. Norris fired a pistol shot into the ground, and appellant rapidly turned around and drove away. Norris’s next door neighbor testified that at approximately 11:00 p.m. on the night in question he heard a noise which sounded like a vehicular impact, and that upon looking outside he saw a small, dark pickup truck back away at high speed. Appellant testified that he owned a red Mazda pickup truck, that he sometimes drove one of his father’s pickup trucks, which were green, blue, dark green, and rust, but tha he only telephoned Norris once and that he did not run into Norris’ car.

We find the evidence authorized a rational trier of fact to fin appellant guilty beyond a reasonable doubt of the charged offenses See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although appellant argued that the lighting at the scene wa. inadequate to enable Norris to see appellant, “ £[i]t is the function o the jury, not the appellate court, to determine the credibility of wi nesses and weigh any conflicts in the evidence. The appellate cou views the evidence in a light most favorable to the jury’s verdict aft it has been rendered. (Cits.)’ [Cit.]” Anfield v. State, 188 Ga. App 345, 346 (1) (373 SE2d 51) (1988). The evidence adduced here clear) was sufficient to support the verdict, and thus we find no merit these enumerations. See id.

2. In his other enumeration appellant contends the trial cou gave an erroneous charge to the jury on the issue of when a convicti may be had on circumstantial evidence.

Decided September 6, 1989.

Mark G. Pitts, for appellant.

Henry O. Jones III, Solicitor, for appellee.

The transcript reveals that after defining circumstantial evidence, the trial judge stated that such evidence “need not meet every hypothesis, except that of the guilt of the accused, but includes reasonable inferences and hypotheses so as to justify the inference of guilt beyond a reasonable doubt.” We agree with appellant that this charge was confusing. The better practice is to charge the láw of circumstantial evidence in terms of OCGA § 24-4-6, Bagley v. State, 212 Ga. 206, 207 (2) (91 SE2d 506) (1956), and then if necessary make the point addressed by the trial court here by charging that “ ‘in order to justify the inference of guilt beyond a reasonable doubt, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. (Cit.) . . .’ [Cit.]” Brewer v. State, 156 Ga. App. 468, 469 (274 SE2d 817) (1980). See Carpenter v. State, 167 Ga. App. 634, 641-642 (8) (307 SE2d 19) (1983). Nonetheless, as the direct evidence was sufficient to authorize the jury to convict appellant of the charged crimes, we find that the error was harmless and did not affect the outcome of the trial, and accordingly we affirm. See generally Avery v. State, 141 Ga. App. 92, 93 (232 SE2d 618) (1977).

Judgment affirmed.

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


text:
    A89A1348.
    SMELTZER v. BANK OF FITZGERALD.
    (386 SE2d 406)
   Sognier, Judge.

The Law Office of Rick Ellis, as Successor in Interest to the Law Firm of Ellis & Hughes, in its capacity as Trustee for William S. and Judith H. Smeltzer, brought an action in trover against the Bank of itzgerald, alleging the Bank had converted $41,000. The trial court eld that The Law Office of Rick Ellis was not a legal entity, and rdered the substitution of Judith and/or William Smeltzer as plain-iff, and the action continued in the name of Judith Smeltzer. Cross-otions for summary judgment were filed, and Smeltzer appeals the rial court’s order resulting in her substitution as plaintiff as well as he trial court’s denial of her motion for summary judgment and rant of that of the Bank.

The record reveals that on April 17, 1986, William Smeltzer ordered the Fidelity Bank of Philadelphia, Pennsylvania to wire $41,000 from the joint account held in his name and that of appellant to the escrow account of Rick Ellis at appellee bank. Appellant testified by affidavit that the purpose of the transfer was to enable Ellis, acting as appellant’s agent, to purchase certain real estate in Wilcox County, Georgia. However, despite Smeltzer’s instructions, the Fidelity Bank inadvertently failed to designate any account into which the funds were to be paid, and merely wired the funds to appellee without any limiting instructions. Upon receiving the funds, appellee immediately applied the funds to an existing indebtedness of Smeltzer to appellee, satisfying it in full, and did not learn until the next day that Ellis had been expecting a wire transfer of $41,000 to his escrow account. The documents involved in the wire transfer clearly show that the escrow account was not mentioned, nor was any other designation or limitation made on the funds.

1. Appellant contends the trial court abused its discretion by ordering the substitution of herself and/or her husband as plaintiff(s) below because even if “the Law Office of Rick Ellis” was not a legal entity, then Rick Ellis individually or the partnership of Ellis & Hughes would be reasonably recognizable as the proper party to be substituted pursuant to OCGA § 9-11-17, and not William S. and/or Judith H. Smeltzer.

It is undisputed that the Law Office of Rick Ellis is not a legal | entity and thus the misnomer must be corrected. See generally Russell v. O’Donnell, 132 Ga. App. 294, 296 (208 SE2d 107) (1974). Ini addition, OCGA § 9-11-17 (a) provides that “[e]very action shall bel prosecuted in the name of the real party in interest. . . . [However,! n]o action shall be dismissed on the ground that it is not prosecuted! in the name of the real party in interest until a reasonable time has! been allowed after objection for ratification of commencement of the! action by, or joinder or substitution of, the real party in interest.’] Thus, under OCGA § 9-11-17, substitution of the real party in inter-] est is proper as well. Appellant argues, however, that the real party ir interest in this case is Rick Ellis, as appellant’s retained attorney anc the owner of the escrow account into which it was intended that th^ wire transfer be deposited. We do not agree.

We find no merit in any of appellant’s arguments that Rick Ellil is the real party in interest based on Ellis’s possession, actual or con| structive, of the funds, because the record indicates affirmatively ths wired funds are the equivalent of cash, and that the funds in questioj were wired to appellee without limitation or direction to credit Ellis] account, and were never deposited to Ellis’s account. Thus Ellis dil not have possession of the funds. Nor do we agree with appellant thq Ellis had standing to maintain the action based on his status as trustee of the funds. Although OCGA § 9-11-17 (a) provides that trustee of an express trust . . . may bring an action in his own name without joining with him the party for whose benefit the action is brought,” an express trust must be created or declared in writing, OCGA § 53-12-23, and no such writing exists here. See also Tiedeman v. Imperial Fertilizer Co., 109 Ga. 661, 664-665 (34 SE 999) (1900), where the Supreme Court held that “ ‘[a]n attorney’s possession of the money of his client is more like that of a mere' agent or bailee.” Further, contrary to appellant’s argument, generally an agent has no authority to enforce in his own name the rights of his principal. Evans Marketing Agency v. Federated &c. Growers, 170 Ga. 30, 36 (152 SE 49) (1930).

Accordingly, we find no error in the trial court’s order requiring substitution of appellant and/or her husband, William, as party plaintiff.

2. Turning to the merits of the case, appellant contends the trial court erred by denying her motion for summary judgment and granting summary judgment in favor of appellee.

(a) Appellant first argues, relying on Nat. City Bank v. Busbin, 175 Ga. App. 103, 105 (2) (332 SE2d 678) (1985), that the requirements for setoff were not present here, because Smeltzer had no general deposit account at appellee to which the funds were wired. The record reveals, however, that Smeltzer was indebted to appellee for over $40,000 on notes which he had personally guaranteed, and that those notes contained the following provision: “[Appellee] may but shall not be required to, apply, on or after demand, to the payment of this debt, any funds, credit or property held by or in possession of [appellee], on deposit, in trust or otherwise, for account of any Borrower.” (Emphasis supplied.) These contractual provisions did not require the debtor (Smeltzer) to have an account at appellee’s facility to activate appellee’s right of setoff, and thus this argument of appellant must fail.

(b) Appellant next argues that appellee’s knowledge that the funds were intended for the Ellis escrow account precludes a setoff. We do not agree. “It is well settled in this state, as in a sizeable number of other jurisdictions, that unless funds deposited with a lending bank are in an account governed by an agreement which designates the funds as trust funds, or unless the lending bank by other means has actual knowledge that the funds . . . are intended to discharge a specific obligation or otherwise partake of the character of trust funds, then the funds are treated as any other general deposit funds, are commingled with other funds on deposit with the bank, and are subject to set-off against any matured indebtedness for which the bank is creditor to the principal. [Cits.]” (Emphasis supplied.) Cotton States &c. Ins. Co. v. C & S Nat. Bank, 168 Ga. App. 83, 87 (2) (308 SE2d 199) (1983). Thus, because the evidence is uncontroverted that appellee had no knowledge the wired funds were intended for the Ellis escrow account when it set off the funds against Smeltzer’s debt, we find that the setoff was not precluded.

Decided September 6, 1989.

Rainwater & Christy, Gary C. Christy, David A. Forehand, Jr., for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellee.

(c) Appellant finally contends that even were a setoff permissible against Smeltzer’s debts, the funds wired actually belonged to appellant, and not to her husband, because even though the funds originated in a joint account, when received by appellee, they belonged to appellant and not to Smeltzer. Appellant cites no authority for this proposition nor has research uncovered any. It is uncontro-verted that Smeltzer was fully authorized to withdraw the funds from the joint account, and the record reveals that although appellee knew the funds had been ordered withdrawn from a joint account, even assuming the funds actually belonged solely to appellant (which would be a question of fact), that question of fact would not be material to the resolution of this case because appellee had no knowledge whatsoever that the funds belonged to anyone other than Smeltzer. See generally McRitchie v. Atlanta Trust Co., 170 Ga. 296, 301-302 (1), 313-314 (10) (152 SE 834) (1930). Although appellant and/or her husband may have recourse against the Philadelphia bank which erroneously failed to transmit Smeltzer’s explicit directions in wiring the funds, no liability on the part of appellee has been shown. Accordingly, the trial court properly granted summary judgment to appellee.

3. Appellant’s remaining enumeration of error is without merit.

Judgment affirmed.

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


text:
    A89A1464.
    A89A1465.
    HENDERSON v. THE STATE. SMITH v. THE STATE.
    (386 SE2d 408)
   Sognier, Judge.

Robert Henderson, Jr. and Cynthia Lanier Smith were bot found guilty of possession of cocaine with intent to distribute. Smit was also found guilty of misdemeanor possession of marijuana. Thei appeals are consolidated in this opinion.

1. Appellant Henderson in his sole enumeration of error contend, the evidence was insufficient to support his conviction. Construed t support the verdict, evidence was adduced at trial that within min utes after officers of the DeKalb County Police Department made th second controlled buy of cocaine in two consecutive days at the same Glenwood Avenue apartment, a search warrant was executed by the narcotics squad at that apartment. Six adults, including appellants Henderson and Smith, were in the apartment and cocaine was found on the dining room table. Appellant Smith, the named lessee of the apartment, was found holding a purse containing a gun, $700, and approximately an ounce of marijuana. Appellant Henderson was discovered in the left rear bedroom near a dresser on which was located a partially open blue denim pouch or purse, about two-thirds the size of a football, enclosing 200 small ziplock bags each containing a substance subsequently identified as 99 percent pure cocaine. During the search of Henderson, police found $26,802 in cash on his person, primarily in $100 bills. Henderson also carried a telephone pager which beeped repeatedly, but when police called the numbers on the beeper the answerers hung up.

Appellant Henderson testified he was a hair stylist and that he carried the beeper so his clients could contact him. Appellant denied knowing that cocaine sales were being conducted in the apartment while he was present, that cocaine was in plain view in the dining area of the apartment, or that the partially unzippered pouch on the dresser in the room where he was found contained cocaine. Appellant explained that the money he was carrying was for the purchase of a day care center business he and other members of his family intended to buy and that only $6,000 was his personal contribution to the intended purchase, the rest constituting cash contributions of other family members. Appellant testified that although he had both a checking account and a savings account at banking institutions, his $6,000 share of the money was from savings he kept at home in $100 bill denominations. Appellant stated he carried the money to a meeting regarding the contemplated purchase but when nothing came of the meeting he retained the money with the intention of taking it to his bank the following day and obtaining a cashier’s check. The State introduced testimony from the day care center’s owner at the time in question and various real estate agents and others from which the jury would have been authorized to find that the negotiations for any possible sale of the day care center were at a very preliminary stage.

“ ‘To warrant a conviction on circumstantial evidence, proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. (Cits.) The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. (Cits.) In such cases it is not necessary that the circumstances remove every possibility of the defendant’s innocence. (Cits.)’ [Cits.] The evidence in the case sub judice satisfied this standard and was such that any rational trier of fact could find [appellant Henderson] guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [1979]. [Cits.]” Skinner v. State, 188 Ga. App. 458, 459 (1) (373 SE2d 271) (1988).

2. Appellant Smith contends the trial court erred by denying her amended motion for new trial in which she asserted she was denied effective assistance of counsel by her trial counsel in regard to certain pretrial matters. Appellant argues that her trial counsel was ineffective because he failed to persuade her to permit him to pursue plea bargaining. Appellant does not deny she explicitly instructed her trial counsel that she would not testify against appellant Henderson, and the evidence at the hearing on her motion clearly established that “the only way” the State would have been willing to plea bargain with appellant would have been in exchange for her testimony against Henderson. The evidence also established that appellant’s trial counsel had informed her of the State’s non-negotiable condition to entertaining any offer to plea bargain and that appellant had rejected the idea. Appellant also argues that her trial counsel was ineffective because he failed to persuade her to permit him to proffer a plea of guilty to any of the charges against her. However, appellant’s trial counsel testified that in addition to her instruction to him about refusing to testify against Henderson, she also had instructed him she did not want to plead guilty if it resulted in any jail time, and appellant’s own testimony at the hearing established she had agreed to plead guilty only for a probated sentence or for time she had already served. Although at the hearing appellant could not remember or denied being so informed, her trial counsel testified that he had informed appellant of the nature of the charges pending against her, the penalties involved, and had discussed the evidence with her, including the fact that the marijuana and gun were found on her person and that she was the named lessee of the apartment where the cocaine was found. The transcript also reveals that appellant was neces sarily familiar with what evidence the State had against her becaus that evidence had been presented in the first trial of herself and Hen derson, which had ended in a mistrial (apparently as the result of procedural error).

“To establish that there has been actual ineffective assistance o counsel, the defendant must show that counsel’s performance was de ficient and that the deficiency prejudiced the defense. In order t prove the defense has been prejudiced, defendant must show there i a reasonable probability that the result of the proceedings would hav been different but for counsel’s unprofessional deficiencies. [Cit.] Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988). As to t plea bargaining issue, we do not agree with appellant that her trial counsel provided ineffective counsel when, after providing her with the information she needed to make intelligent decisions about her legal situation, he did not behave unprofessionally so as to violate applicable disciplinary rules and ethical guidelines by disregarding her explicit instructions to him and by “persuading” her to do that which she had already refused, for nonlegal reasons. As to the guilty plea issue, the- facts detailed above are adequate to show that appellant received individualized attention by competent, independently retained counsel, see Walker v. Hopper, 234 Ga. 123, 125-126 (1) (214 SE2d 553) (1975), who was both in a position to counsel his client intelligently and did so. Compare Wharton v. Jones, 248 Ga. 265, 267 (282 SE2d 310) (1981) (counsel’s ignorance of important information resulted in failure to counsel intelligently client who entered guilty plea). It is thus apparent that appellant rejected the certainty of a plea bargained sentence for the uncertainty of a jury trial. See Cook v. State, 255 Ga. 565, 581 (17) (f) (340 SE2d 843) (1986).

Decided September 6, 1989.

Crecelius & Crecelius, Bill W. Crecelius, Jr., for appellant (case no. A89A1464).

John D. McCord III, for appellant (case no. A89A1465).

Robert E. Wilson, District Attorney, Thomas S. Clegg, Robert M. Coker, Assistant District Attorneys, for appellee.

“Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. . . . [W]hen a defendant has given counsel reason to believe that pursuing certain [matters] would be fruitless or even harmful, counsel’s failure to pursue those [matters] may not later be challenged as unreasonable.” Strickland v. Washington, 466 U. S. 668, 691 (104 SC 2052, 80 LE2d 674) (1984). Further, since appellant was required to show not only that trial counsel’s performance was deficient but also that the alleged deficient performance prejudiced her defense, Foote v. State, 188 Ga. App. 304, 305 (372 SE2d 843) (1988), which appellant failed to do, the evidence in this case supports the trial court’s finding of effective assistance of counsel and accordingly we hold that the trial court did not err by denying appellant’s motion for new trial. See generally Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988).

Judgments affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1493.
    MOORE GROUP, INC. v. SINGLETARY.
    (386 SE2d 411)
    Decided September 6, 1989.

      Young, Young & Clyatt, James B. Thagard, for appellant.

      Guttshall & Guttshall, Russell M. Guttshall III, for appellee.
   Banke, Presiding Judge.

The appellee, Singletary, filed suit against the appellant, Moore Group, Inc., and against Southeastern Fidelity Insurance Company seeking to recover benefits allegedly due her under a contract of automobile insurance. Southeastern Fidelity admitted that it had issued the policy in question, while Moore Group denied having issued the policy. The case is before us pursuant to our grant of Moore Group’s application for an interlocutory appeal from the denial of its motion for summary judgment.

In support of its summary judgment motion, Moore Group averred that it was not a party to the insurance policy in question; and the policy itself is consistent with this position in that it names Southeastern Fidelity Insurance Company as the sole insurer. Indeed, Moore Group further averred that it is not an insurance company. The appellee’s contention that Moore Group is nevertheless obligated on the policy is premised on the fact that certain documents received by her in connection with her claim were written on Moore Group’s letterhead, as well as on evidence that the investigator assigned to her claim was an agent of Moore Group. It is evident from the record that Moore Group owns several insurance companies, one of which is Southeastern Fidelity. Held:

As the undisputed evidence reveals that Moore Group is not an insurance company and that it entered into no contract with the ap-pellee, there is no basis upon which it can be held liable to her in the present action. See OCGA § 33-4-6. It follows that its motion for summary judgment should have been granted.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Beasley, Judge.

text:
    A89A1565.
    INDUSTRIAL INDEMNITY COMPANY v. WALCK.
    (386 SE2d 521)
   Beasley, Judge.

Industrial Indemnity Company insured Coastal Chevrolet Corporation, to which Walck had taken her Camaro for body work. Coasta loaned a Citation to her for use during the repairs.

Walck notified Coastal of vibration in the Citation, and Coasta advised it merely needed alignment and there was no problem. On the second or third day of use, while driving to work, Walck experienced vibration as she went into a curve. The car spun out of control and rolled, causing a compression fracture of her back. The investigating officer told her a tire had blown.

IIC sought a declaratory judgment that it was not the “primary” insurer and that it was “not liable to [Walck] for benefits under the Georgia Motor Vehicle Reparations Act unless and until benefits provided under her personal coverage are first paid and exhausted.” Walck admitted the above paragraph in her answer, but stated that “because it appears that she did not have insurance coverage Coastal Chevrolet Corporation’s insurance coverage would be primary and would be required to pay the PIP benefits in question.” Although no insurance policies are in the record, Walck’s answer admits that she had been notified that her coverage with Cotton States had lapsed for non-payment.

She counterclaimed for the statutory penalty, attorney fees, costs, and punitive damages under OCGA § 33-34-6 (b) & (c) and sought summary judgment on it. The court granted summary judgment as to liability for PIP benefits only, ruling that issues of fact remained as to the amount owed and the statutory penalties and attorney fees.

IIC contends it was error to grant summary judgment on the ground of lapsed coverage when Walck had voluntarily permitted the statutorily required coverage on her automobile to be cancelled. IIC’s theory appears to be that it owes no coverage because Walck had no complying policy and to allow her the benefits of IIC coverage would be against public policy. The argument is premised on the language of OCGA § 33-34-3 (e) which provides that “[e]ach policy of liability insurance issued in this state providing coverage to motor vehicles owned by a . . . corporation engaged in the business of selling at retail new and used motor vehicles shall provide that, when an accident involves the operation of a motor vehicle by a person who is neither the owner of the vehicle involved in the accident nor an employee of the owner and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the policy insuring the said operator and any policy under which the owner is an insured shall afford excess coverages. If the policy under which the owner is an insured and which affords excess coverage contains a provision which eliminates such excess coverage based on the existence of coverage provided in the operator’s policy, such provision of the owner’s policy shall be void.”

Georgia has an “automobile related plan by which [PIP] insur-anee ‘follows the car.’ ” Georgia Cas. &c. Co. V. Waters, 146 Ga. App. 149, 152 (246 SE2d 202) (1978). In line with this policy, OCGA § 33-34-4 (a) mandates that “[n]o owner of a motor vehicle required to be registered in this state or any other person . . . shall operate or authorize any other person to operate the motor vehicle unless the owner has insurance on the vehicle providing the following minimum [PIP] coverage . . . .” (Emphasis supplied.)

Decided September 6, 1989.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellant.

OCGA § 33-34-3 (e) as quoted above is in derogation of this basic scheme and allows the operator’s insurance to be primary when driving a car owned by an entity engaged in the business of selling motor vehicles. Before this dealer’s provision applies, however, section 33-34-3 (e) requires that the operator be “an insured under a complying policy” other than the one provided by the owner. IIC premises its public policy argument on the contention that Walck’s actions in driving the “loaner” while not having effective insurance on her owned vehicle violated criminal statutes.

Walck’s actions in driving the “loaner” insured by IIC were not in violation of either OCGA § 33-34-12 (a) (1), which requires that proof of effective insurance be kept in the vehicle, or OCGA § 33-34-12 (b), which prohibits operating a vehicle without “effective insurance on such vehicle.” There was effective insurance on the vehicle and there is no indication in the record that proof was not in the car.

Further, if it had been the intent of the legislature to so limit the reach of OCGA § 33-34-4 (e) in line with IIC’s view, it could easily have done so. “In statutory construction, ‘ “(i)t is fundamental that the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.” (Cit.) In fact, “where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. (Cit.)” (Cit.)’ Williamson v. Lucas, 171 Ga. App. 695, 697 (320 SE2d 800) (1984).” Standard Guaranty Ins. Co. v. Grange Mut. Cas. Co., 182 Ga. App. 842, 843 (357 SE2d 295) (1987).

There was no error. See Auto-Owners Ins. Co. v. Safeco Ins. Co., 245 Ga. 558 (266 SE2d 175) (1980).

Judgment affirmed.

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

Ashman & Zipperer, Charles R. Ashman, James B. Ashby, for appellee.


text:
    77182.
    BELL et al. v. FIGUEREDO et al.
    (387 SE2d 52)
    Decided September 7, 1989.

      Arnall, Golden & Gregory, Jeffrey M. Smith, J. Randolph Evans, Austin E. Catts & Associates, Austin E. Catts, Robert H. Ben-field, Jr., for appellants.

      Love & Willingham, Daryll Love, John E. Gilleland, Robert P. Monyak, for appellees.
   Sognier, Judge.

In Bell v. Figueredo, 259 Ga. 321 (380 SE2d 29) (1989), the Supreme Court reversed the judgment of this court in Bell v. Figueredo, 190 Ga. App. 163 (378 SE2d 475) (1989). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


author: Birdsong, Judge.

text:
    A89A0843.
    HOLYOKE MUTUAL INSURANCE COMPANY v. CHEROKEE INSURANCE COMPANY et al.
    (386 SE2d 524)
   Birdsong, Judge.

This appeal concerns the construction of two identical “other insurance” clauses in insurance policies issued by appellant Holyoke Mutual Insurance Company in Salem (“Holyoke”) and appellee Cherokee Insurance Company (“Cherokee”) insuring the McDuffie County Board of Education. As a result of a $91,803.45 judgment against the McDuffie County Board of Education, Cherokee made demand upon Holyoke for payment of its $25,000 policy limits. In response, Hol-yoke filed a declaratory judgment action to clarify the respective limits of the policies. Cherokee’s policy has limits of $300,000. There is no dispute that both policies are primary policies and that both insurers provide coverage on the same party, the same interest, the same property, and the same casualty.

The only dispute concerns the construction of the following “other insurance” clause which is contained in both policies: “Other insurance: The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the [company’s liability under this policy shall not be reduced by the existence of such other insurance.

“When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the [c]ompany shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:

“(a) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the [c]ompany shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.

“(b) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, the [c]ompany shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”

Holyoke contended that the other insurance clause in its policy must be construed so that its liability is determined on a pro rata basis by policy limits under subparagraph (b). Cherokee, however, asserted that both companies should be liable for contributions by equal shares under subparagraph (a). The trial court construed the policies and ruled that the terms of the identical clauses required the companies to contribute by equal shares under subparagraph (a). Holyoke appeals from that judgment and assigns as error the trial court’s construction of the policy. Held:

Holyoke argues that the only proper legal construction of the policy is a pro rata contribution by policy limits under subparagraph (b). It contends that close reading of the policy language reveals that Hol-yoke intended to provide for contribution by equal shares only if the other insurer, or insurers, provided comparable coverage. According to Holyoke, as Cherokee did not provide comparable and supporting language, we are compelled to find that pro rata contribution by policy limits is required. Holyoke, however, does not indicate where in its policy this intention is reflected, does not indicate what comparable coverage is lacking, and does not designate what comparable and supporting language is missing in the Cherokee policy. We have closely read the policy as Holyoke suggested, and do not find that the policy language supports the construction Holyoke proposes.

Our task is to determine the intention of the parties. OCGA § 13-2-3. “ ‘[U]nder Georgia law in attempting to ascertain the intentions of the parties, insurance contracts are governed by the ordinary rules of construction applicable to other contracts. [Cit.] The contract must be examined “as a whole” in attempting to construe any portion thereof. [Cits.] “Where the terms and conditions of a policy are unambiguous, the court must declare the contract as made by the parties. . . . Where the meaning is plain and obvious, it should be treated as literally provided therein.” [Cit.]’ ” U. S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 78-79 (355 SE2d 428). Further, in construing the contract, we must give words their usual and common signification. OCGA § 13-2-2. As the terms are clear and unambiguous, we need only look to the contract to find the intention of the parties. Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659).

Following these rules, we find nothing in the policies which requires the result Holyoke urges. The coverage argument is without merit because Holyoke has conceded that the policies provide identical coverage. If by “coverage” Holyoke intended to argue that it only intended subparagraph (a) to apply when the other insurers provided comparable limits, there is also no support in its policy for that contention. The plain language of the clause in question sets out how contribution by equal shares will be made when the limits are different: “until the share of each insurer equals the lowest applicable limit of liability under any one policy . . . .” Obviously, this clause contemplates circumstances such as in this case where the limits of the policies are not the same. Further, there is no support for Holyoke’s contention that the Cherokee policy does not provide comparable and supporting language. The language in the clauses in the two policies is identical. This argument is entirely without merit.

Giving the language in the clauses its usual and customary meaning, Griffin v. Adams, 175 Ga. App. 715, 716 (334 SE2d 42), we find that both clauses “provide” for, i.e., permit, make available, allow, contribution by equal shares, and, therefore, subparagraph (a) applies, not subparagraph (b). The cases cited for our attention by Hol-yoke, neither support the position taken in this court, nor warrant the application of subparagraph (b).

In Veillon v. Southern Farm Bureau, 254 S2d 130 (La. App. 1971), one of the policies in question did not provide for contribution by equal shares, and obviously subparagraph (b) applied. While Georgia Cas. &c. Co. v. Universal Underwriters Ins. Co., 534 F2d 1108 (5th Cir. 1976), construes the clause in this case to require application of subparagraph (b), it does so because that court found the language in subparagraph (a) did not require contribution by equal share. We do not find that to be a correct or reasonable construction of the policy. Further, we note that this interpretation has been abandoned by the U. S. Fifth Circuit Court of Appeals in later cases. See McDaniels v. Great Atlantic &c. Co., 602 F2d 78 (5th Cir. 1979) and Employers Cas. Co. v. Employers Commercial &c. Ins. Co., 632 F2d 1215 (5th Cir. 1980). We find the other cases cited by Holyoke in support of its contention to be equally unpersuasive.

Decided September 7, 1989.

Culbreth & Clarke, J. Caleb Clarke III, for appellant.

Redfern, Green & Hoffman, Brady D. Green, Surrett, Walker, Creson & Colley, John L. Creson, for appellees.

Therefore, we find that the language in subparagraphs (a) of “both policies clearly provide for contribution by equal shares and neither policy provides a basis other than equal as the exclusive basis for computing contribution. The fact that the policy provides for an alternative method of apportioning the loss had there been no equal share provision in the other policy does not mean that neither policy had such an equal share provision in it. We refuse to construe the word ‘provide’ to require an unconditional promise.” McDaniels v. Great Atlantic &c. Co., supra at 83. “Each [policy] says that if the other policy provides for equal sharing, then the liability will be shared equally. Each policy also says that if the other insurance does not provide for equal contribution, then a pro-rata or proportionate method applies. In this case, both policies show a preference for contribution by equal shares.” Employers Cas. Co. v. Employers Commercial &c. Co., supra at 1220. Therefore, “[t]here is no question that, despite the conditional nature of the language used, both policies must be construed to provide for contribution by equal shares.” Aviles v. Burgos, 783 F2d 270, 282 (1st Cir. 1986). See also Federal Ins. Co. v. Cablevision Systems Dev. Co., 836 F2d 54, 60 (2d Cir. 1987). Accordingly, Holyoke’s enumeration of error is without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1156.
    RONEY v. THE STATE.
    (386 SE2d 412)
   Birdsong, Judge.

Appellant Wiley Roney appeals his conviction and sentence for trafficking in cocaine, obstruction of an officer, and driving while license is suspended.

While on stakeout on an unrelated case, Sgt. Jackson of the Moultrie/Colquitt County Drug Squad observed appellant drive into a motel parking lot and retrieve a little white package from the trunk of another vehicle. Appellant put the package in his pocket. He then talked to a woman, later identified as his wife, gave her some money and drove off. Sgt. Jackson radioed this information to Lt. Rayburn. Rayburn found appellant and asked him to step out of his vehicle. Appellant struck Rayburn on the chest with both hands, pushing him backwards, and then fled on foot. The police followed in hot pursuit. Sgt. Holmes saw appellant running with something in his hand. Officer Ethridge saw appellant fall down. Subsequently a white plastic bag containing over 28 grams of cocaine was found in this same area. The bag was dry and clean when it was recovered. Sgt. Jackson testified that the bag found looked like the “same type object” appellant had been in possession of in the motel parking lot. Appellant was apprehended and placed in arrest. Appellant was searched and found to be carrying $1,427 in currency.

Appellant’s wife testified that she had given appellant the money, which was from her income tax return, the night before to make a car payment. She did not see appellant with a white paper bag, and he did not get anything out of the car trunk in the motel parking lot. Held:

1. Appellant asserts that the evidence is insufficient to establish appellant’s guilt beyond a reasonable doubt.

Appellant does not contest the sufficiency of the evidence of the offense of obstruction of an officer either by argument or citation of authority in his brief. Accordingly, this issue is not before us on review. Court of Appeals Rule 15 (c); Adams v. State, 187 Ga. App. 340 (3) (370 SE2d 197).

Appellant asserts that the evidence is insufficient as a matter of law to support his conviction of driving while his driver’s license was suspended. The only evidence introduced to sustain this charge, in addition to that showing appellant was driving a motor vehicle on the day of the incident and was arrested after his escape attempt failed, is as follows: “[DISTRICT ATTORNEY]: Were you able to check his driver’s license? [LT. RAYBURN]: Yes, whenever we brought him in to book him he didn’t have any identification on him. We ran his driver’s license and . . . we found it to be suspended.” (Emphasis supplied.) No objection was made to the introduction of. this evidence. Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection. See generally Slater v. State, 44 Ga. App. 295, 297 (161 SE 271). However, the record does not establish that this testimony was hearsay. Rather, it is equally plausible that Rayburn, in conjunction with one or more other persons, personally conducted the check that revealed appellant’s license was suspended. On appeal we are required to construe the evidence in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Moreover, assuming but not conceding that this testimony may have been subject to a “best evidence” objection, compare State v. Hortman, 185 Ga. App. 756 (1) (365 SE2d 887) and Denson v. State, 149 Ga. App. 453 (2) (254 SE2d 455), appellant has waived this issue by failing to object timely on that ground. Rushin v. State, 63 Ga. App. 646 (1) (11 SE2d 844). Accordingly, Rayburn’s testimony was competent and would establish the fact that appellant who was driving on the day he was arrested and booked had a suspended driver’s license.

To support the verdict of guilty of trafficking in cocaine and of driving while license was suspended, the circumstantial evidence must only exclude hypotheses that are reasonable; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence in a light most favorable to the verdict, we conclude that the jury could rationally have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that the trial court erred in admitting evidence of appellant’s prior conviction for possession of marijuana with intent to distribute.

Appellant objected at trial on the specific grounds that the conviction did not constitute a “similar offense,” and because of the highly prejudicial impact that the evidence would have on the jury. “Evidence of similar [independent] crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455). It may also be admissible in certain circumstances for “some other rational connection with the offense for which [an accused] is being tried.” Jones v. State, 257 Ga. 753, 757-758, n. 6 (363 SE2d 529). But before such evidence is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter, Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989); Oller, supra. Moreover, evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. Robinson, supra; accord Rainwater v. State, 256 Ga. 271, 272, n. 2 (347 SE2d 586).

In this instance sufficient evidence of record exists to establish that appellant was the perpetrator of the offense of possession of marijuana with intent to distribute. Wé also are satisfied that the record contains adequate evidence to establish that there existed a sufficient similarity between the marijuana offense and the current trafficking in cocaine charge. In particular, we note the similarity in both cases between the conduct of the accused in disposing of the illegal substance before police apprehension. Also in both instances, appellant refused to obey the police order to leave his vehicle and thereafter was belligerent (in the present case he struck the arresting officer and fled, and in the former case he had to be physically removed from the motorcycle and handcuffed). Finally, both the current charge of cocaine trafficking and the prior offense of marijuana possession with intent to distribute inherently reflect a similarity of criminal design to provide controlled substances to other persons.

Further, assuming arguendo that some degree of prejudice to appellant would flow from the mere admission of this evidence, such prejudice was outweighed by probative value or its relevancy to the issues on trial, specifically to appellant’s motive, bent of mind, plan, scheme and course of conduct. In this regard, notwithstanding that the marijuana offense occurred in December 1984, we find persuasive not only the nature of the prior criminal act and the similarity of the circumstances surrounding its commission, but also the trial judge’s clear and concise limiting instruction to the jury. See Johnson v. State, 258 Ga. 506 (3) (371 SE2d 396) (finding no error and noting that the trial judge gave an “appropriate limiting instruction”).

Prejudice does not automatically outweigh relevancy merely because of a lapse of time between the current charge and the prior marijuana conviction. “Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. See Rich v. State, 254 Ga. 11, 14 (325 SE2d 761) [evidence eleven years old not inadmissible]. Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” Oller, supra at 820.

Moreover, “ ‘ “(a)dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court,” ’ Santone v. State, 187 Ga. App. 789 (3) (371 SE2d 428), ‘ “and in the absence of an abuse of judicial discretion, this court will not interfere” with the trial court’s ruling.’ Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38).” Gully v. Glover, 190 Ga. App. 238, 242 (4) (378 SE2d 411). We find no abuse of discretion in this ruling.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Decided September 7, 1989.

John G. Runyan, for appellant.

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


text:
    A89A1174.
    PARKER v. BELLAMY-LUNDA-DAWSON.
    (386 SE2d 527)
   Beasley, Judge.

This case appears for the second time here. See Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257 (378 SE2d 502) (1989). As in the first instance, we must grant appellee defendant Bellamy-Lunda-Dawson Construction Company’s motion to dismiss plaintiff Parker’s appeal. It is procedurally defective.

The trial court granted summary judgment to BLD in this negligence action on August 24, 1988 and entered final judgment. Our first opinion provides a detailed statement of the litigation. Parker did not appeal but instead filed a “Motion to Set Aside Judgment and for a New Trial” on September 21.

The trial court refused to set aside the judgment, entering an order to that effect on October 26. This order, which was the subject of Parker’s previous appeal, did not expressly rule on the new trial aspect of Parker’s motion. Even though in the first appeal, Parker’s amended notice of appeal sought review only of the refusal to set aside the judgment, the enumerations of error and briefs raised an implicit denial of the motion for new trial as well.

In the first opinion of this Court, it was expressly recognized that a motion for new trial was not the proper vehicle to obtain reconsideration by the lower court of its grant of summary judgment. Even if it was, the opinion continued, Parker could not use the new trial aspect of his motion to circumvent the mandatory discretionary appeal provision of OCGA § 5-6-35 (a) (8).

Rehearing in this Court was denied on February 10, 1989. Parker filed an intention to apply for certiorari to the Supreme Court.

On February 22, another judge of the lower court entered an order expressly denying Parker’s motion for new trial and on the same day, Parker filed the present notice of appeal from the denial. His application for certiorari was withdrawn on March 15.

1. As said before, “ ‘a motion for new trial is not the proper vehicle to obtain a re-examination of the legal conclusions solely involved in a grant of summary judgment. (Cits.)’ ” Parker, supra, citing Sands v. Lamar Properties, 159 Ga. App. 718, 721 (285 SE2d 24) (1981). What is more crucial here, “ ‘a motion so filed has no validity and will not extend the filing date of a notice of appeal within the intent and meaning of [OCGA § 5-6-38].’ [Cit.]” Moore v. First Nat. Bank of Atlanta, 148 Ga. App. 631 (252 SE2d 60) (1979). See also Dunn v. Lockheed-Ga. Co., 143 Ga. App. 66 (237 SE2d 531) (1977); Shine v. Sportservice Corp., 140 Ga. App. 355 (231 SE2d 130) (1976).

Decided September 7, 1989.

George P. Graves, for appellant.

R. Wayne Thorpe, Richard R. Hays, for appellee.

Inasmuch as Parker’s present notice of appeal is not timely to review the objected-to grant of summary judgment to BLD, this Court has no jurisdiction to entertain the appeal. Although Parker also enumerates as error the trial court’s failure to grant him partial summary judgment, there is no indication in the record that such was sought or ruled on.

The motion to dismiss the appeal is granted.

2. Following the filing of appellee’s motion, appellant filed a “Petitioner’s Motion to Amend and Brief in Support and in Response to Motion to Dismiss.” By it appellant apparently seeks to retitle his brief “Petition for Appeal.” A ruling on this request is not warranted because such change in denomination cannot revive or save the present appeal.

Appeal dismissed.

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


text:
    A89A1442.
    RHINE v. THE STATE.
    (386 SE2d 691)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of the distribution of cocaine and contributing to the delinquency of a minor. Following the imposition of sentence, defendant moved for a new trial. The motion was denied and defendant appealed. Held:

1. Four juveniles testified they were present when defendant gave one of the four a matchbox (containing rock cocaine) and some money (to hold the matchbox for defendant). This evidence was sufficient to enable any rational trier of fact to find defendant guilty of the distribution of cocaine and contributing to the delinquency of a minor beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See also Dorsey v. State, 187 Ga. App. 725 (1), 726, 727 (371 SE2d 207). Any discrepancies in the testimony of the four juveniles were resolved by the jury in favor of the State. We must do likewise. Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264). The first and second enumerations of error are without merit.

Decided September 7, 1989.

Mark G. Pitts, for appellant.

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

2. In his third enumeration of error, defendant asserts the trial court erred in limiting the number of juvenile convictions which could be used to impeach the prosecution’s witnesses. This enumeration of error is devoid of merit. The record fails to show that the trial court made any ruling whatsoever concerning the number of juvenile convictions which defendant could use to impeach the State’s witnesses.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1498.
    WINTON v. ADAMS TRANSFER & STORAGE COMPANY, INC.
    (386 SE2d 528)
   McMurray, Presiding Judge.

Plaintiff brought suit against defendant seeking the value of a lost “Hoshi” picture. It was alleged that defendant was hired by plaintiff to move plaintiff’s household furnishings from one Marietta, Georgia, address to another; that defendant did not deliver the “Hoshi” picture to the intended destination although it had a duty to do so; and, that plaintiff was damaged because defendant breached its duty to deliver the “Hoshi” picture. Defendant answered the complaint and denied any liability to plaintiff. Thereafter, following discovery, the case was tried by the court sitting without a jury. At the close of plaintiff’s evidence, defendant moved for an involuntary dismissal. The trial court granted the motion, entering an order which reads, in part, as follows:

“The defendant contracted to move certain household goods of plaintiff from one residence in Marietta, Georgia to another residence in Marietta, Georgia. Plaintiff had instructed defendant that his art prints would not be included among the items to be moved by defendant. When defendant’s workers came to plaintiff’s residence to load his furniture, plaintiff was not present but had a friend present to oversee the move. After the furniture was loaded, there was still room on the truck, and the workers offered to transport the prints. Plaintiff’s friend, acting as plaintiff’s agent, allowed the movers to carry the prints on the truck. Approximately one month after the move, plaintiff realized one of his “Hoshi” prints was missing. He brought this action to recover the value of the print.

“Prior to the move, the parties entered into a contract which contained the following provision: The carrier shall be liable for physical loss of or damage to any articles from external cause while being carried or held in storage in transit EXCEPT for condition or flavor of perishable articles, and EXCEPT documents, currency, money, jewelry, watches, precious stones or articles of extraordinary value which are not specifically listed on the bill of lading . . . The Hoshi print was not listed on the bill of lading, and the evidence was uncontra-dicted that the print was an article of extraordinary value. ‘Exculpatory clauses in contracts in Georgia are valid and binding and not void as against public policy where the bailor relieves himself from his own negligence, except for that negligence which amounts to wilful and wanton misconduct.’ Hall v. Gardens Services, Inc., 174 Ga. App. 856, 857 (1985). There was no evidence presented of wilful or wanton misconduct by defendant. Therefore, defendant’s motion for involuntary dismissal is granted.”

Plaintiff appeals, enumerating error upon the grant of defendant’s motion for involuntary dismissal. Held:

Plaintiff contends the exculpatory clause cannot shield defendant from liability in a negligence (as opposed to a breach of contract) action. In this regard, he argues that his action sought damages in tort for defendant’s negligent loss of the “Hoshi” picture and that, therefore, the exculpatory clause is of no import. We disagree. The duty of defendant to deliver the “Hoshi” picture to plaintiff arose solely from the contract. Accordingly, “the remedy of the plaintiff for a breach of that duty, even though the breach is occasioned by the defendant’s negligence, is in contract and not in tort. [Cits.]” Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 253 (76 SE2d 536).

Pennsylvania Millers &c. Ins. Co. v. Thomas Milling Co., 137 Ga. App. 430 (224 SE2d 55), upon which plaintiff relies, is inapposite. In that case, a negligent inspection action was predicated upon a duty which arose dehors the contract. In the case sub judice, on the other hand, plaintiff seeks to impose tort liability upon defendant for a duty which arose solely from the contract. This, he cannot do. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 253, supra.

Inasmuch as plaintiff’s cause of action is predicated on the contract, plaintiff is bound by the terms of the contract, including the exculpatory clause. Hall v. Gardens Svcs., 174 Ga. App. 856 (332 SE2d 3). It follows that the trial court did not err in granting defendant’s motion for involuntary dismissal.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

Decided September 7, 1989.

Michael H. Saul, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Robin Frazer, for appellee.


author: Carley, Chief Judge.

text:
    75392.
    THOMPSON v. CROWNOVER et al.
    (387 SE2d 53)
    Decided September 8, 1989.

      David H. Pope, for appellant.

      Richard B. Eason, Jr., Eric E. Huber, Rex T. Reeves, Jack 0. Morse, for appellees.
   Carley, Chief Judge.

In Thompson v. Crownover, 186 Ga. App. 633 (368 SE2d 170) (1988), we affirmed the trial court’s grant of summary judgment in favor of appellee-defendants. On certiorari, the Supreme Court reversed. Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660) (1989). Accordingly, the judgment of the Supreme Court is made the judgment of this Court and the judgment of the trial court is reversed.

Judgment reversed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


text:
    A89A0913.
    SMITH v. THE STATE.
    (386 SE2d 530)
   Birdsong, Judge.

Appellant, Samuel James Smith, appeals his conviction of two counts of selling cocaine and the denial of his motion for new trial.

On March 17, 1988, Agent Newton of the U. S. Army Criminal Investigation Command (hereinafter CID Agent) was introduced to appellant by a registered informant. The informant knocked on appellant’s door and appellant came outside. Appellant entered the CID Agent’s vehicle and had the agent drive him to the rear of the apartment complex where appellant lived. Appellant departed the vehicle and returned several minutes later. Appellant said that it would be about 25-30 minutes before his drug source had the drugs. After waiting the prescribed time, appellant again departed the vehicle and returned in about five minutes.

Appellant handed the CID Agent eight “rocks” of cocaine and was then given $230 by the agent. On March 22, 1988, the agent and his informant again met with appellant who entered the agent’s vehicle and the same basic sequence of events recurred culminating in the appellant’s handing the agent one “rock” of cocaine in a plastic bag and then being paid $250 by the agent. The agent testified that the actual exchange of cocaine for money occurred when appellant directly handed the cocaine to him and then was directly paid the money by the agent; the informant was used only in the initial introduction of both sales.

Appellant asserted the defense of entrapment. He testified that he smoked cocaine; basically his entire paycheck was being used to purchase cocaine; he had been selling his personal property to obtain cocaine; he was spending $40-45 a day for cocaine; and, that the informant was an old friend. Appellant further testified that the informant produced some cocaine which the men smoked; the informant had brought the CID Agent to the house with him; the CID Agent asked appellant to get some cocaine for him and offered to give appellant some of it; because he was a cocaine user the appellant accepted the agent’s offer; the agent gave him the money in advance to obtain the drugs from a suspected drug dealer whom appellant knew; appellant made no cash profit from the sale but was merely a go-between in order to obtain some of the drugs for his own use; and, these two sales were the only cocaine sales in which appellant ever was involved. Held:

1. Appellant asserts that the evidence was insufficient to support the verdict, because it was procured by means of entrapment. Specifically, appellant argues that appellant raised the entrapment defense and that the State failed to prove beyond a reasonable doubt that entrapment did not occur.

“On appeal the evidence must be viewed in the light most favorable to the verdict.” Guffey v. State, 191 Ga. App. 501 (3) (382 SE2d 202); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Issues of credibility of witnesses and weight of admitted evidence are within the province of the fact finder to resolve; “ ‘appellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.’ ” Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228).

In the case before us, the defense of entrapment was reasonably raised by the evidence, and the jury was so instructed. Moreover, appellant did not take exception to the charge to the jury, and before this court appellant concedes that “[t]he jury . . . was charged on the theory of entrapment and the [a]ppellant takes no exception to the instruction as given.”

Appellant testified in his own behalf, and his version of the meeting between himself and a man who he believed to be the informant differed markedly from the testimony of the agent. The informant did not testify. The agent testified that on the first occasion “[t]he source knocked on the [appellant’s] door and [appellant] answered the door and came outside. He entered the vehicle that I was driving ... at which time he instructed me to drive to the rear of [the apartment complex] ... at which time he got out of the vehicle.” The agent further testified that “after the first buy I let [appellant] out that night and we made arrangements to meet up again and make another purchase. There was no date or time set. ...” The agent testified that on the second drug sale occasion “the source knocked on [appellant’s] door and [appellant] said it would be a few minutes, he had to put on some clothes, at which time he got in the back seat of my vehicle.” The agent further testified that he only had to wait for appellant for “about three minutes” and then appellant came out to the vehicle.

In Bacon v. State, 188 Ga. App. 782 (1) (374 SE2d 351), “ ‘[a]ppellant testified in his own defense. Appellant’s version of the events differed from the agent’s and, as to his predisposition to commit the crime, was exculpatory. Because the confidential informant was never called as a witness for the State to rebut appellant’s testimony, he “claims that the evidence demanded a finding of entrapment. Contrary to that contention, however, the appellant’s testimony concerning his lack of predisposition hardly went uncontra-dicted. . . . The appellant’s testimony certainly raised the defense of entrapment, but it did not demand a finding of such. In this case, the issue of whether the State impermissibly encouraged the appellant to evil was properly submitted to the jury, and the evidence authorized a rational trier of fact to find beyond a reasonable doubt that the appellant had not been entrapped.” [Cits.]”’ Id.; accord Lawson v. State, 184 Ga. App. 204 (361 SE2d 210). As in Bacon and Lawson, we find that the record contains competent admitted evidence, which if believed by the jury, would disprove appellant’s claim of entrapment.

Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that the exclusion of his testimony as to what an agent of the State, the informant, had told him, on the grounds that it was hearsay, was error.

The trial transcript reveals the following colloquy among court personnel and appellant. “[APPELLANT]: Well, after we had consumed the [c]ocaine [Ronnie Crawford] told me that he had $125.00 and he asked me did I want to get an eight ball with him, which is $250.00. I told him, ‘No, I don’t want to get involved with no [c]ocaine like that.’ [PROSECUTOR]: Objection, hearsay. THE COURT: What about it? [DEFENSE COUNSEL]: I’ll move to the next question. THE COURT: What about what we’ve had so far? Do you move to strike it? [PROSECUTOR]: Yes, I move to strike it. . . . THE COURT: Sustain the objection and strike any reference to a person named Steve Crawford — is that his name? [PROSECUTOR]: According to the defendant. [APPELLANT]: Ronnie Crawford. THE COURT: Ronnie Crawford quoted by this witness. Counsel has objected and moved to strike on the basis of hearsay. I strike it from the record and you are not to give it any weight and credit. . . . [DEFENSE COUNSEL]: How did you meet Agent Newton? [APPELLANT]: Well, Ronnie Crawford had come to my house and he brought Agent Newton with him. He introduced me to Agent Newton as his brother-in-law. He said, ‘This is my brother-in-law. He wants to know — ’ [PROSECUTOR]: Your Honor, I object again to hearsay. THE COURT: Pure hearsay counsel. Sustain the objection and strike the testimony. Jury do not give it any weight and credit. [H]earsay testimony is what Ronnie Crawford said coming from this witness’ mouth. [DEFENSE COUNSEL]: Did you ever talk to Agent Newton? [APPELLANT]: Well, he told me. . . .” (Emphasis supplied.)

Decided September 8, 1989.

Peter D. Johnson, for appellant.

Sam B. Sibley, Jr., District Attorney, Michael C. Eubanks, Barbara A. Smith, Assistant District Attorneys, for appellee.

Neither during the course of this colloquy nor thereafter did appellant contest the ruling of the trial court in any manner, and to the contrary appellant acquiesced in the trial court’s ruling. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536); accord Boatright v. State, 192 Ga. App. 112 (385 SE2d 298) (1989); Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274). Accordingly, we find nothing for us to review based on the posture of the trial record regarding this particular enumeration of error.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0998.
    MATHIS v. THE STATE.
    (386 SE2d 532)
   Birdsong, Judge.

Appellant, William O’Neal Mathis, appeals the sentence arising from his conviction for rape, aggravated sodomy, kidnapping, and three counts of possession of a firearm during the commission of the above three felonies.

Nancy M. was jogging and fast-walking during her lunch hour. Appellant forced her into his car under threat of shooting her with the gun he was carrying. While appellant was driving he fondled Nancy M. with one hand and drove with the other; the gun was placed in his lap. In response to appellant’s cross-examination as to why she did not grab the gun, Nancy M. testified that she had “never seen a gun before in [her] life and [she] was scared”; that she “wouldn’t know how to shoot a gun”; and, that “[a]ll I wanted to do is not die.”

Appellant took Nancy M. to a house owned by a friend of his, where he forced her to submit to an act of oral sodomy and raped her. During a portion of the rape incident the gun was placed on the floor next to appellant. Nancy M. was also cross-examined regarding why she did not attempt to grab the gun when it was on the floor; she testified that the appellant was bigger than her, and “I never shot a gun. I wouldn’t know what to do.” Nancy M. made an in-court identification of the appellant as her assailant.

Following the incident Nancy M. was released by appellant and she entered the house of another woman seeking help. Persons who viewed her at this house and certain hospital personnel testified that she appeared to be in shock and to be greatly upset. She would not let the police come to the house, but insisted that they go to the hospital, as the appellant had threatened that either he or his partner would kill her if she called the police.

Appellant testified that Nancy M. voluntarily accepted a ride with him, she did not resist his advances and engaged in sexual intercourse with him, with apparent consent, but that no act of sodomy occurred. Held:

1. Appellant asserts that the verdicts are contrary to the weight and sufficiency of the evidence. On appeal the evidence must be viewed in the light most favorable to the verdict, and the appellant is no longer shielded by a presumption of innocence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Review of the transcript in a ligh most favorable to the jury’s verdict reveals ample evidence fro which any rational trier of fact could conclude beyond a reasonabl doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that his out-of-court statements to police were made with the manifest hope of benefit and therefore were erroneously admitted at trial as voluntarily made.

Appellant testified that the law enforcement agent had offered him a monetary benefit and had told him that it “would go easier on [his] case” if appellant assisted them in locating a person named Notae. The law enforcement officer denied such statements. The trial judge found, as to each statement in question, from a preponderance of the evidence with respect to the statement which the State intended to offer, that the defendant was advised of each of his Miranda rights before that statement was made; that he understood those rights; that he voluntarily waived them and that he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury.

“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.” Johnson v. State, 186 Ga. App. 801, 803 (368 SE2d 562); accord Snipes v. State, 188 Ga. App. 366, 368 (373 SE2d 48); Walker v. State, 186 Ga. App. 765 (2) (368 SE2d 547).

3. Appellant asserts that his character was illegally and improperly injected into evidence when the trial court allowed testimony regarding an alleged burglary to be admitted.

The record reveals the following colloquy between a State’s rebuttal witness who lived in the house where the incident occurred and court personnel. “[PROSECUTOR]: Does he [appellant] have a key? [DEFENSE COUNSEL]: Your, Honor, I object and may we approach the Bench. . . .? THE COURT: All right. . . . [DEFENSE COUNSEL]: I wish to object to the line of questioning because it leads to insinuate that my client has broke in, insinuating that he burglarized that particular house. . . . THE COURT: Objection overruled. Make the same objection on the record. (Whereupon, the Bench conference [was] concluded.) [DEFENSE COUNSEL]: Your Honor, we would like to object on the ground that the prosecutor is tending to . . . introduce [appellant’s] character into evidence, as he was breaking into this individual’s house and again the fact that it tends to go towards his character. We now move for a mistrial in that matter as well. THE COURT: Objection overruled and motion denied.”

It is well-established that if evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. Lanzo v. State, 187 Ga. App. 616 (2) (c) (371 SE2d 119), citing Worthy v. State, 180 Ga. App. 506, 508 (3) (349 SE2d 529); accord Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351). What is forbidden is the State’s introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant’s bad character. Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989) and cases cited therein.

In this instance, evidence that the door was supposed to be locked and that appellant did not have a key would tend to corroborate the testimony of the victim that appellant had “put the gun in [her] back and forced [her] up some back stairs and we went into, this looked like the door, you couldn’t open the door, we had to kind of like crawl through the side and into the back room. . . .” (Emphasis supplied.) “Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” Smith v. State, 181 Ga. App. 136 (1) (351 SE2d 530). Even “ ‘[w]here the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to determination by the jury.’ ” Wright v. State, 186 Ga. App. 231 (2) (a) (366 SE2d 834); compare Toole v. State, 146 Ga. App. 305 (8) (246 SE2d 338). As this evidence had some relevancy, we are satisfied that the trial court did not abuse its discretion in denying appellant’s objection and mistrial motion.

Moreover, we note that the first reference to the appellant’s breaking into the house was made by his defense counsel in stylizing his objection. One cannot complain of a judgment, order, or ruling that his own procedure or conduct has caused. Rush v. Southern Property Mgmt., 121 Ga. App. 360 (2) (a) (173 SE2d 744). Induced error is impermissible. Edwards v. State, 235 Ga. 603 (2) (221 SE2d 28).

4. Appellant asserts that the trial court erroneously failed to amend its charge on the issue of consent when charging the jury. Specifically, the appellant at trial took exception to the charge on consent because it failed to instruct the court that “if the State fails to prove such [lack of consent] beyond a reasonable doubt, then you should acquit the defendant. ...”

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. Johnson v. State, 187 Ga. App. 803 (3) (371 SE2d 419).

The court charged the jury that “[t]he burden ... is upon the State to prove the defendant’s guilt as charged in these indictments beyond a reasonable doubt. The burden never shifts to the defendant to prove his innocence with respect to any of these six charges.” The court also charged the jury as follows: “The defendant contends that there was no rape and that intercourse with the alleged female victim was with the consent of said female, freely and voluntarily given. I charge you further in that regard that the lack of consent on the part of the female is an essential element of the crime of rape. The burden of proof is upon the State to show a lack of consent on the part of the alleged female victim beyond a reasonable doubt. Consent on the part of the alleged female victim is fatal to a conviction for rape. ... As you have seen from these instructions they mean that with respect to each of these charges of kidnapping, rape, and aggravated sodomy, if you should find that the acts complained of were freely consented to by the alleged victim, such consent would bar a conviction for such offense. . . . The lack of consent being an essential element in each of these three charges. The burden is upon the State to prove the same beyond a reasonable doubt.” (Emphasis supplied.)

Decided September 8, 1989.

Steven A. Hathorn, for appellant.

John M. Ott, District Attorney, for appellee.

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. Ortiz v. State, 188 Ga. App. 532 (4) (374 SE2d 92). In this instance the trial court has substantially charged on the matter of which appellant complains. Id.; accord Kelly v. State, 241 Ga. 190 (4) (243 SE2d 857). In Skinner v. State, 188 Ga. App. 458 (2) (373 SE2d 271), we held that it 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.

Judgment affirmed.

Been, P. J., and Benham, J., concur.


text:
    A89A1194.
    RUSTIN v. THE STATE.
    (386 SE2d 535)
   Sognier, Judge.

Thomas Milton Rustin, Jr. was convicted of the offense of DUI and he appeals.

1. Appellant enumerates the general grounds. Construed to support the conviction, the evidence of record shows that on September 30, 1988 at approximately 6:15 p.m., in Pike County, appellant improperly pulled his car out in front of Henry Dyals’ car, causing an accident. Dyals left his car in the roadway and appellant pulled his car to the side of the road. Dyals and appellant then proceeded to stop passing motorists, asking them to get in touch with the State Patrol. Dyals testified that- during the approximately 10 or 15 minutes before the troopers arrived, he was directing traffic and appellant repeatedly got in and out of his car. Trooper David Calloway testified that when he arrived at the scene, appellant appeared unsteady, had slurred speech and an odor of alcohol on his breath. He noticed empty beer cans on the floor of the car, which appellant admitted drinking, as well as an ice chest which contained several unopened cans of beer. Trooper Edward Cunningham testified that he arrived at the scene at approximately the same time as Calloway, and that after Calloway had placed appellant in Cunningham’s patrol car, he (Cunningham) advised appellant of his rights and transported him to the Pike County Sheriff’s office. An intoximeter registered .22 grams percent alcohol in appellant’s blood.

Appellant argues that Calloway did not observe appellant driving, and thus could not say whether he was under the influence of alcohol at that time. However, it is well established that driving under the influence may be shown by circumstantial evidence. See, e.g., Jones v. State, 187 Ga. App. 132, 133 (1) (369 SE2d 509) (1988). Although appellant was not under constant scrutiny, Dyals testified that he “smelled something” on appellant’s breath at the time of the accident and that after the accident appellant “wasn’t in [his car] long enough to do much of anything.” Calloway testified that in the time between the accident and his .arrival at the scene, appellant “couldn’t drink enough to get in the condition he was in when I got there.” We find this evidence sufficient to enable a rational trier of fact to find appellant guilty of DUI. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by proceeding to trial I without having first obtained a waiver of jury trial in writing pursuant I to OCGA § 40-13-23 (a), which provides, in pertinent part, that “[n]ol court defined in this article shall have the power to dispose of traffic! misdemeanor cases as provided in this article unless the defendant! shall first waive in writing a trial by jury.” After a review of the rec-| ord and the law, we find appellant’s enumeration on this issue merito-| rious. It is undisputed that the probate court, in which appellant’s trial was held, is one “defined in [that] article.” See OCGA § 40-13-j 21. The record shows that the uniform traffic citation issued to appel-j lant charging him with the offense of DUI contains on its reverse sid^ a blank form captioned “appearance, plea of guilty and waiver,” or which, by filling in the blanks, appellant could have waived his righl to be tried by a jury. However, in this instance the form remainl blank. The record contains no written waiver of appellant’s right t<| be tried by a jury even though appellant directed that nothing b! omitted from the record on appeal. “In light of the legislature’s obvil ous intent in the enactment [to prohibit trial without first obtaininl written waiver of a jury], we find the omission of the required advice and the failure to obtain a written waiver to be harmful error requiring reversal of appellant’s conviction.” Littlejohn v. State, 165 Ga. App. 562, 564 (4) (301 SE2d 917) (1983).

Decided September 8, 1989.

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

W. Fletcher Sams, District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

3. Appellant’s novel construction of OCGA § 40-6-391 (b) concerning legal use of a drug other than alcohol is not only erroneous but irrelevant here where appellant’s conviction was based on OCGA § 40-6-391 (a) (1) (driving under the influence of alcohol). Accordingly, we find no merit in appellant’s contention that the trial court erred by denying his motion to quash the citation on that basis.

4. Appellant contends on two grounds that he was improperly sentenced as a DUI second offender pursuant to OCGA § 40-6-391 (c) (2). Appellant first argues the sentence was improper because no certified copy of the first conviction was produced, the State having introduced only a certified copy of his driving record indicating the prior DUI conviction. However, appellant did not make this objection below, and this court will not consider questions raised for the first time on appeal. Moore v. State, 181 Ga. App. 548, 549 (2) (352 SE2d 821) (1987).

Appellant also argues that he was improperly sentenced as a repeat offender because his prior conviction was void on the basis that in that proceeding, as in this one, he had not waived in writing his right to a jury trial. However, pretermitting the question of whether appellant’s prior conviction was void, appellant’s sentence was within the range permitted by OCGA § 40-6-391 (c) (1) for first offenders and thus, admission of the prior conviction was harmless. See generally Moore, supra at 549 (1); Stoe v. State, 187 Ga. App. 171, 172 (1) (369 SE2d 793) (1988).

5. We have carefully reviewed appellant’s remaining enumerations of error and have found them to be either meritless or unlikely to recur at retrial.

Judgment reversed and case remanded.

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