text:
    A89A0491, A89A0739.
    THE STATE v. EVANS; and vice versa.
    (384 SE2d 404)
   Birdsong, Judge.

The State appeals the trial court’s order granting appellee/cross-appellant Keith Evans’ motion in autrefois convict as to Counts 1, 2, 3, and 4 of a certain Union County indictment, No. 88-UR-90. Appel-lee/cross-appellant filed a cross-appeal to the trial court’s order denying cross-appellant’s motion to suppress.

In April 1987, Keith Evans entered a plea of guilty to criminal attempt to commit interstate interference with custody (OCGA § 16-5-45 (c)), contributing to the delinquency of a minor (OCGA § 16-12-1), and interstate interference with custody (OCGA § 16-5-45 (c)). These offenses all stem from conduct by Keith Evans in regard to a teenage male, M. H. The interstate interference with custody charge specifically was averred to have occurred on September 13, 1986. The other two charges specifically were averred to have occurred on October 7, 1986.

In October 1988, based on what the State in essence claims was newly discovered information, Keith Evans was indicted as follows: (a) Count 1, sexual exploitation of children, specifically M. H., on September 30, 1986 (OCGA § 16-12-100); (b) Count 2, sodomy, specifically with M. H., on September 30, 1986 (OCGA § 16-6-2 (a)); (c) Count 3, aggravated child molestation, specifically by performing sodomy on M. H., on August 31, 1984 (OCGA § 16-6-4 (c)); (d) Count 4, distributing obscene materials, on September 30, 1986 (OCGA § 16-12-80); and, (e) three other counts not here relevant.

I. A89A0491. The State v. Evans

The State asserts that the trial court erred in granting appellee Evans’ motion in autrefois convict and thereby dismissing Counts 1, 2, 3, and 4 of Indictment No. 88-UR-90.

The State first contends that appellee Evans did not adequately raise a Fifth Amendment double jeopardy claim, as in his motion in autrefois convict appellee relied solely upon his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. Suffice it to observe that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Brown v. Ohio, 432 U. S. 161, 164 (97 SC 2221, 53 LE2d 187); North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656).

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” “The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after . . . conviction. And it protects against multiple punishments for the same offense.’ ” Brown, supra at 165. “The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U. S. 299, 304 [52 SC 180, 76 LE 306] . . . : ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . (Emphasis supplied.) Brown, supra at 166. If two or more offenses are the same under this test, “they necessarily will be the same for purposes of barring successive prosecutions.” Id. But, “‘“[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” ’ ” (Emphasis supplied.) Pryor v. State, 238 Ga. 698, 700 (234 SE2d 918).

Before applying the Blockburger test to the charges involved in this case, we must first factually determine whether the charges arise from the same act or transaction. “The question as to whether the transaction^ were] the same as a matter of fact can hardly be said to admit of much elucidation. It is true that this question may arise in the class of cases involving an offense which in its very definition and essential nature is continuous in character. In dealing with the question as to whether the offense be of that character, it is sometimes necessary to distinguish between one continuous, uninterrupted single act and a series of distinct and separate acts. [Cits.] It is also true that the question of identity in fact may be involved in that class of cases where the State by the generality of the indictment may not be confined to proof of any specific date or transaction within the period of limitation, with the result that a prosecution for a particular crime will usually operate as a bar for any such offense committed within the period of limitation previously to the indictment.” (Emphasis supplied.) Harris v. State, 193 Ga. 109, 117 (17 SE2d 573). In this instance, examination of all charges in toto, together with the available evidence pertaining thereto, reveals that each of these statutory offenses was committed as a distinct and separate criminal act, and not as part and parcel of one continuous, uninterrupted criminal transaction. Further, the original accusation and the subsequent indictment both averred that each transaction occurred on a specific date, and thus while some of the general averment language contained within the charges of the original accusation may have been broad enough, when viewed in isolation, to encompass certain of the averments contained within the charges of the later indictment, when the charges are read as a whole such clearly is not the case. Compare Harris, supra at 117, and cases therein cited with the charges averring specific dates in both the accusation and indictment in this case.

Assuming arguendo that the offenses charged in the original accusation and the pertinent charges contained in the subsequent indictment had arisen as part of the same act or transaction, we further find that each of the statutory offenses originally charged requires proof of a fact which the other subsequently charged statutory offenses do not require. We further find that the facts of Brown v. Ohio, supra, clearly are distinguishable from the facts in this case. Moreover, assuming arguendo that the offenses in Charges 1, 2, and 3 of the subsequent indictment had stood in the relationship of “greater and lesser included” offenses to one or more of the offenses charged in the original accusation, this case nevertheless would pose an exception to Brown. An exception to Brown exists, so that prosecution for a lesser offense does not prevent subsequent prosecution for a greater offense, whenever “the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” See Brown, supra at 169, n. 7, and cases cited therein; Garrett v. United States, 471 U. S. 773, 796-797 (105 SC 2407, 85 LE2d 764) (O’Connor, J., concurring). We find no evidence that the State failed to exercise such due diligence in this case notwithstanding its apparent inability to obtain initially all the facts relevant to appellee Evans’ separate acts of criminal misconduct with M. H.

Appellee next asserts that these charges violate the State’s statutory prohibitions against multiple prosecution and conviction. OCGA §§ 16-1-6; 16-1-7; 16-1-8. The State asserts appellee has waived these issues. A properly crafted plea of autrefois acquit or convict is sufficient to raise a double jeopardy issue “whenever the proof shows the second case to be the same transaction with the first.” (Emphasis deleted.) Day v. State, 163 Ga. App. 839, 840 (296 SE2d 145). Appellee Evans’ written motion in autrefois convict, however, did not raise any issue regarding the violation of these statutory provisions. “If not made in writing at the proper time [upon arraignment and before pleading on the merits], a plea of former jeopardy is waived.” McCutchen v. State, 177 Ga. App. 719, 722 (4) (341 SE2d 260); Holmes v. State, 120 Ga. App. 281 (1) (170 SE2d 312); see Hooks v. State, 138 Ga. App. 539 (3) (226 SE2d 765). However, this court further held in McClure v. State, 179 Ga. App. 245 (1) (345 SE2d 922), that while “the procedural bar against double jeopardy can, at least in some circumstances, be waived by failure to assert it in writing prior to trial . . . the applicability of the substantive bar may not even become apparent to an accused or his counsel until after the state has presented its case. . . . [M]ore recent decisions make it clear that the failure to file a written plea of former jeopardy prior to trial will not defeat an accused’s right to be free of multiple convictions for the criminal act.” Applying the precedent of McClure, we find that appellee Evans has waived any appellate claim of procedural double jeopardy, but has not waived any issue of substantive double jeopardy arising from the application of pertinent statutory law to the facts of this case.

In the seminal case of State v. Estevez, 232 Ga. 316 (206 SE2d 475), the Supreme Court held that to apply the expanded statutory proscriptions against double jeopardy, “we must recognize that the proscription has two aspects. First, there are limitations upon multiple prosecutions for crimes arising from the same criminal conduct. Second, there are limitations upon multiple convictions or punishments that may be imposed for such crimes. The former is generally referred to as the procedural aspect of double jeopardy and the latter as the substantive aspect.” Id. at 317. The rules barring multiple prosecutions differ from those barring multiple convictions. “First, there are limitations upon multiple prosecutions arising from the same criminal conduct. Code Ann. § 26-506 [OCGA § 16-1-7] entitled, ‘Multiple prosecutions for same conduct’ requires all crimes arising from the same conduct to be prosecuted in a ‘single prosecution’ provided they are in the same jurisdiction and are known to the prosecutor unless the court in the interest of justice orders separate trials. Code Ann. § 26-507 [OCGA § 16-1-8] sets out in detail when a second prosecution is barred. These are matters of procedure.” Estevez, supra at 318-319. As above indicated, these procedural double jeopardy issues have been waived. Moreover, we apply OCGA § 16-1-7 (b) “ ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” Baker v. State, 257 Ga. 567, 569 (361 SE2d 808). The evidence in its current posture establishes that the prosecuting officer lacked knowledge of the existence of the subsequent crimes, when he prosecuted appellee Evans on the counts contained in the original accusation.

“The second policy expressed in the . . . Criminal Code limits the convictions or punishments that may be imposed for crimes arising from the same criminal conduct. This is generally referred to as the substantive aspect of the double jeopardy principle. ...” Es-tevez, supra at 319. This appellate issue has not been waived. In regard to this substantive prohibition, the Criminal Code “provides that the accused may be prosecuted for but may not be convicted of more than one crime if: ‘One crime is included in the other.’ Code Ann. § 26-506 (a) (1) [OCGA § 16-1-7 (a) (1)]. A crime is included in the other when ‘(a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.’ Code Ann. § 26-505 (a) [OCGA § 16-1-6 (1)]. Or ‘(b) It differs from the crime charged only in the respect that a less serious injury or risk of injury to tbe same person property, or public interest or a lesser kind of culpability suffices te establish its commission.’ Code Ann. § 26-505 (b) [OCGA § 16-1-1 (2)]. . . . These sections establish alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime. ... In addition the Criminal Code provides that an accused may not be convicted of more than one crime if: ‘The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.’ Code Ann. § 26-506 (a) (2) [OCGA § 16-1-7 (a) (2)].” (Emphasis supplied.) Estevez, supra at 319-320.

As above discussed, each of the original and subsequent statutory crimes charged contains at least one different element of proof; that is, each pertinent crime charged requires proof of an additional fact which the other pertinent charged crimes do not. See, e.g., Isbell v. State, 190 Ga. App. 245 (378 SE2d 529). Nor can any pertinent crime charge be established by proving the culpable mental state required to prove another pertinent crime charged. Viewing each charge in toto and on its face, we find that each crime charged prohibits a distinct type of criminal conduct different in both gravamen and societal norm from the other charges. Thus, we are satisfied that each pertinent crime charged prohibits a different type of criminal conduct than does any other pertinent charged crime; that is, no pertinent crime charged against appellee Evans differs from another pertinent crime charged only in that one is defined to prohibit generally a designated kind of criminal conduct while the other pertinent charge merely prohibits a specific instance of such conduct. Finally, we conclude that no pertinent crime charged differs from another pertinent charged crime only in the respect that a less serious injury or risk of injury, as enunciated in OCGA § 16-1-6 (2), suffices to establish its commission. Compare standards in OCGA §§ 16-1-6; 16-1-7 (a).

Accordingly, we find that the trial court erred in granting appel-lee Evans’ motion in autrefois convict and thereby dismissing Counts 1, 2, 3, and 4 of Indictment No. 88-UR-90.

II. A89A0739. Evans v. The State

Cross-appellant Keith Evans broadly asserts that the trial court erred in denying his motion to suppress certain evidence obtained as a result of an illegal search and seizure.

Although the cross-appellant asserted numerous grounds in his suppression motion, the only ground which he adequately advances on appeal is that probable cause was lacking for issuance of the warrant due to “staleness.” In particular, on appeal, cross-appellant does not argue or support with citations of authority, either that the magistrate was not neutral and detached or that the warrant was invalid on its face. All grounds not presented in cross-appellant’s brief “by argument or citation of authority” have been abandoned and present no issue for consideration on appeal. Court of Appeals Rule 15 (c); Adams v. State, 187 Ga. App. 340 (3) (370 SE2d 197).

It is well recognized that time is an element of probable cause, but “the precise date of an occurrence is not essential. Rather, the inquiry is as to whether [under the totality of the circumstances] the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant.” State v. Luck, 252 Ga. 347 (312 SE2d 791); Mitchell v. State, 239 Ga. 456, 458 (238 SE2d 100); Thomas v. State, 183 Ga. App. 819 (1) (360 SE2d 75). Pretermitting the issue of staleness, however, is the question whether the police relied in good faith on the warrant issued by the magistrate.

In United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677), the United States Supreme Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the State’s use of evidence obtained by police officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. Id.; see generally Daniel, Ga. Criminal Trial Practice § 2-25. The officer must have been acting “with objective good faith.” Id. at 920. Good faith inquiry “is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances . . . may be considered.” Id. at 922, n. 23. “ [I]t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued. . . . Suppression . . . remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. [Cit.] The exception . . . will also not apply in cases where the issuing magistrate wholly abandoned his judicial role ... in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 922-923; United States v. Accardo, 749 F2d 1477, 1480 and n. 4 (11th Cir. 1985). However, thf existence of technical defects in the search warrant issued by th( magistrate or judge does not automatically preclude the existence o: objective good faith on the part of the police in relying on the validitj of the warrant. Massachusetts v. Sheppard, 468 U. S. 981 (104 SC 3424, 82 LE2d 737).

We must now apply the above principles to the totality of th< circumstances existing in this case. In this regard, we note that th< affidavit was not a so-called “bare bones” warrant. The affidavit provided the names of the persons who had supplied information to the police. These persons included the district attorney, Dr. Bob Frady and the alleged victim, M. H. The affidavit reflected that the appellant previously had pled guilty to certain offenses, involving M. H., including an offense involving appellant’s encouragement of M. H. to “engage in homosexual activity.” Thus, the original charges, pertaining to the same victim, obviously appeared to be meritorious. The affidavit revealed that M. H. asserted that a video tape had been made of appellant’s acts of sodomy with him, and that certain nude photographs of M. H. had been taken. The affidavit was further factually detailed. The affidavit summarized affiant’s interview with Dr. Frady, a “licensed psychologist,” listing Dr. Frady’s special qualifications in dealing with “sexual offenders,” and concluding that “[a]fter describing the above relationship between [appellant, another adult male, and M. H.] it is [Dr. Frady’s] expert opinion, based on his experience and knowledge, that it is reasonable to expect and very likely that Mr. Evans and Mr. Roberts would still have possession of the sexually oriented tapes” approximately 20 months later.

At the suppression hearing, the GBI agent who obtained the warrant and was present at its execution testified that he contacted Dr. Frady after being advised that the latter “had quite a bit of knowledge” pertaining to the conduct of sexual offenders; that Dr. Frady led the agent “to believe that he had a great [amount of] knowledge of this type of activity and how people conducted themselves”; that the district attorney accompanied the agent to see Dr. Frady; and, that in addition to expressing his opinion concerning the continued existence of the tapes, Dr. Frady also discussed his background and experience in detail. The search warrant was issued and executed the same day.

In State v. Stringer, 258 Ga. 605, 606 (372 SE2d 426), the Supreme Court in obiter dictum observed that “[t]he good-faith exception to the exclusionary rule occurs when an officer makes a judgmental error concerning the existence of facts sufficient to constitute probable cause if the officer has forthrightly set out the facts in an affidavit for a search warrant.” (Emphasis supplied.) We agree with this general observation and note that there exists no evidence in this record that the affidavit was made other than “forthrightly.”

Based on the totality of the circumstances, we find that the law enforcement officials acted in objective good faith, within the meaning of Leon, in executing the search warrant and that any deficiency in the warrant or its affidavit would not result in the invocation of the exclusionary rule. Accordingly, we find that the trial court did not err in denying cross-appellant’s suppression motion.

Judgment affirmed in Case No. A89A0739 and reversed in Case No. A89A0491.

Decided June 26, 1989

Rehearing denied July 11, 1989.

Michael H. Crawford, District Attorney, for appellant.

Claude S. Beck, for appellee.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A0915.
    THE STATE v. HAMMETT.
    (384 SE2d 220)
   Sognier, Judge.

The State Court of Gwinnett County sustained Catherine Cole Hammett’s general demurrer to the charged offense of homicide by vehicle in the second degree, OCGA § 40-6-393 (b), and the State appeals.

Appellee lost control of her car and collided with a vehicle in which Sarah Ferguson was a passenger. Ferguson was thirty-five weeks pregnant at the time. Ferguson was transported to a hospital and gave birth, through an emergency Caesarean section, to Isaac Ferguson Tolmach. The child lived approximately eleven hours before dying from the injuries he had received in the accident, primarily internal hemorrhaging and a fractured right clavicle.

OCGA § 40-6-393 (b) provides: “Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than [certain code sections inapplicable here] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death . . . .” The tria] court, relying upon this court’s opinion in Billingsley v. State, 183 Ga. App. 850 (360 SE2d 451) (1987), ruled that because Isaac Tolmach was a fetus, and thus not a “person” within the ambit oJ OCGA § 40-6-393 (b) at the time of the accident, the State failed tc charge appellee with an offense cognizable under the laws of this State. We disagree and reverse.

Billingsley, supra, involved a conviction for vehicular homicide where the victim was an unborn fetus. This court noted that unde: the common law “an unborn fetus clearly was not considered a ‘per son’ or ‘human being’ and that the killing of an unborn child conse quently was not regarded as a homicide at common law. ([Cit.])” Id at 851-852. Construing narrowly the plain language of the statute ai required in interpreting the criminal code, this court held that “th< legislature did not intend for the term ‘person’ as used in the vehicu lar homicide statute to encompass unborn children.” (Emphasis sup plied.) Id. at 852. Billingsley is thus distinguishable on its facts from the case sub judice where the victim was without question a legal “person” at the time he died from injuries received in the automobile collision.

Decided June 26, 1989

Rehearing denied July 11, 1989.

Gerald N. Blaney, Solicitor, David M. Fuller, Assistant Solicitor, for appellant.

Under Georgia law, a person who injures a pregnant woman so that her fetus, though born alive, subsequently dies by reason of the injuries inflicted on it while still in its mother’s uterus, can be convicted for the felony murder of the newborn child. Ranger v. State, 249 Ga. 315, 316-317 (1) (290 SE2d 63) (1982). This is consistent with the common law status of an unborn child: “ Tf a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.’ (3 Coke, Institutes 58 (1648).)” State v. Dickinson, 275 NE2d 599, 601 (SC Ohio 1971). It is thus apparent that it is not the victim’s status at the time the injuries are inflicted that determines the nature of the crime (murder or vehicular homicide, as opposed to feticide, see OCGA § 16-5-80), but the victim’s status at the time of death which is the determinative factor. Accordingly, we cannot agree with the trial court that Isaac Tolmach’s status as a fetus at the time the injuries were incurred provides a legal basis for granting appellee’s general demurrer where the evidence clearly establishes the victim was a “person” under OCGA § 40-6-393 (b) at the time of his death. Nothing in OCGA § 40-6-393 (b) limits consideration of the status of the victim to the moment at which the injury is inflicted, since the statute explicitly states that second degree vehicular homicide is committed when a person “causes the death of another person.” (Emphasis supplied.) As noted by the New Jersey court in State v. Anderson, 343 A2d 505, 508 (NJ Super. 1975), “[ojbviously, there are many instances where an adult victim has died some considerable time after the infliction of the fatal blow or wound. If the victim recovers and survives, whether by reason of medical or surgical treatment, or otherwise, there is no homicide; yet, if he dies from such wounds, it is murder.” Since Isaac Tolmach was a person at the time of his death and there is evidence that ap-pellee caused the injuries that led to his death, the trial court erred by granting appellee’s general demurrer to the offense charged.

Judgment reversed.

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

Walter M. Britt, for appellee.


text:
    A89A0978.
    RIVAIS v. THE STATE.
    (384 SE2d 200)
   Sognier, Judge.

Verna J. Rivals was convicted of pimping and keeping a place of prostitution, and she filed this appeal.

1. In two enumerations of error appellant contends the trial court erred by denying her motion for mistrial.

The record reveals that during Detective C. A. Wood’s trial testimony regarding appellant’s arrest and the subsequent consensual search of her apartment, the prosecutor asked, “which items did you personally seize [during the search]?” Wood responded that he “seized cocaine,” .at which point appellant’s counsel interrupted and moved for a mistrial. The trial judge denied the motion and gave extensive curative instructions to the jury, and appellant’s counsel then renewed the mistrial motion.

Appellant contends this testimony was deliberately elicited by the State to place her character into evidence, and that its admission was so prejudicial as to require the grant of a mistrial. We do not agree. While evidence of a defendant’s prior crimes or other bad acts ordinarily is inadmissible, Dawson v. State, 120 Ga. App. 242, 243 (170 SE2d 45) (1969), and “[w]here evidence of that kind is erroneously admitted, it is naturally prejudicial to the defendant and requires the grant of a new trial unless cured by sufficient corrective instructions, [cit.]” id., in the case at bar, given the trial judge’s careful and thorough curative instructions, “[w]e do not find that the officer’s improper comments in the presence of the jury were so prejudicial that the curative instructions by the court were ineffective.’ Spraggins v. State, 240 Ga. 759, 762 (2) (243 SE2d 20) (1978). Further, unlike Dawson, supra, cited by appellant, here there is no evi dence that the prosecutor solicited the challenged testimony o: sought to do indirectly what could not be done directly. Accordingly we find the trial court did not abuse its discretion by refusing to gran* the motion for mistrial. See Spraggins, supra at 762 (2).

2. Appellant also contends the trial court erroneously admittecB into evidence State’s Exhibits 5-6 and 11-18, which appellant arguefl were too remote in time and location to be relevant. H

“When facts are such that the jury, if permitted to hear then™ may or may not make an inference pertinent to the issue, according tfl the view which they may take of them in connection with the othefl facts in evidence, they are such that the jury ought to be permitted tfl hear them. [Cits.] . . . Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue on the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. [Cit.]” Chambers v. State, 154 Ga. App. 620, 627 (4) (269 SE2d 42) (1980). Exhibits 5 and 6, sexual paraphernalia found in a hall closet of the apartment, and Exhibits 11-17, sexually explicit magazines and flyers (several of which contained pictures of and solicitations from appellant) and a letter written in response to one of appellant’s magazine ads, were relevant to show appellant’s predisposition to commit the charged offenses of pimping, prostitution, and keeping a place of prostitution, as well as to show the control of the premises required under OCGA § 16-6-10. Exhibit 18, a copy of a telephone book page showing a listing for appellant at the apartment, also was relevant to the issue of control. We find no error in the admission of these exhibits.

Decided June 20, 1989

Pimping, etc. Cobb State Court. Before Judge McDuff.

William V. Hall, Jr., for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, J. William Morse, Assistant Solicitors, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1046.
    SINGLETON v. EASTERN CARRIERS, INC. et al.
    (384 SE2d 202)
   Banke, Presiding Judge.

As appellee Cantrell was operating a tractor-trailer owned by his employer, appellee Eastern Carriers, Inc., the vehicle collided with an automobile being driven by appellant Singleton. Singleton brought the present action against Cantrell, Eastern Carriers, and Eastern Carriers’ insurer, appellee United States Fire Insurance Company, to recover for injuries which he allegedly sustained as a result of this collision. All three appellees joined in filing a single answer. Along with this answer, Singleton was served with a request for discovery, captioned as follows: “Defendant Eastern Carriers, Inc.’s Interrogatories and a Request for Production of Documents.”

Having received no response to these discovery requests, appel-lees’ counsel directed a letter to appellant’s counsel 37 days after they were served requesting compliance with them. When that letter, a subsequent phone call, and yet another written demand for compliance all failed to elicit any response, appellees’ counsel filed a motion to compel, captioned as follows: “Defendant Eastern Carriers, Inc.’s Motion to Compel Plaintiff’s Answers to Discovery and Motion for Sanctions.” The appellant similarly filed no response to this motion. However approximately two months later he did finally submit responses to the discovery requests. Following a subsequent hearing on Eastern Carriers’ motion for sanctions, the trial court determined that the appellant’s failure to file timely responses to the discovery requests was wilful and accordingly dismissed the complaint with prejudice as to all three defendants. We granted the appellant’s application for an interlocutory appeal to determine whether such dismissal was authorized with respect to appellees Cantrell and United States Fire Insurance Company, which did not join with Eastern Carriers either in submitting the discovery requests or in seeking sanctions for the appellant’s failure to respond to them. Held:

1. The appellees’ motion to dismiss the appeal based on the appellant’s failure to file a timely enumeration of errors and brief is denied. See Court of Appeals Rule 14 (a), as amended effective March 1, 1989.

2. “[T]here is no authority for a co-defendant to become the beneficiary of a dismissal under [OCGA § 9-11-37 (d)] merely because of a failure of the plaintiff to comply with the other co-defendant’s discovery actions.” Johnson v. Martin, 137 Ga. App. 312, 314 (223 SE2d 465) (1976). Since the requested discovery was sought only by Eastern Carriers, we are constrained to hold that the trial court erred in ordering dismissal as to the other two defendants, appellees Cantrell and United States Fire Insurance Company.

3. The appellant contends that he was not subject to sanctions under OCGA § 9-11-37 (d) because Eastern Carriers’ motion for such sanctions was not entered on the court docket until after his responses were served. This contention is completely meritless. The evidence of record reveals without dispute that the motion for sanctions was both filed with the trial court and mailed to appellant’s counsel on September 1, 1988, almost two months before the appellant served his responses. The failure of the clerk’s office to enter the motion on the court docket until the date of the hearing certainly does not excuse the appellant’s failure to file timely responses to the discovery requests. “Once a motion for sanctions has been filed, their imposition cannot be precluded by a belated response made by the opposite party. [Cit.]” Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 578 (359 SE2d 441) (1987). (Emphasis supplied.) As the appellant totally failed either to respond to Eastern Carriers’ interrogatories and re- fl quests for production of documents or to seek a protective order pur- H suant to OCGA § 9-11-26 (c), that portion of the trial court’s orderB dismissing with prejudice the complaint against Eastern Carriers isfl affirmed. See Mayer v. Interstate Fire Ins. Co., 243 Ga. 436 (2) (254 SE2d 825) (1979).

Decided June 20, 1989

Rehearing denied July 11, 1989.

David U. Crosby, Jason M. Braswell, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Julia B. Anderson, Freeman & Hawkins, Michael J. Goldman, for appellees.

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.


text:
    A89A1092.
    DEADWILEY v. THE STATE.
    (384 SE2d 221)
   Banke, Presiding Judge.

The appellant, charged in the Superior Court of Greene County, Georgia, with two counts of violating the Georgia Controlled Substances Act, moved for discharge and acquittal based on the state’s failure to try him within two terms after he had filed a demand for trial pursuant to OCGA § 17-7-170. He brings this appeal from the denial of that motion. See generally Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

The terms of the Superior Court of Greene County, which is part of the Ocmulgee Judicial Circuit (see OCGA § 15-6-1 (28)), commence on the fourth Monday in January, April, August, and November of each year. Ga. L. 1988, p. 551, § 1. The present indictment was returned during the August term of court. The appellant filed his demand for trial on October 25, 1988, which was likewise during the August term. He filed his motion for discharge and acquittal on the first day of the January 1989 term. Held:

It was incumbent upon the appellant to show by competent evidence both that a jury was impaneled and qualified to try him at the term when his demand was filed and that there was a jury impaneled and qualified to try him during the next succeeding term. See State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978). While the evidence at the hearing on the motion for discharge and acquittal established that a jury had been impaneled at some time during the August term prior to the filing of the appellant’s demand, it is apparent from a supplemental record requested by this court that no jury was impaneled either at the time the demand was made or at any subsequent time during the term. “[I]n computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted.” Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989), citing Waller v. State, 251 Ga. 124, 126 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984). See also State v. McDonald, supra, 242 Ga. 487; Kersey v. State, 191 Ga. App. 847 (_ SE2d _) (1989). We accordingly hold that the state was not required to try the appellant in the present case prior to the conclusion of the November term of court, with the result that his motion for discharge and acquittal was properly denied.

Decided June 28, 1989

Rehearing denied July 11, 1989

H. Samuel Atkins, Jr., for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Al Martinez, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1218.
    SCOTT v. McLAUGHLIN et al.
    (384 SE2d 212)
   Sognier, Judge.

Jim Lee Scott filed this direct appeal from the order of the Fulton County Probate Court awarding attorney fees to Michael McLaughlin and others in a case arising from an untimely caveat filed by Scott to the probate of the will of Nellie Gilbert Sprayberry, to whose estate Scott’s fiancee’s minor daughter was a possible heir.

1. As appellant acknowledges in his brief, OCGA § 5-6-35 (a) (10) provides that “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” must be taken by application for leave to appeal. Because appellant failed to follow the correct procedure, this court is without jurisdiction to consider the appeal and it is accordingly dismissed. Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987). (Compare Haggard v. Bd. of Regents of the Univ. System, 257 Ga. 524, 526-527 (4) (a) (360 SE2d 566) (1987), where the award of attorney fees was appealed as part of the underlying judgment.)

2. Appellees have filed a motion for the imposition of a 10 percent penalty for frivolous appeal pursuant to OCGA § 5-6-6. We are constrained to deny the motion, however, as the statute authorizes the penalty only when the judgment is affirmed, not when the appeal is dismissed. Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (2) (360 SE2d 656) (1987).

Appeal dismissed.

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

Decided June 22, 1989

Rehearing denied July 11, 1989

Jim Lee Scott, pro se.

Michael E. McLaughlin, pro se.


author: Birdsong, Judge.

text:
    A89A0221.
    LUCAS v. THE STATE.
    (384 SE2d 438)
   Birdsong, Judge.

This appeal concerns the appellant’s convictions for speeding and driving under the influence of alcohol. There is no dispute that on the night in question the appellant was stopped by two police officers who were operating radar and detected him operating his pickup truck at 57 miles per hour in a 40 mile per hour zone. At trial however, there was a dispute about the events which occurred after the appellant was stopped by the police.

The two officers testified that the appellant was staggering, smelled of alcohol, slurred his words, and spoke in an unusually slow manner. As a consequence, both officers testified that in their opinions the appellant was under the influence of alcohol. Further, based upon their observation of the appellant and the fact that he had operated his truck at an excessive speed, they also testified that in their opinion the appellant’s driving was impaired.

The officers also testified that the appellant refused to perform a field sobriety test. Both officers also testified that the appellant refused to take a breath test.

The appellant disputed the officers’ version of the events. He testified that he had drunk only three twelve-ounce bottles of beer over a two-hour period while he was eating dinner. He denied that he was staggering or slurring his words, and he further testified that he did not refuse to take the field sobriety test. Instead, he asserted that the police did not ask him to take such a test. He did, however, acknowledge that he had refused to take the breath test, and he explained his refusal by stating that he believed the test to be inaccurate. He further explained that this was because of two prior incidents when he was arrested for DUI and he believed that the breath test results were higher than they should have been. (The State introduced two DUI convictions which showed that the appellant had been convicted of two earlier DUI offenses in which he had tested .19 and .16 on the breath test.) He explained that he also based his refusal on some articles, which he was unable to identify, which supported his belief. The appellant also maintained that he would have willingly taken the breath test, but for his belief that the test was inaccurate and the advice of an attorney not to do so. The appellant called in his defense his employer and his girl friend. The employer testified he was with the appellant that night for dinner and he thought appellant had only two or three beers. He also testified that when he saw the appellant leave it did not appear that he was under the influence. Moreover, he testified the appellant normally had a deliberate manner of speaking. The girl friend testified that she saw the appellant driving shortly before he was stopped by the police and his driving appeared to be normal. She also testified that she was at the scene of the apprehension and she did not hear the police ask the appellant to take a field sobriety test.

The appellant also called an expert witness who testified about deficiencies in the breath test used in this State. The purpose of this testimony was to show the appellant’s state of mind when he refused to take the breath test. Upon the State’s objection, the testimony was excluded on relevancy grounds, although some of the intended testimony was received later in response to questions by the State.

The appellant enumerates as error the sustaining of the State’s objections which resulted in exclusion of defense evidence, and contends the evidence is insufficient to support the verdict. Held:

1. The first enumeration of error asserts that the evidence is insufficient to support the verdict. The appellant advances several arguments why his version of the events and his witnesses’ versions should have been believed rather than the State’s. That is not within our province. Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury. “‘[AJppellate 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.’ Jamison v. State, 162 Ga. App. 635 (292 SE2d 515) (1982).” Banks v. State, 185 Ga. App. 851, 853 (366 SE2d 228). Further, on appeal we are required to view the evidence in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849).

Reviewing the transcript in a light most favorable to the 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); Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153). Accordingly, the first I enumeration is without merit. I

2. Appellant contends in his second enumeration of error thatH the trial judge improperly excluded testimony on the State’s objection I that the question had been asked and answered. The objection wasH based upon the following testimony. The police officer testified that he gave a passenger an alcosensor test, and then was asked if he gave the appellant that test and the officer testified that he did not recall whether he had or not. Then appellant’s counsel asked: “You mean you tested the passenger, but you didn’t offer a test to the person you’re arresting for D.U.I.?” The State objected because the question had been previously asked and answered. Appellant contends now that the refusal of the trial court to allow this line of questioning denied him the right to a thorough and sifting cross-examination. We disagree. “ ‘(T)he scope of cross-examination is not unlimited. That extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretion is abused. [Cits.]’ ” Claypool v. State, 188 Ga. App. 642, 644 (373 SE2d 765). “[W]here a question has been asked of and answered by a witness, the trial court does not unduly limit the right to a thorough cross-examination by disallowing its repetition. [Cits.]” Fitzgerald v. State, 166 Ga. App. 307, 310 (304 SE2d 114). We do not find that the trial judge abused his discretion by sustaining the objection to this question. Sanders v. State, 181 Ga. App. 117, 121-122 (351 SE2d 666).

3. Appellant’s third enumeration of error also concerns the admissibility of evidence and the scope of the trial court’s discretion. The appellant wanted to support the appellant’s explanation for refusing to take the breath test with testimony from his expert to the effect that not all people tested accurately. The appellant argues that this would show his state of mind at the time. The State’s objection to this testimony by the expert on grounds of relevancy was sustained by the trial judge. Relying on Scott Housing Systems v. Hickox, 174 Ga. App. 23 (329 SE2d 154), the appellant argues that this testimony was relevant because it tended to logically prove a material fact in issue. We do not agree with this contention.

Review of the transcript shows that the expert planned to give a detailed explanation of his conclusion that the test is inaccurate. We do not see the relevancy of the testimony. The appellant had already testified that he refused to take the test because of his personal experience in prior DUIs and because of some articles he had read but could not identify. The appellant did not identify any readings he had done of this expert’s work or otherwise even indicate that he was familiar with the expert’s theories. Consequently, the expert’s theory was not probative of the appellant’s state of mind at the time he refused to take the test. Appellant was not charged with refusing a breath test. The appellant was charged with speeding and with driving under the influence. He makes no contention that his state of mind was relevant to the speeding count, and we do not find that his state of mind was relevant to the DUI count. “ ‘ “(E)vidence is relevant which logically tends to prove or 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.” Harris v. State, 183 Ga. App. 219, 221 (358 SE2d 634). Since there is no indication that appellant in any way relied upon the expert when refusing to take the test, or that his motive for not taking the test logically tended to prove, disprove, or throw light on any issue in the case, this testimony would not have been relevant. More importantly, this decision rests within the discretion of the trial court and would be reversed only if the discretion was abused. Butler v. State, 173 Ga. App. 168 (325 SE2d 835). Under the circumstances we do not find that the trial court abused its discretion. Palmer v. State, 186 Ga. App. 892, 899 (369 SE2d 38).

Decided July 11, 1989.

Edea M. Caldwell, for appellant.

Keith Martin, Solicitor, for appellee.

4. Appellant’s fourth enumeration of error also asserts that the trial court improperly excluded testimony on relevancy grounds. The first question asked whether it would be possible for one to test .045 or .05 on a blood test yet test higher on a breath test, and whether the expert would recommend that any one take the breath test as it now stands in Georgia. For the reasons discussed in Division 3 above, neither question was relevant, and the trial judge did not err by sustaining the objections to the questions. It was well within the discretion of the trial court to exclude this testimony. This enumeration of error is without merit.

Judgment affirmed.

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


text:
    A89A0393.
    GROGAN v. THE STATE.
    (384 SE2d 441)
   Birdsong, Judge.

Michael Anthony Grogan was tried under an indictment charging him with felony theft by taking, in that between March 18, 1987 and| June 8, 1987, “being in lawful possession of [$8,170] in money, of value exceeding $500.00 and the property of Michael Boyle and G.| Robert Wood, did unlawfully appropriate said property with inten tion of depriving said [owners] of said property.” The jury convicted) him of a misdemeanor.

The charge arose out of Grogan’s management of a group of con dominiums owned by Boyle and others, it being alleged that durin: the three months stated, he collected but failed to turn over to th< owners certain rent moneys. He defended by saying that he did several hundred dollars worth of maintenance and renovation of the condominium units, which were in disrepair; that he diligently attracted several new tenants for empty units; and that at least one rent check paid to him “bounced,” while other tenants wrote themselves receipts and claimed to have paid Grogan in cash; and that some tenants made partial payments, declining to pay entirely because of flooding or disrepair.

Grogan had not previously been charged with any crime. Prior to trial, the State served notice upon appellant’s counsel that it intended to use in evidence a “similar transaction,” which the parties describe as follows: Appellant states in brief that “Laura and Charles Alphabet knew Grogan from Grogan’s high school days. In 1984 Grogan proposed an investment plan that involved borrowing money on the Alphabets’ home. Grogan was given $46,000 to invest. The money came from a mortgage obtained on the Alphabets” home. No money was ever repaid to the Alphabets. The Alphabets got an eviction notice from the loan company. The Alphabets’ attorney later made arrangements for them to regain their home. No charges were even brought against Grogan.” The State agreed with this summarization, but added: “When the Alphabets attempted to confront [a]ppellant about his ‘investment’ of their money, he was very difficult to find and would not return their calls. When they did contact [a]ppellant, he would assure them everything was all right. When the Alphabets were forced to move from their home, [a]ppellant allowed them to move into ‘his’ home on Cherry Lane. In fact, [ajppellant had lost the Cherry Lane house two years before the Alphabets moved in. The Alphabets now are rebuying their home from the finance company.”

Appellant urges error upon the admission of this evidence as a “similar transaction.” Particularly, he complains of the manner in which it was done, in that the trial court declined to hear the State’s motion to introduce a “similar transaction,” until the end of the State’s case-in-chief. Held:

The trial court erred in refusing to hear the motion to present evidence of a “similar transaction” until after the State had presented its case-in-chief on the indicted charges.

Rule 31.2 of the Uniform Rules of Superior Courts (see 253 Ga. 853-854) provides as to all motions and notices named in Rule 31.1 (which specifically includes motions or notices involving the introduction of evidence of a “similar transaction”), that “[ajll such motions . . . and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.'” (Emphasis supplied.) Superior Court Rule 31.3 (B) provides as to a Notice of Intent to Present Evidence of Similar Transactions: . . The judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request. ...” (Emphasis supplied.)

The Superior Court Rules on this subject are not crystal clear and require some interpretation. Although they give some latitude of discretion in the trial court’s determination as to what time and date it may set a hearing on the prosecution’s notice of intent to present evidence of a similar transaction, and the rules give no per se right to an evidentiary hearing, nevertheless, a hearing on the matter is mandated. Hall v. State, 181 Ga. App. 92 (351 SE2d 236). It is difficult to contemplate what would ordinarily be heard at such a hearing, if not the similarity of the other “transaction,” which is by nature an evi-dentiary matter. In Hall, supra, this question was not reached because the molestation of the victim in that case was, as it turned out, the same type of act and done in the same manner as the similar transaction (molestation) which was introduced.

Rule 31.2 qualifies the discretion given to the trial court as to the time and date of the hearing, by providing: “Generally, such [motions and notices] will be heard at or after the time of arraignment and prior to . . . trial.” If this direction were not intended to have some governing effect, it would not have been given. Obviously, therefore, what the State claims is the trial court’s total and ungovernable discretion is neither total nor ungovernable. The rule just quoted also affects the application of Rule 31.3, which reiterates that the hearing shall be held “at such time as may be appropriate.” Thus, the Rules construed in harmony contemplate that “generally” the mandated hearing will appropriately be held before trial, for obvious reasons of fairness and economy. We conclude any review of the trial court’s exercise of discretion must be analyzed in that light and with that object in view, and we have done so in other cases.

We have found substantial compliance with the rules where “[a] hearing was held just prior to trial and the district attorney stated in his place what he expected the evidence to show happened in the instant case, and what he expected the evidence would show in the two prior incidents.” (Emphasis supplied.) Houston v. State, 187 Ga. App. 335, 337 (2) (370 SE2d 178).

In another case we reiterated that “ ‘ “the apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.” ’ ” (Emphasis supplied.) Thompson v. State, 186 Ga. App. 421, 422 (2) (367 SE2d 586).

In Flournoy v. State, 186 Ga. App. 774 (368 SE2d 538), where we held the evidence of similar transaction “certainly was admissible” based on its actual similarity (sales of cocaine to certain persons) to the crime charged (sale of cocaine to the same persons in almost identical circumstances), the appellant complained that the trial court failed to determine its admissibility “before the evidence was presented to the jury,” contrary to the requirements of Superior Court Rule 31.3. But the record showed that “fbjefore any evidence was presented, however, the trial court did approve this evidence of similar transactions ‘contingent upon the proper foundation being laid. . . Id., p. 775. We found this procedure “sufficiently complied” with the rule.

In Nolan v. State, 183 Ga. App. 52, 53 (2) (357 SE2d 873), the appellant contended the similar transaction hearing “was not in compliance with Rule 31.2 because it was not held prior to the time the case was scheduled for trial.” After citing the rule we stated: “We find nothing in this Rule which requires the judge to hold a hearing prior to the date scheduled for trial, particularly in view of the provision that any hearing will be held at a time, date and place set by the judge. The hearing here was held prior to any presentation of evidence, and outside the presence of the jury. Under such circumstances, we find no error in holding the hearing on the date of trial.” (Emphasis supplied.)

Thus, we have conceded that in view of the discretion given in the rule, substantial compliance does not necessitate that the hearing be held “prior to the time at which such case is scheduled for trial” merely because Rule 31.2 says this “generally . . . will” be the procedure (see Houston, supra), but we have also stated that the apparent purpose of the rule is directed to the end of “ ‘ “[resolving] questions as to the admissibility of such evidence . . . before trial” ’ ” (Thompson, supra); and, we have consistently found sufficient compliance with the rule in circumstances where we could make the express distinguishing finding that the similar transaction hearing was held prior to any presentation of evidence. See Flournoy, supra, and Nolan, supra.

In this case we can find no persuasive reason why the trial court should not have held this hearing before trial; or why this appellant was required, as if it were a matter of inconsequence, to go through more than half the trial, and what he hoped was the entire presentation of the State’s evidence, without knowing whether he must also defend a perhaps irrelevant matter of such prejudicial nature as this so-called “similar transaction.” In effect, when the State “rested its case” in the trial of the indicted charges, its case was not “rested” at all, for the defendant then faced an entirely separate trial on another matter. Moreover, the mechanism of presenting the matter to the jury after the State’s case-in-chief, and after a hearing outside their presence, accomplished nothing if not to unduly emphasize the evidence of the “similar transaction.”

If the “similar transaction” here had indeed been so similar that the defendant must have reasonably anticipated its presentation (cf. Hall, supra, and Flournoy, supra), and because of a real similarity could not be overly prejudiced by it in the first place, there might be no reason to reverse this conviction, given the degree of modified discretion stated in Superior Court Rules 31.2 and 31.3. But we cannot find these two transactions to be so similar. The State concedes that one prong of the test of admissibility of such other evidence is based upon a sufficient similarity, correlation, or connection to the crime being tried so that proof of the prior crime, incident or transaction tends to prove an element of the crime being tried. Brock v. State, 254 Ga. 682 (2) (333 SE2d 593); Saylors v. State, 251 Ga. 735 (7) (309 SE2d 796); Davis v. State, 249 Ga. 309 (290 SE2d 273). However, we fail completely to see what “element” of the indicted crimes is proved by the rather loose allegations that defendant invested money for Mr. and Mrs. Alphabet, and that when the money was lost, he invited them to stay at his home, which home he no longer owned. If there is any similarity in this evidence, it does not outweigh its inherent prejudicial effect upon the proof of the crimes charged here.

The State suggests the Alphabets’ difficulty of getting in touch with Grogan after the loss of their investment is a similar element, but this does not much prove guilt in that investment transaction, and certainly not so much as to justify using it to prove guilt of this crime. The fact that money was involved in both transactions is a thread too ordinary and thus too slender to hold them together, and certainly is not strong enough to justify the risk of certain prejudice; so too is an alleged “failure to account,” which is in any event entirely a conclusory matter.

The State insists the transactions need not be “identical,” but that rather “the question is one of relevance.” Particularly, we fail to see any relevance in the circumstance that after he allegedly bilked the Alphabets out of their money so that they lost their home, he invited them to stay at his house. As to this singular circumstance, we fail to see any relevance to this case in the fact that he no longer owned his own house. The State’s strained attempts to paint these circumstances as relevant proof of bad motive or scheme, prove the tenuousness of any relationship to this case. The burden placed upon the defendant to disprove any such relationship was enormous. In short, we fail to see enough relevance in that investment matter with Mr. and Mrs. Alphabet to justify forcing the appellant to endure most of this complex theft-by-taking trial before he could learn how much more complex it would get, or how many more alleged “improprieties” he would have to defend before his ability to raise a reasonable doubt as to this offense was fatally diminished.

There appearing to be no solid reason to refuse to hear this matter prior to trial, or at the very least give fair notice before trial to the defendant that the evidence would be admitted (as in Flournoy, supra), and because the other transaction was not so clearly similar (c.f. Hall, supra) as to justify keeping the defendant in suspense by holding off on the matter, we find the failure to hear it and decide its admissibility before trial to be an abuse of discretion under the complex facts of this case, and we reverse the conviction on that basis. We also find the admission of the evidence was unwarranted as it was not sufficiently similar to justify the prejudice it inevitably caused.

Decided July 11, 1989.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, William C. Akins, Joseph J. Drolet, Assistant District Attorneys, for appellee.

We can have no doubt these errors were harmful, for the jury did return a guilty verdict for the crime indicted, but only for a misdemeanor, or the theft of less than $500, which is a finding not consistent with the evidence showing guilt of theft of a much larger sum, if any. In a case of less complex proof, the result might be different, but in this case the trial court’s failure to hold the hearing on the matter prior to trial not only placed the defendant at enormous disadvantage, but also resulted in the erroneous admission of evidence which was not so substantially similar as to prove elements of this crime. That is, it inherently prejudiced appellant’s ability to defend against crimes charged while producing nothing of overwhelming relevance.

Judgment reversed.

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


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0396.
    HUTTON v. THE STATE.
    (384 SE2d 446)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of child molestation and aggravated child molestation. Appellant appeals from the judgments of conviction and sentences that were entered by the trial court on the guilty verdicts.

1. Appellant enumerates as error the trial court’s finding that the four-year-old victim was competent to testify.

Prior to its 1989 amendment, Ga. L. 1989 (Act 674), former OCGA § 24-9-5 provided that “[a] child is competent to testify if the court is satisfied that the child knows and appreciates the fact that ‘as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation, he is subject to be punished by the court.’ [Cits.]” Grier v. State, 257 Ga. 539 (1) (361 SE2d 379) (1987). There was no requirement that the child “ ‘be able to define the meaning of an oath, [or] . . . understand the process under which the oath is administered.’ ” Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981). See also Westbrook v. State, 186 Ga. App. 493 (1) (368 SE2d 131) (1988). The four-year-old victim in the present case expressed his understanding of the difference between the truth and a lie and of the importance of telling the truth. He also expressed a fear of punishment if he did not tell the truth, and stated that he would tell the truth. Although there may have been some inconsistency in the child’s responses, “[a]ny apparently inconsistent testimony presented by the [child] did not render [him] incompetent to testify as a matter of law, but is a matter for consideration by the trial court in making its determination of competency and by the jury in determining the credibility of the witnesses. [Cits.]” Thomas v. State, 168 Ga. App. 587, 588 (3) (309 SE2d 881) (1983). We find no abuse of the trial court’s discretion in its determination that the child was competent to testify. See generally Burgess v. State, 189 Ga. App. 790, 792 (3) (377 SE2d 543) (1989).

2. Several witnesses for the State testified as to statements allegedly made to them by the child. The admission of these hearsay statements is enumerated as error.

Appellant first urges that the hearsay statements were not admissible pursuant to OCGA § 24-3-16 because the child was himself incompetent to testify. At trial, however there was no objection to the admission of the hearsay statements based upon the child’s incompetency. Appellant may not raise this ground for the first time on appeal. See Thurman v. State, 255 Ga. 286, 288 (1) (336 SE2d 746) (1985). In any event, we have already held in Division 1 that the trial court did not abuse its discretion in finding the child competent.

Appellant further urges that, contrary to OCGA § 24-3-16, the hearsay statements lacked sufficient indicia of reliability. The record shows, however, that as to each of the State witnesses who related statements made to them by the child, the trial court conducted a hearing outside the presence of the jury and determined that the circumstances provided sufficient indicia of reliability. We find no error in the trial court’s determinations.

3. Appellant enumerates the general grounds.

As we have held, the child was competent to testify and the hearsay statements were admissible. Furthermore, the State’s witnesses testified as to their own observations of the child’s physical and emotional state and behavior. The evidence was sufficient to enable any rational trior of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant enumerates as error the denial of his special demurrer to the indictment. The contention is that the indictment neither alleged the dates of the offenses nor identified the place they were committed.

The indictment alleged that the offenses had occurred in Gwin-nett County “between September 1, 1986, and May 21, 1987, the exact dates being unknown to the Grand Jurors. ...” This was a sufficient allegation as to dates. “ ‘Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. [Cit.] An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial. ([Cit.])’ [Cits.] The defendant in this case . . . offered no alibi evidence, nor did he at any time request a continuance on the ground of surprise, nor did he otherwise express a need for additional time to rebut any evidence presented by the state. Consequently, it does not appear that the failure to allege the specific date of the offense in the indictment materially affected his ability to present a defense. . . .” Massengale v. State, 164 Ga. App. 57, 58 (1) (296 SE2d 371) (1982). The allegations of the indictment were also sufficient as to place. Unless the character of the place is an essential element of the offense, “ ‘ “[a]n indictment which charges the crime to have been committed . . . in a particular county is sufficiently certain as to . . . place.” [Cits.]’ [Cits.]” Flanders v. State, 97 Ga. App. 779, 780 (1) (104 SE2d 538) (1958).

5. The ineffectiveness of trial counsel is raised for the first time in the context of this appeal, and, consequently, the trial court has never had the opportunity to pass on this issue. Pursuant to the mandate of our Supreme Court, this Court is without power or authority to engage in an interpretation of this enumeration of error or otherwise to address its merits. Because “appellate counsel was retained for the first time during the pendency of the appeal,” we are constrained to “remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel.” Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). As the Supreme Court has recently held, “[i]n Smith, we established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.” Lloyd v. State, 258 Ga. 645 (fn. 1) (373 SE2d 1) (1988). See also Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987).

Judgment affirmed and case remanded with direction.

McMur-ray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Deen, P. J., and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 through 4 and in the judgment affirming the conviction. However, I respectfully dissent with respect to Division 5.

Appellant enumerates that he was denied due process because trial counsel was ineffective. The sole and entire ground for this enumeration is that because counsel “allowed the introduction of the tremendous amounts of inadmissible evidence,” counsel was ineffective under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The argument in the brief is contained in a single sentence to this effect.

“The” evidence referred to is obviously evidence enumerated as inadmissible in the preceding portions of the brief. Appellant does not expand this latter enumeration to identify additional evidence, or to cover other evidence by omitting the word “the.” It is clear that what he quantifies as “tremendous amounts” refers to the instances complained of in earlier enumeration. If this were not so, counsel on appeal would automatically be remiss in failing to enumerate these instances as error. The only reasonable reading of the basis upon which the claim of ineffective assistance of trial counsel is made is the failure to object to the evidence now challenged.

Since those evidentiary issues have been decided adversely to defendant in the opinion, see Division 2, there is no further consideration which must be undertaken by the trial judge related to the assistance of counsel. The failure to raise objections as noted in Division 2 would not be of such magnitude in this case to elevate counsel’s representation to constitutional infirmity. Therefore, the claim of ineffective counsel fails and, even though this is originally raised here by counsel who first appeared after the filing of the notice of appeal, no useful purpose would be served by remand for hearing on the issue by the trial court. Compare Green v. State, 187 Ga. App. 373, 375 (5) (370 SE2d 348) (1988).

It does not appear that the Supreme Court was faced with a claim in this posture in Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987), or Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989). When Lloyd was appealed after remand, the Court noted that remand was a “practice,” instituted to avoid later habeas corpus on the same issue. Thus it is not a rule of law and, under the facts in this case, remand is counter to the objective of the practice, which is to resolve the issue “promptly” and thus reach finality at the earliest practicable moment. Considering the ground of ineffective assistance raised here, a habeas corpus petition asserting it would be frivolous.

Decided July 11, 1989.

Larry L. Duttweiler, for appellant.

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

Remand should be principled and necessary, not automatic, delaying, and wasteful of judicial and legal resources.

I am authorized to state that Presiding Judge Deen joins in this opinion.


author: Benham, Judge.

text:
    A89A0520.
    CINCINNATI INSURANCE COMPANY et al. v. PERIMETER TRACTOR & TRAILER REPAIR, INC. et al.
    (384 SE2d 449)
   Benham, Judge.

Daniel and Teresa Card filed a wrongful death action against ap-pellee Perimeter Tractor & Trailer Repair, Inc. (Perimeter) and its employee, appellee Bussey, after a tractor-trailer truck which was owned by appellee Classic Motor Lines, Inc., and driven by Bussey, and which was the subject of a policy of insurance issued by appellee United States Fire Insurance Company (USF), struck a pickup truck driven by Mrs. Card, resulting in the death of the Cards’ minor son. Perimeter asked appellee American States Insurance Company (American) to provide a defense, which request American rejected on the ground that it had not issued a policy of insurance to Perimeter. USF also refused to provide a defense, asserting that the factual scenario had activated an exclusion contained in its policy of insurance covering the tractor-trailer truck. Appellant Cincinnati Insurance Company, the errors and omissions carrier for appellant Jim Anderson & Company (Anderson), Perimeter’s insurance agent, filed this action for declaratory relief. In separate orders, the trial court granted USF’s and American’s motions for summary judgment and denied that of appellants. This appeal followed.

1. At the time of the collision, Bussey was driving the tractor-trailer rig owned by Classic Motor Lines to Perimeter’s place of business for “touch-up” work on the paint job Perimeter had done on the vehicle. Perimeter offered “pick up” and “delivery” of the vehicle as part of its services. Classic Motor Lines had no ownership interest in Perimeter. The USF policy insuring the vehicle stated that anyone using the covered vehicle owned by Classic Motor Lines with Classic’s permission was an “insured” under the policy, except “someone using a covered auto while he or she is working in a business of selling, servicing, repairing or parking autos unless that business is owned by [Classic Motor Lines].” USF contended and the trial court agreed that servicing and repairing the vehicle included Perimeter’s business of painting the vehicle. Based on that conclusion and the fact that Bussey was acting within the scope of his employment with Perimeter at the time of the collision, the trial court applied the policy exclusion and granted summary judgment to USF.

Appellants maintain that the trial court was precluded from concluding that Perimeter was a repair service facility because USF, by failing to respond to appellants’ statement of material facts as to which appellants contend there was no material dispute, had admitted that Perimeter was not in the business of servicing or repairing vehicles. Appellants aptly cite this court’s decision in Booker v. Eddins, 183 Ga. App. 449, 452 (359 SE2d 211) (1987), in support of their position that the failure to respond to a party’s statement of material facts as to which there is no dispute results in the admission of those facts. However, the case cited in Booker in support of that proposition relied on Rule 91.72 of the Local Court Rules for the United States District Court for the Northern District of Georgia, a rule that is not applicable to the state courts and which has no counterpart in the Civil Practice Act or the Uniform Rules for the Superior Courts. OCGA § 9-11-56 does not require any adverse party to respond to a motion for summary judgment, and neither it nor Rule 6.5 of the Uniform Rules sanctions the failure to respond with the admission of facts as presented by the movant. Compare OCGA § 9-11-36 (a) (2), which calls for the deemed admission of facts contained in a request for admissions should the respondent not answer the request. Since the statement in Booker is an aberration in the development of Georgia law and is premised on a federal court local rule not applicable to our state courts, it is hereby overruled. USF’s failure to respond to appellants’ statement of material facts as to which there was no dispute did not cause those facts to be deemed admitted. Waits v. Makowski, 191 Ga. App. 794 (_SE2d_) (1989). See also SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94 (3) (366 SE2d 410) (1988).

The exclusion before us “focuses on the person in whose charge the automobile is at collision-time. [Cits.]” State Farm &c. Ins. Co. v. U.S.F.&G., 190 Ga. App. 220 (2) (378 SE2d 400) (1989). The question then is whether Bussey, the Perimeter employee driving the truck at the time of the collision, was driving the truck while working in aj business of servicing or repairing vehicles. He was driving the truck! within the scope of his employment since he was driving it to Perime-I ter in order that paint work could be done, and Perimeter included! pick up and delivery of the truck as part of its painting services. Therefore, Bussey was driving the truck while working in a business. We must next ask whether that business was servicing or repairing vehicles. The trial court ruled that it was; appellants maintain that painting vehicles does not constitute servicing or repairing them. Since the term “repairing” in the exclusion provision “reasonably can be construed to include the services which were being performed on the insured [vehicle], namely [painting],” the exclusion is applicable. Metropolitan Property &c. Ins. Co. v. Mr. Pride of Atlanta, 258 Ga. 770 (374 SE2d 82) (1988). Appellants’ argument that such a ruling contravenes public policy is without merit since the Supreme Court, in Metropolitan, recognized the viability in Georgia of the “automobile business” exclusion. The trial court did not err in granting summary judgment to USF.

2. We now turn to Perimeter’s claim of entitlement to insurance coverage under a binder issued by American States. It is undisputed that American, through Anderson, issued to Perimeter two binders on a “garagekeepers legal liability” policy, one effective January 14, 1986, and expiring February 14, 1986, and the other effective March 14, 1986, and expiring April 14, 1986. Unbeknownst to Perimeter, American sent a letter to Anderson on January 30, 1986, declining to issue the policy. The fatal collision for which Perimeter seeks coverage occurred on September 8, 1986.

Citing State Farm &c. Ins. Co. v. Collins, 75 Ga. App. 335 (4) (43 SE2d 277) (1947), appellants contend that Perimeter was covered by an American policy since Perimeter never received notice from the insurer of its refusal to issue insurance or of its decision to cancel coverage that had been bound. The trial court concluded that the binders had expired according to their own terms, as well as having expired as a matter of law 90 days after their effective dates (OCGA § 33-24-33 (b), (c)), and that the statutory requirement of notice to the insured (OCGA § 33-24-44) was not applicable to expired binders. See Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277 (326 SE2d 7) (1985). We are in accord with the trial court’s ruling. See Marchel v. Ga. Mut. Ins. Co., 188 Ga. App. 604 (1) (373 SE2d 787) (1988). We are, however, also in agreement with appellants that this court’s holding in State Farm v. Collins, supra, is in conflict with the more recent case law cited above. Therefore, we overrule State Farm v. Collins to the extent it can be read to hold that notice of an insurer’s declination to issue a policy after a binder has been issued by one acting as an agent of the insurance company is not effective until the insured is given notice thereof.

Judgments affirmed.

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

Decided July 11, 1989.

Saveli & Williams, William S. Goodman, Charles M. Dalziel, Jr., for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Julia B. Anderson, Norton, Pennington & Goetz, Charles M. Goetz, Jr., Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, Freeman & Hawkins, William H. Major, Vicki A. Hirsch, Arnall & Stephens, H. P. Arnall, for ap-pellees.


text:
    A89A0545.
    SMITH v. THE STATE.
    (384 SE2d 451)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of criminal damage to property, kidnapping, and possession of a firearm by a convicted felon. Pursuant to the grant of leave to file an out-of-time appeal, appellant appeals from the judgments of conviction and sentences that were entered on the jury’s guilty verdicts.

1. According to the allegations of that count of the indictment wherein possession of a firearm by a convicted felon was charged, appellant’s prior felony conviction was for voluntary manslaughter. In support of this allegation, the State offered a certified copy of a two-count indictment which showed that appellant had previously been charged with malice murder and with aggravated assault. The face of this indictment further reflected that appellant had entered a guilty plea to voluntary manslaughter as a lesser included offense of the murder charge and that the aggravated assault charge had been dead docketed. In addition, the State offered a certified copy of appellant’s sentence which also showed that he had been charged with the crimes of murder and aggravated assault and that, as to the murder charge he had entered a guilty plea to the lesser included offense of voluntary manslaughter. Over appellant’s objection, the indictment and sentence were admitted into evidence and he enumerates this eviden-tiary ruling as error.

A prior felony conviction is an essential element of OCGA § 16-11-131 and evidence of appellant’s prior felony conviction was clearly admissible. See State v. Santerfeit, 163 Ga. App. 627 (295 SE2d 756) (1982). The State’s evidence proving appellant’s prior conviction die contain references not only to voluntary manslaughter, as alleged ir the indictment, but also to charges of murder and aggravated assault However, as in Biggers v. State, 162 Ga. App. 163, 165 (2) (290 SE2c 159) (1982), appellant’s prior conviction for voluntary manslaughte] was “inextricably intertwined” with the charges of murder and aggra vated assault because appellant’s voluntary manslaughter conviction had resulted from an apparent plea bargain to a two-count indictment charging him with murder and aggravated assault. “The evidence showed [appellant’s] conviction of [voluntary manslaughter, which was] the crime alleged in the indictment; that it [also] showed [that the initial charges were either reduced or dead docketed] was no more prejudicial in our view.” Biggers v. State, supra at 165-166 (2). Accordingly, there was no error in admitting the evidence.

2. Appellant enumerates as error the denial of his right to effective assistance of trial counsel.

“It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.” Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). Appellant did not raise the ineffectiveness issue when he originally sought an out-of-time appeal nor was the issue later raised in the trial court before the present appeal was brought by appellant’s new counsel. This is understandable since, in seeking an out-of-time appeal, a defendant ostensibly is seeking only permission to file a direct appeal to an appellate court and not any form of post-conviction relief from the lower court itself. Nevertheless, our Supreme Court has declined to address the merits of an ineffectiveness claim where the issue was raised neither in the defendant’s original request for an out-of-time appeal nor in the trial court after the request had been granted. Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989). Accordingly, pursuant to the authority of Bell v. State, supra, we are constrained to hold that appellant has waived the right to raise the ineffectiveness issue in the context of the present appeal.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but believe it necessary to point out with respect to Division 2 that this is not an appeal in which the trial court granted leave to file a late appeal and new counsel had no opportunity to raise the issue below.

This out-of-time appeal was the relief sought in and granted by a habeas corpus court based on a petition filed on the prisoner’s behalf by new counsel. Such is reflected in the order of the habeas court which was transmitted to the criminal trial court. The ineffectiveness issue could have been raised in the habeas corpus petition brought by new counsel.

Applying the principle which has repeatedly guided the decisions of the Georgia Supreme Court in this area and which is quoted in the majority opinion, “the earliest practicable moment” in this case was the habeas corpus proceeding. See for example McDuffie v. Jones, 248 Ga. 544, 550 (4) (283 SE2d 601) (1981). Not having been raised there, the issue was waived and remand for a third trip to the trial court is not warranted.

Decided July 11, 1989.

Glenn B. Icard, Jr., for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.


text:
    A89A1179, A89A1180.
    EKSTEDT v. CHARTER MEDICAL CORPORATION; and vice versa.
    (384 SE2d 276)
   Sognier, Judge.

Richard C. Ekstedt brought suit against Charter Medical Corporation, Inc. (CMC) to recover damages resulting from the confiscation of his passport in Saudi Arabia for a period of seven months, claiming it was caused by CMC’s fraudulent misrepresentations to him regarding the propriety of obtaining a duplicate passport to enter Saudi Arabia. The trial court granted CMC’s motion for summary judgment, and Ekstedt appeals. CMC conditions its cross-appeal of the trial court’s failure to consider other grounds for granting summary judgment in its favor upon this court’s reversal of the judgment below.

1. In the main appeal, Ekstedt contends the trial court erred by granting summary judgment in favor of CMC because a question of fact remains whether any alleged misrepresentations by CMC were the proximate cause of the passport confiscation. We note that although Ekstedt’s complaint alleged several causes of action, he abandoned all but his cause of action for misrepresentation pursuant to OCGA § 51-6-2 before the trial court, and consequently we review the grant of summary judgment based only upon one viable cause of action.

An action for misrepresentation requires proof of five elements: “ ‘(1) [t]hat the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.’ [Cit.]” Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (1) (270 SE2d 249) (1980). The record reveals that Ekstedt admitted at deposition that he did not know why his passport was confiscated, that what Ekstedt called “evidence” to support his statement that CMC’s actions were the cause of his passport confiscation consisted of mere conclusions on his part, and that many possible reasons existed for the confiscation other than the duplicate passport, including but not limited to mistaken identity, the mistaken suspicion of the Saudis that Ekstedt was a spy, and an incident which had caused Ekstedt’s expulsion from the country on a previous occasion. Although Ekstedt contends that CMC’s pleadings and interrogatory answers constituted an admission that its representations were the proximate cause of the confiscation, the undisputed evidence of record established that no causal relationship could be shown between CMC’s alleged misrepresentations and the passport confiscation.

Therefore, because Ekstedt failed to rebut CMC’s showing that no proximate cause existed, we find no error in the trial court’s grant of summary judgment to CMC based on its finding that CMC had pierced the allegations of Ekstedt’s complaint by showing that the essential element of proximate cause was lacking between its actions and Ekstedt’s detention in Saudi Arabia. See Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983).

Further, the record shows that at least two other elements necessary to sustain the cause of action were also lacking. First, Ekstedt acknowledged at deposition that CMC did not make the alleged misrepresentations with the intent of deceiving Ekstedt. Second, Ekstedt would not be entitled to rely on the alleged misrepresentations without exercising due diligence to ascertain their basis in truth, because he was knowledgeable about the dangers involved. See generally Brown v. Rowe, 178 Ga. App. 575, 577 (2) (344 SE2d 245) (1986). As a judgment right for any reason must be affirmed, see Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 443 (4) (373 SE2d 217) (1988), we find no error in the trial court’s grant of summary judgment in favor of CMC.

2. Ekstedt also contends the trial court erred by ruling that his recollections of statements made to him by interpretérs at the time of his interrogation in Saudi Arabia, proffered in opposition to CMC’s motion for summary judgment, were hearsay and thus not admissible. It is not necessary to address the factual accuracy of appellant’s argument that the interpreter was the agent of CMC, making his statements admissible as an exception to the hearsay rule, since this argument was not raised below, see Chafin v. Wesley Homes, 186 Ga. App. 403, 405 (367 SE2d 236) (1988), and is not shown by the record. “When there is nothing in the record to support the contention of error, there is nothing presented to this court for review. [Cit.]” Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750-751 (371 SE2d 231) (1988).

Decided July 11, 1989.

Frederick M. Scherma, for appellant.

King & Spalding, William E. Hoffmann, Jr., Diane M. Janulis, for appellee.

3. CMC’s cross-appeal is rendered moot by our affirmance of the trial court’s grant of summary judgment in its favor in the main appeal.

Judgment affirmed in Case No. A89A1179; appeal dismissed in Case No. A89A1180.

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


text:
    A89A1254.
    GARMON v. THE STATE.
    (384 SE2d 278)
   Banke, Presiding Judge.

The appellant was convicted of burglary and criminal attempt to commit child molestation. On appeal, he contends that he was entitled to a directed verdict of acquittal on both charges.

The victim, who was 12 years old at the time of the incident, testified that she awoke in the middle of the night to find the appellant, completely undressed, sitting next to her on her bed. She stated that she persuaded the appellant she had to use the bathroom, whereupon he moved aside to allow her to leave but remained seated on the bed with one hand “covering” his genitals. After the appellant was apprehended, he stated that he had entered the home believing that pornographic movies were being filmed in the house, that an orgy was in progress, and that “everybody was upstairs screwing and that’s what I came here for.” Held:

The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the “essential elements of the crime beyond a reasonable doubt.” Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981). The offense of child molestation is committed when a person does “any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4. See McLamb v. State, 176 Ga. App. 727 (2) (337 SE2d 360) (1985). A person commits criminal attempt when, with the intent to commit a specific crime, “he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. See Adams v. State, 178 Ga. App. 261 (2) (342 SE2d 747) (1986).

Decided July 11, 1989.

Stanley Wade Robbins, for appellant.

C. Andrew Fuller, District Attorney, for appellee.

Based on the undisputed evidence that the appellant entered the victim’s house with the intent to engage in sexual activity and thereupon sat nude on her bed while she was in it, we hold that a rational trier of fact could have concluded beyond a reasonable doubt that he was guilty of criminal attempt to commit molestation. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We accordingly hold that the trial court did not err in refusing to direct a verdict of acquittal either on that, charge or on the burglary charge. See generally OCGA § 16-7-1 (a).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A0509.
    CAPITOL FISH COMPANY v. TANNER.
    (384 SE2d 394)
   Birdsong, Judge.

This discretionary appeal was granted to determine whether the employer, Capitol Fish Company d/b/a Capitol Foods of Augusta, Inc. (Capitol), is immune to tort liability, by being in the status of an “employer” bound to provide workers’ compensation benefits for the deceased helper for one of Capitol’s drivers.

Taken in the light most favorable to the appellee plaintiff, who filed this wrongful death suit and is respondent in Capitol’s motion for summary judgment, the material facts are these: the deceased was hired and employed as helper by Capitol’s employee truck driver. The truck driver paid the deceased with funds provided by the appellant. (It is conceded that Capitol gave the driver an amount of money each day. Capitol says this was to reimburse the driver for hiring a helper. But we are construing the evidence in favor of the plaintiff. Plaintiff takes the position that since the driver was not required to hire a helper and could pocket the money if he wished, this money was not a reimbursement for or intended for the hiring of a helper.) The deceased received no employee benefits from Capitol, and no income tax or FICA or other tax was withheld. In short, to paraphrase the plaintiff’s words, Capitol “did not know the deceased was alive” until after he had been killed.

Now, says the plaintiff, the employer Capitol should be estopped from claiming tort immunity in such a case as this, for the employer has had all the advantages of ignoring the employee while he (theoretically) was employed by it. Thus persuaded, the trial court denied the employer’s motion for summary judgment denying tort immunity. Held:

1. The appellee plaintiff suggests this case, as equity, lies in the jurisdiction of the Supreme Court. However, the posing of an equitable defense in response to a motion for summary judgment in a case in this court’s jurisdiction, clearly does not make this a case in equity. See Georgia Constitution, Art. VI, Sec. VI, Par. III; Rogers v. Miller Peanut Co., 199 Ga. 835 (35 SE2d 469); Equitable &c. Society v. Bischoff, 179 Ga. 255 (175 SE 560).

2. The trial court erred in denying Capitol’s motion for summary judgment seeking immunity from liability in tort. This case is controlled by American Mut. Liability Ins. Co. v. Harris, 61 Ga. App. 319 (6 SE2d 168), where the material facts are very similar. The matter is also conclusively controlled by legislative decree. OCGA § 34-9-1 (3) provides: “ ‘Employer’ shall include . . . any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits.” (Emphasis supplied.) The plaintiff evidently does not dispute that Capitol provided and stands ready to provide workers’ compensation benefits for the deceased.

Further, and in any case, according to OCGA § 34-9-8, Capitol is deemed the statutory employer of the deceased, liable by law to pay workers’ compensation benefits. Wright Assoc. v. Rieder, 247 Ga. 496, 499 (277 SE2d 41). We shall not attempt to improve on Wright’s clear explanation of the beneficent public policy underlying this statutory scheme, except to say the obvious, which is that the object of the rule is to provide a remedy for the greater number of eligible employees although it deprives some of a remedy in tort. See also Haygood v. Home Transp. Co., 149 Ga. App. 229 (253 SE2d 805).

The plaintiff is not in error to say it appears the employer has all the benefits of ignoring the deceased and providing him no employee benefits while he was alive, and now being able to take advantage of employer status to avoid tort liability. But this appearance is slightly deceptive, for the fact is that even if it appears that the employer was “ ‘ “not . . . willing, at [its] own risk and expense to have such a [helper] employed,” ’ ” (emphasis deleted) (see American Mut. Liability Ins. Co. v. Harris, supra at 321), thus denying the deceased certain employee benefits by “ignoring” him while he was alive, the employer by the law stated above is not permitted to ignore him in death.

This policy objective is better than used to be the law, when the employer bore no responsibility at all except in tort if the deceased’s representative could bear the burden of proving actual fault and liability. The fact that the plaintiff might have been able to bear that burden and receive more compensation in tort is a circumstance not relevant to the beneficent public policy requiring Capitol to provide workers’ compensation benefits for him as its employee by statute.

Decided June 6, 1989

Rehearing denied July 12, 1989

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Donald F. Daugherty, for appellant.

Glenville Haldi, for appellee.

Judgment reversed.

Benham, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

A portion of appellee’s argument and thrust, to the effect that estoppel is an issue in the case, is: “Archimedes said that he could move the world if he could choose where to place the lever . . . Capitol Foods has made no attempt to rebut or refute our contention and evidence of estoppel. Instead, they have simply ignored it and adopted the ostrich defense in addition to their attempted use of the Archimedean Lever. However, Archimedes’ principle of buoyancy won’t help them here because their case won’t float.” Appellant, denying that equitable estoppel is applicable, seeks to parry this thrust by ardently articulating and asserting: “Archimedes’ principle, the physical law of buoyancy, discovered in the Third Century B.C., remains viable. Buoyancy is the theory of what keeps a matter afloat. This case will not float and has no buoyancy. The reasons for the holes in this hull have been outlined earlier.”

Were it not for the case of American Mut. Liability Ins. Co. v. Harris, 61 Ga. App. 319 (6 SE2d 168) (1939), I would vote to affirm the trial court’s denial of summary judgment under authority such as Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989); Virginia Highland Assoc. v. Allen, 174 Ga. App. 706 (330 SE2d 892) (1985); Sentell, The Doctrine of Estoppel in Georgia Local Government Law (Univ. of Ga., 1985).