text:
    A92A0529.
    MASHBURN v. WRIGHT.
    (420 SE2d 379)
   Sognier, Chief Judge.

Arthur Wright brought suit against Carolyn Mashburn, as executor of the estate of Charlie V. Wright, to recover $55,621.42, the amount of a redeemed certificate of deposit that Wright alleged had been gifted to him by the decedent. The jury returned a verdict in favor of Arthur Wright, and Mashburn appeals.

The evidence established that appellant’s decedent (hereinafter “Wright”) learned in the fall of 1989 that he had cancer. Wright’s wife and only child had predeceased him; appellee was his sole surviving sibling. A year earlier he had executed his will, leaving his house to appellant, his automobile to his long-time companion, Bessie Addleton, and the remainder of his estate, including certificates of deposit, to 12 friends and relatives, naming appellee’s children but not appellee. Addleton testified that two months before his death in December 1989, Wright had stated to her that “maybe I should have left [appellee] a little something, but he gets over $2,600 a month retirement and he’d just throw it away.”

Appellee testified that he was at Wright’s home on September 30, 1989, Wright’s 70th birthday, and that Wright retrieved a large envelope that had been attached to the bottom of a kitchen cabinet drawer. Appellee testified that Wright handed him the certificate of deposit that was in the envelope and stated, “this is yours, I want you to have it.” Wright told appellee the certificate would mature in February and stated to appellee that they would go to the bank and then he was “going to sign it over to me [appellee].” Appellee testified he made the decision to put the certificate back into the envelope and leave it stapled to the kitchen cabinet drawer in Wright’s house because “[i]t was just as safe there as it would be anywhere that I kn[e]w of.” No one else witnessed this event, and the evidence was uncontroverted that neither Wright nor appellee mentioned this transaction to anyone else in the remaining months of Wright’s life. There was no evidence that Wright was suffering from any diminished mental capacity or that appellee was in a position of dominance and control over him at the time of the gift. On cross-examination, appellant acknowledged that she would believe that statements appellee made under oath were true.

Wright’s certificate of deposit stated on its face that it could not be pledged, transferred, or assigned to any party other than the issuing credit union, and the employee of the credit union who assisted Wright when he purchased the certificate in February 1989 testified that she informed Wright at that time that he could list a beneficiary to avoid tying up the proceeds in court should Wright die before it matured, but that Wright declined to do so.

Appellant contends the trial court erred by denying her motions for directed verdict and judgment n.o.v. because appellee failed to carry his burden of proving by a preponderance of the evidence that Wright made a valid gift to him of the certificate of deposit. The standard for granting a motion for directed verdict is the same as that governing judgment n.o.v., Famiglietti v. Brevard Medical Investors, 197 Ga. App. 164 (1) (397 SE2d 720) (1990), and we will affirm the trial court unless there is no evidence to support the jury’s verdict. Id.

“To constitute a valid inter vivos gift, (1) the donor must intend to give the gift; (2) the donee must accept the gift; and (3) the gift must be delivered or some act which under law is accepted as a substitute for delivery must be done. OCGA § 44-5-80. The party seeking to prove title by gift must do so by clear and convincing evidence. [Cit.]” (Punctuation omitted.) Parker v. Peavey, 198 Ga. App. 694, 696 (2) (403 SE2d 213) (1991). Because we find that the evidence authorized, but did not demand, a finding by the jury that appellee carried his burden of proof and established all the essentials of a valid gift, it follows that the trial court did not err by denying appellant’s motions for j.n.o.v. and new trial. See Beard v. Stephens, 117 Ga. App. 132, 133 (159 SE2d 441) (1968).

First, we do not agree with appellant that appellee’s testimony regarding statements made to him by the deceased, albeit uncorroborated and self-serving, cannot serve to support the jury’s verdict. The statements by Wright were admissible as an exception to the hearsay rule under the criteria set forth in Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224-225 (1) (173 SE2d 691) (1970), in that Wright’s death created the necessity for the admission of the statements, and a circumstantial guaranty for the trustworthiness of Wright’s statements was provided by the fact that the statements were against his own interest, i.e., Wright was consciously divesting himself of ownership of the certificate of deposit. OCGA § 24-3-8; see generally State Farm &c. Ins. Co. v. Great Am. Ins. Co., 164 Ga. App. 457, 458-460 (1) (297 SE2d 355) (1982); compare Chrysler Motors, supra at 225-226. The fact that Wright’s statements were in the best interest of the propounding witness, appellee, is not relevant to the admissibility of the declarations in question “because circumstances indicating that a witness has an interest in the case . . . should merely go to the credibility of the witness, not to the admissibility of the declarant’s statement. As with all questions of witness credibility, opposing counsel has the right to draw the jury’s attention to these circumstances through cross-examination of the witness and argument to the jury.” Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (1) (372 SE2d 423) (1988). In Swain the Supreme Court expressly overruled the holding in Irby v. Brooks, 246 Ga. 794 (273 SE2d 183) (1980) that the interest of the propounding witness was a relevant factor in ascertaining trustworthiness as a threshold question of admissibility, thereby reversing sub silentio those cases relying on that proposition such as James v. Elder, 186 Ga. App. 810, 811 (368 SE2d 570) (1988); NeSmith v. Ellerbee, 203 Ga. App. 65, 67 (2) (416 SE2d 364) (1992). Contrary to. appellant’s contention, the holding in Boyce v. Murray, 195 Ga. App. 746 (395 SE2d 255) (1990), is distinguishable from the case sub judice in that the donor in Boyce was mentally infirm and was under the donee’s control at the time the alleged gift was made.

Next, appellant argues the jury’s verdict must be reversed because the restrictions placed by the issuing credit union on the legal assignment of the certificate of deposit rendered it incapable of being transferred by Wright to appellee in the manner described by appellee. We do not agree. “ ‘All kinds of personal property which are capable of manual delivery and of which the title either legal or equitable can be transferred by delivery may be the subject matter of a valid gift; accordingly, as to promissory notes, bills of exchange, checks, bonds, and other like choses in action, the equitable title to which may be transferred in the manner indicated, the gift may be sustained even though the instruments are delivered without indorsement or assignment.’ [Cit.]” (Emphasis supplied.) Swann v. Morris, 212 Ga. 460, 462 (93 SE2d 673) (1956). A certificate of deposit is a subsisting chose in action. Ward v. Sebren, 242 Ga. 782 (1) (251 SE2d 524) (1979). “[A] certificate of deposit, payable to the order of the depositor or to the bearer, is the subject of a gift either inter vivos or causa mortis . . . [a]nd it makes no difference that the certificate of deposit . . . , although payable to the order of the donor, has not been endorsed by him. If such chose in action has in fact been delivered to the donee by the donor, and intended thereby as a gift, the donee acquires an equitable title which is complete and can be enforced. [Cit.]” Philpot v. Temple Banking Co., 3 Ga. App. 742, 747-748 (60 SE 480) (1908). Thus, although the unambiguous language on the certificate in issue prevented Wright from legally assigning the certificate to anyone other than the credit union, see generally Henry v. Cobb Bank &c. Co., 151 Ga. App. 725, 726 (261 SE2d 459) (1979), rev’d on other grounds, 246 Ga. 225 (271 SE2d 444) (1980), as a matter of law that non-assignability did not prevent appellee from acquiring as a gift from Wright an equitable interest in the funds represented by the certificate. Philpot, supra. Our holding in this regard follows a well-established line of case law in which the appellate courts of this state have recognized that legal restrictions on the assignability or exchange of ownership of certain choses in action are for the benefit and protection of the issuing institution, and do not prevent the making of a valid gift of the chose in action by a delivery that does not comport with the legal conditions placed on the chose. See, e.g., Swann, supra, in which the donor gave the donee a deposit book representing a savings account at a savings and loan association. The association refused the donee’s demand for payment and subsequently filed an interpleader action naming the donee and the administrator of the donor’s estate to set up their claims to the funds. The Supreme Court rejected the administrator’s argument that there could be no gift because the transfer did not comply with statutes regulating transactions between such associations and association members, stating that the statutes were “for the protection of the association and for its benefit, and [do] not affect the right of a member to make a valid gift of his property. [Cits.] In the instant case, the savings and loan association has paid the money in the account into the registry of the court, . . . and it has no further interest in the fund, and clearly the administrator is not in position to invoke this Code section.” Id. at 464. See also Underwood v. Underwood, 43 Ga. App. 643 (159 SE 725) (1931), where in a suit brought by the donor’s administrator against the donee to recover the proceeds of a participation certificate issued by a bank entitling the holder to a proportionate share of the proceeds of certain mortgages, we held: “if the [donor] did in truth execute and deliver the gift, as claimed by the [donee], the [donee] thereby obtained such a right of possession as would defeat the administrator’s action of trover, regardless of whether the [donee] may have acquired such legal title as would authorize her to proceed by suit in her own name against the obligors in the choses in action [represented by the participation certificate].” (Emphasis supplied.) Id. at 645 (6).

We do not agree with appellant that the evidence demanded a finding that Wright did not possess the present intent of making a gift to appellee. Given appellee’s testimony that Wright handed him the certificate of deposit and told him that the certificate was appellee’s and that Wright wanted appellee to have it, there was some evidence from which the jury could have found that Wright intended to part immediately with the certificate. Thus, the jury was entitled to reject appellant’s argument that Wright’s statement to appellee that he “was going to sign” the certificate over to appellee constituted evidence that Wright did not possess the present intent of making a gift to appellee of the certificate at the time of the delivery, and was authorized instead to find that Wright’s words were made for the express purpose of more effectually carrying out Wright’s intention that appellee receive as a gift the funds represented by the certificate. See Philpot, supra at 749.

Appellant’s reliance on our recent opinion in NeSmith, supra, is misplaced. The holding in that case was based on the fact that the donee’s own testimony established that the donor had no intention of making a present gift of the certificates of deposit in issue. Our discussion of the effect the legal negotiability of the certificates in issue had on the making of a valid gift was mere dicta, and we neither overruled nor questioned the holding in Philpot as it pertains to the case sub judice.

Finally, appellant argues that the jury verdict cannot be maintained because even assuming the certificate of deposit was delivered to appellee, Wright’s retention thereafter of the certificate on which he was the named owner required the jury to find as a matter of law that Wright had not relinquished control over the certificate. We do not agree. “It is generally settled that there must be a present intention to give, full completion and execution of the gift by the donor, and acceptance of the gift by the donee, and furthermore that the donor must have renounced all dominion over the subject-matter of the gift, in order to make the transaction binding . . . .” Clark v. Bridges, 163 Ga. 542, 545 (136 SE 444) (1926). “When it appears that the donor has relinquished all dominion and control over the property as owner and parted absolutely with title, the mere fact that the do-nee allows possession to remain with the donor will not necessarily defeat the gift. [Cit.]” Hall v. Simmons, 125 Ga. 801 (1) (54 SE 751) (1906). Under the circumstances in this case, it was a question of fact for the jury to determine whether Wright had in fact relinquished control by the gift, see Williams v. McElroy, 35 Ga. App. 420, 421 (2) (133 SE 297) (1926), and although the evidence did not demand the verdict, the jury was authorized to believe appellee’s testimony that the certificate was in Wright’s home only because appellee left it with Wright for safekeeping and conclude from this and other evidence that Wright had unconditionally and completely surrendered dominion over the certificate of deposit during his life. Compare Clark, supra at 545-546 (no irrevocable surrender of deposited funds occurred where depositor/donor retained unlimited right to check against account).

Decided June 29, 1992.

Adams & Hemingway, W. W. Hemingway, David A. Garland, for appellant.

Hall, Bloch, Garland & Meyer, J. Ellsworth Hall III, Benjamin M. Garland, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       We note that the gift in issue was not the certificate of deposit itself but the money that the certificate of deposit represented. Ward v. Sebren, 242 Ga. 782 (1) (251 SE2d 524) (1979).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A92A0604.
    JAMES v. THE STATE.
    (420 SE2d 383)
   Beasley, Judge.

James appeals her judgment of conviction and sentence for sale of marijuana in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b).

Based on information from a confidential informant, Special Agent McManus and a second GBI undercover agent proceeded to appellant’s residence for the purpose of making an undercover purchase of marijuana. Agent McManus testified that he knocked on the door of appellant’s home and she admitted him, asking what he wanted. He responded, “some smoke,” whereupon she agreed to sell him a quantity of marijuana which the agent observed in a clear plastic bag on a coffee table in close proximity. They agreed on a price of $40. He testified that he had “no doubt” that appellant was the person who sold him the contraband.

1. Appellant contends she is entitled to a new trial because of a prejudicial statement made by the prosecuting attorney in closing argument.

After her arrest and receipt of Miranda warnings, appellant agreed to make a statement to the investigating officer, which he recorded and she signed: “Betty Jean James states she does not remember selling Agent McManus a quantity of marijuana.”

Appellant testified in her own defense, stating during direct examination, “I have never sold marijuana or anything to anyone.” She testified on cross-examination, “Well, I never sold him [Agent Mc-Manus] no pot, so I wouldn’t remember it.”

The prosecutor argued in closing, “I would submit that the State’s case is as good as it can be, direct eyewitness testimony. But the most compelling piece of evidence is the defendant’s own statement given at the time. She didn’t say, ‘I’ve never seen you before, I didn’t sell you any marijuana,’ she says, T don’t remember selling any, I don’t remember.’ What you could deduce from that is I sell so much marijuana, I don’t remember who I sell it to.” Appellant’s objection, which was that the deduction was not a logical inference to be drawn from the evidence, was overruled. No further relief was requested.

Decided June 29, 1992.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

Appellant’s post-arrest statement was properly in evidence and thus was a suitable subject for closing argument. As appellant concedes, a prosecutor may argue deductions which are illogical, absurd or even unreasonable, so long as there is evidence from which such deductions may be drawn. Abner v. State, 139 Ga. App. 600, 602 (3) (229 SE2d 83) (1976); Clark v. State, 146 Ga. App. 697 (3) (247 SE2d 221) (1978). “[I]t is permissible for counsel to draw deductions from the evidence regardless of how illogical and unreasonable, and this is a ‘matter for reply by adverse counsel, not for rebuke by the court.’ [Cit.]” Adams v. State, 260 Ga. 298, 299 (1) (392 SE2d 866) (1990). Accord George v. State, 260 Ga. 809 (4) (400 SE2d 911) (1991). The trial court did not err in overruling appellant’s objection that it was not logical.

We express no opinion as to whether, as appellant now asserts, the prosecutor’s remark had the effect of impermissibly introducing her character in evidence. That was not the basis for the objection raised at trial and we are not at liberty to consider it. “ ‘A ground not raised by objection at trial cannot be raised for the first time on appeal.’ [Cit.]” Thomas v. State, 196 Ga. App. 88, 90 (395 SE2d 615) (1990).

2. Appellant enumerates as error that portion of her sentence ordering payment of court-appointed attorney expenses, without first conducting a hearing and making written findings of fact as required by OCGA §§ 17-14-8 and 17-14-10. Because the court amended the sentence (during a hearing on appellant’s motion to reconsider sentence) by deleting the requirement of reimbursement for court-appointed attorney fees, this enumeration is moot.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1022.
    SCAPIN v. THE STATE.
    (420 SE2d 385)
   McMurray, Presiding Judge.

Defendant Scapin appeals her conviction of the offenses of failure to maintain lane and driving under the influence of alcohol. The sole enumeration of error contends the trial court erred in failing to grant defendant’s motion for new trial and motion to set aside verdict because of ineffective assistance of counsel. Held:

“Georgia has adopted the two part test for effectiveness set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Cit.] Under the Strickland formula, defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) that the deficient performance prejudiced the defense. [Id.] at 687.” Perkins v. State, 260 Ga. 292, 293 (2), 294 (392 SE2d 872). See also Griffin v. State, 199 Ga. App. 646, 647 (405 SE2d 877). The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel. Mason v. State, 199 Ga. App. 691, 693 (2) (405 SE2d 747). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484).

Defendant contends that she had a viable defense which was not presented due to the failure of trial counsel to conduct a proper investigation. Trial counsel was informed by defendant that she had a heart condition and that her physician, Dr. Taylor, could testify as to that condition. Dr. Taylor’s affidavit states that defendant has a condition of the heart, supra ventricular palpitations, which could result in erratic muscle movement and cause emotional liabilities causing defendant to appear to be intoxicated or uncoordinated. Defendant contends this medical evidence could have been used to explain her appearance at the time of the offenses.

While trial counsel did not consult or interview Dr. Taylor, there is no indication in the record on appeal as to whether this reflects some deficiency on the part of trial counsel or manifested a tactical decision. For example, trial counsel may have been reluctant to introduce evidence which by seeking to explain defendant’s appearance may have afforded credence to any State’s evidence that she did appear to be intoxicated. Tactical decisions are the exclusive province of the lawyer after consultation with his client. Pitts v. Glass, 231 Ga. 638, 640 (203 SE2d 515).

When there is nothing in the record to support the contention of error, there is nothing presented for appellate review. Singleton v. State, 198 Ga. App. 539, 540 (402 SE2d 132). Any transcript of the trial or of the hearing on defendant’s motions for new trial and to set aside verdict are absent from the record on appeal. The only evidence in the record on appeal is the affidavits, of herself and of her physician, submitted by defendant in support of her post trial motions. “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985). The determination as to which defense witnesses will be called is a matter of trial strategy and tactics.” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (reversed on other grounds, 261 Ga. 386 (405 SE2d 482)). The evidence of record was not sufficient to compel a finding that trial counsel’s performance was deficient or that any deficiency of trial counsel prejudiced the defense. The trial court’s finding that defendant was afforded effective assistance of counsel must be upheld since it is not clearly erroneous. Harris v. State, 198 Ga. App. 503, supra.

Decided June 29, 1992.

John H. Ridley, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, Rosanna Musengo, Assistant Solicitor, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1114.
    EMMETT v. SAPAROW et al.
    (420 SE2d 386)
   McMurray, Presiding Judge.

In this appeal from the grant of summary judgment in a suit on a note and guaranty agreement, the following facts are undisputed: Appellant Larry J. Emmett and appellee Herschel C. Saparow organized a business enterprise as equal partners called Mountain Brook Bedspreads and Draperies, Inc. (hereinafter “Mountain Brook”) in June of 1989. Mountain Brook borrowed $200,000 from Trust Company Bank of Cobb County by executing a note in the bank’s favor signed by Emmett as chairman and Saparow as president of the business. Emmett and Saparow also executed a guaranty in favor of the bank to secure all extensions of credit to Mountain Brook, which provided for unconditional and irrevocable joint and several liability of each guarantor. The guaranty further provided that neither transfer nor assignment of the note and guaranty nor loss or sale of any assets of Mountain Brook securing the note would release or discharge the guarantors from liability. Emmett executed the guaranty individually; Saparow executed it individually and as president of Scroll Fabrics, Inc., although Scroll Fabrics, Inc. owned no shares in Mountain Brook, received no Mountain Brook profits and paid none of its losses.

On or about January 1, 1990, Mountain Brook became insolvent. On February 27, 1990, Emmett and Saparow entered into a written agreement whereunder Emmett resigned his position at Mountain Brook and transferred his shares of stock to Saparow, and Saparow was to negotiate with another business to form a new corporation utilizing Mountain Brook’s assets and pay off its note. The following April, when Herschel C. Saparow was unable to find a buyer for Mountain Brook, he and his wife Susan L. Saparow purchased the note from Trust Company Bank of Cobb County for $220,499.73 and were assigned the guaranty. Emmett was not discharged or released from his obligation under the guaranty, nor did he notify the bank he intended to terminate the guaranty. After Emmett made no payment on the note, by letter dated November 29, 1990, Herschel C. Saparow and Susan L. Saparow (“appellees”) demanded one-half of the amount due, which was alleged to be $110,249.97, plus interest and attorney fees, from him as guarantor of the note, plus attorney fees pursuant to OCGA § 13-1-11. When Emmett made no response to the demand letter, appellees filed the suit sub judice seeking their statutory right to contribution of one-half the amount due plus interest and attorney fees or, in the alternative, the full amount due them as assignees of the note under the guaranty less Emmett’s right of contribution. Both parties filed motions for summary judgment. The trial court rejected Emmett’s claims of fraud and novation, denied his motion and granted summary judgment to appellees. Emmett appeals. Held:

1. Appellant’s contention that appellee Susan L. Saparow had no standing to seek contribution presents no basis for reversal since she is entitled to recover under the guaranty as an assignee of the note. Hazel v. Tharpe & Brooks, 159 Ga. App. 415 (1) (283 SE2d 653) (1981).

2. Appellant asserts that the trial court erred in granting summary judgment to appellees on his counterclaim contending that their bad faith and fraud required him to be discharged of his obligations under the guaranty. The trial court specifically stated that the issues of fraud raised by appellant were not before the court or considered in its ruling, as appellant’s arguments and citations of authority were conclusory and not supported by facts. “[A] complaint which alleges a claim for damages for fraud is insufficient as a matter of law. The allegation of fraud is limited to the legal conclusion that [appellant was] induced to enter into the contract through fraud. When alleging fraud, the circumstances constituting fraud must be stated with particularity. [OCGA § 9-11-9 (b); Cits.]” Holder v. Brock, 129 Ga. App. 732 (2) (200 SE2d 912) (1973). See generally Gregory’s Georgia Civil Practice, 194, § 3-3 (1990). While appellant argues in his brief on appeal that his decision to sell his Mountain Brook stock and all of his interest in its assets would not have occurred had appellee Herschel C. Saparow not deceived him, none of these contentions is relevant to the issue of whether he was obligated under the guaranty and no pertinent facts have been demonstrated by citation to the record. Furthermore, paragraph 2 of the February 27, 1990 agreement expressly reserves his liability on the note and guaranty. “ ‘It is the duty of the party asserting error to show it by the record, and assertions of evidence in briefs cannot satisfy this duty. (Cit.)’ [Cit.]” Lundy v. Low, 200 Ga. App. 332, 333 (1), 334 (408 SE2d 144) (1991).

3. Appellant’s enumeration asserting that a change in the nature and terms of the original note resulted in the novation of the contract between appellees and the bank which discharged his obligations is without merit. There was an assignment of the note to appellees by the bank upon their payment of the indebtedness, and the guaranty agreement specified that it enured to the benefit of the bank, its successors and assigns. “Therefore, transfer of the principal obligation also operated as an assignment of [appellant’s] obligation. [Cits.]” Hazel v. Tharpe & Brooks, 159 Ga. App. at 415-416 (2), supra. See also OCGA § 11-3-201; Mitchell v. Ringson, 169 Ga. App. 88 (1) (311 SE2d 516) (1983).

4. Appellant challenges the trial court’s mathematical calculation of the amount he owes as guarantor of the note. He argues that assuming Herschel C. Saparow and Susan L. Saparow paid off Mountain Brook’s debt remaining on the note, they would be entitled to recover only his proportionate share of the debt at that time, not one-half of the entire sum borrowed plus accrued interest and attorney fees on the full amount up until the time of judgment as calculated by the court. However, the calculations were based upon figures supplied by the bank that were undisputed. Appellant concedes that Mountain Brook paid the bank $13,188.89 in addition to the $186,811.11 note from the Saparows and he was allowed a credit of $5,095.13 for payments made during the time he and Herschel C. Saparow were partners. We find no grounds for reversal.

5. Appellant protests the grant of summary judgment to Herschel C. Saparow and Susan L. Saparow on issues relating to his assertion that Herschel C. Saparow and Susan L. Saparow were not legally subrogated to the bank’s rights because they had not paid off the original note, and thus were not entitled to contribution. He cites Jessee v. First Nat. Bank of Atlanta, 154 Ga. App. 209, 210 (2) (267 SE2d 803) (1980) as authority for the precept that a surety has the legal right to seek contribution against a co-surety only upon payment of the debt of the principal. Since the evidence was undisputed that appellees did indeed purchase the note, thereby extinguishing the indebtedness of Mountain Brook, this premise cannot be maintained as a basis for appellant’s discharge.

Decided June 29, 1992.

Timothy P. Healy, for appellant.

Weisz & Port, Peter R. Weisz, Cathy R. Nash, for appellees.

6. Appellees’ motion to dismiss the appeal and for sanctions is denied.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1176.
    BOYD v. THE STATE.
    (420 SE2d 389)
   McMurray, Presiding Judge.

Following a jury trial, defendant was found guilty of possessing less than one ounce of marijuana, driving under the influence (“DUI”), hunting at night, hunting from a vehicle and hunting from a public road. With regard to the marijuana charge, defendant was fined and sentenced to 12 months probation on condition that he serve 120 days in the Blairsville Detention Center and submit to drug and alcohol treatment. Until there was an opening at the Blairsville Detention Center, defendant was “remanded to the custody of the Dawson County jail.” Defendant was also fined and sentenced to 12 months probation upon the DUI charge and to “serve 120 days at the Blairsville Probation Detention Center concurrent to [the possession of marijuana sentence].” However, the sentencing court added that probation on the DUI charge was to “run consecutive” to probation on the possession of marijuana charge. With regard to the other charges, defendant was fined and given concurrent sentences of 12 months probation. Defendant appeals. Held:

In his sole enumeration of error, defendant contends the sentences he received constitute cruel and unusual punishment in violation of Article I, Section I, Paragraph XVII of the Constitution of the State of Georgia. More specifically, defendant asserts he is being punished cruelly and unusually because he has been remanded to the Dawson County Jail for an unspecified period, i.e., until there is an opening for him at the Blairsville Detention Center. This contention is without merit. Defendant has not been sentenced for an unspecified period of time. He received a 12-month sentence and he has been permitted to serve that sentence on probation provided he comply with certain conditions.

“A sentence is not cruel and inhumane within the constitutional inhibition so long as it is within the statutory limit. Whisman v. State, 221 Ga. 460 (1) (145 SE2d 499); Grice v. State, 224 Ga. 376 (7) (162 SE2d 432); Prater v. State, 16 Ga. App. 296 (4) (85 SE 204); Strozier v. State, 116 Ga. App. 777 (2) (159 SE2d 182); Stuart v. State, 117 Ga. App. 183 (3) (160 SE2d 409).” Bearden v. State of Ga., 122 Ga. App. 25 (1) (176 SE2d 243). Inasmuch as the probated sentence which defendant received is within the statutory limit, it does not constitute cruel and unusual punishment.

Decided June 29, 1992.

Thompson, Fox, Jolliff, Chandler & Homans, Robert B. Thompson, Wagner & Associates, D. W. Wagner, for appellant.

C. Andrew Fuller, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur..


author: Carley, Presiding Judge.

text:
    A92A0054.
    LUNCEFORD v. INTEGRAL INSURANCE COMPANY.
    (420 SE2d 389)
   Carley, Presiding Judge.

Appellee-plaintiff insurer brought the instant declaratory judgment action, seeking a declaration that it was not contractually obligated to provide basic no-fault benefits to appellant-defendant, who was injured while driving his employer’s vehicle. Cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and appellant appeals.

“The insurer of a motor vehicle with respect to which security is required by [former] Code Section 33-34-4 shall pay basic no-fault benefits without regard to fault for economic loss resulting from: Accidental bodily injury sustained by any other person while occupying the owner’s motor vehicle if the accident occurs within the United States of America, its territories or possessions, or Canada. ...” (Emphasis supplied.) Former OCGA § 33-34-7 (a) (2). However, in order to be eligible for basic no-fault benefits, the “other person” must have been one who was otherwise “insured” under the terms of the policy. “No owner of a motor vehicle required to be registered in this state . . . shall operate or authorize any other person to operate the motor vehicle unless the owner has insurance on the vehicle providing the following minimum coverage: Compensation to insured injured persons without regard to fault up to an aggregate minimum limit of $5,000.00 per insured injured person. . . .” (Emphasis supplied.) Former OCGA § 33-34-4 (a) (2). “ ‘Insured’ means . . . any other person using or occupying the insured vehicle with the express or implied permission of the named insured or his spouse.” (Emphasis supplied.) Former OCGA § 33-34-2 (5). Consistent with former OCGA § 33-34-2 (5), the policy issued by appellee to appellant’s employer provided that it would not afford basic no-fault coverage for “ ‘bodily injury’ sustained by any person while using the covered ‘auto’ without [the employer’s] express or implied permission. ...” Accordingly, unless appellant was using or occupying his employer’s vehicle with his employer’s “express or implied permission,” he has no viable claim for basic no-fault benefits even though he was a person “other” than the owner who had suffered an “accidental bodily injury while occupying that vehicle.” “The definition of ‘insured’ [in former OCGA § 33-34-2 (5) was] clearly applicable to the personal injury protection (‘PIP’) provisions of the policy within the meaning of [OCGA § 33-34-4 (a) (2)].” Allstate Ins. Co. v. Skinner, 150 Ga. App. 106, 107 (257 SE2d 4) (1979).

Decided June 30, 1992.

Smith & Polstra, Gary W. Smith, Gary M. Hays, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Michelle P. Jordan, for appellee.

It appears that, at the time of the injury, appellant was not merely operating the vehicle for is own personal use without his employer’s express or implied permission. He was operating it in contravention of his employer’s express direction that it was only to be used for business and not for personal purposes. “Since [appellant] used a company truck in an expressly forbidden manner, he would not be insured under the policy issued to [his employer] even if the first instance permission rule was adopted.” Select Ins. Co. v. Register, 192 Ga. App. 145, 147 (384 SE2d 238) (1989). Compare United Svcs. Auto. Assn. v. Lail, 192 Ga. App. 487 (385 SE2d 424) (1989). It follows that the trial court was correct in granting summary judgment in favor of appellee and in denying appellant’s motion for summary judgment.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1126.
    EKARIKA v. CITY OF EAST POINT et al.
    (420 SE2d 391)
   McMurray, Presiding Judge.

Ita Wilson Ekarika (plaintiff) instituted an action against the City of East Point (“East Point”) and Officer Homer Peter Miller of the East Point Police Department, alleging that Officer Miller, acting within the scope of his employment, negligently drove an East Point police car into plaintiff’s vehicle. East Point filed a motion for judgment on the pleadings, arguing OCGA § 36-33-3 bars plaintiff’s respondeat superior claim. This Code section provides as follows: “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” Plaintiff cited OCGA § 33-24-51 (b), arguing that East Point waived immunity under OCGA § 36-33-3 to the extent of coverage under a motor vehicle liability insurance policy covering Officer Miller’s alleged negligent acts.

The trial court granted the motion for judgment on the pleadings and entered, in pertinent part, the following order: “OCGA § 36-33-3 prohibits recovery against the City of East Point upon the respondeat superior theory, as the underlying tort was alleged to have been committed by a ‘police officer engaged in the discharge of the duties imposed on (him) by law.’ See OCGA § 36-33-3. This limitation of liability is not affected by the existence of liability coverage purchased by the City, and applicable to the tort alleged.” The trial court certified this order for immediate review. This appeal followed the grant of plaintiff’s application for interlocutory appeal. Held:

OCGA § 33-24-51 (b) provides, in pertinent part, as follows: “Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase [motor vehicle liability] insurance ... to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. Neither the municipal corporation, county, or political subdivision of this state nor the insuring company shall plead governmental immunity as a defense; and the municipal corporation, county, or political subdivision of this state or the insuring company may make only those defenses which could be made if the insured were a private person.”

In the case sub judice, there is no dispute that East Point purchased motor vehicle liability insurance covering the alleged negligent acts of Officer Miller. However, East Point contends its immunity under OCGA § 36-33-3 is not waived to the extent of said insurance because OCGA § 36-33-3 is not a governmental immunity statute and is therefore not subject to the waiver of immunity provision of OCGA § 33-24-51 (b). In support of this position, East Point relies on Welch v. Douglas County, 199 Ga. App. 269 (404 SE2d 450), where it was held that the purchase of liability insurance did not constitute a waiver of the immunity provisions of the Recreational Property Act, OCGA § 51-3-20 through § 51-3-26.

Decided June 30, 1992.

William J. Deangelis, for appellant.

Barnhart, O’Quinn & Williams, Steven D. Barnhart, for appellees.

In Welch v. Douglas County, supra, plaintiff sued Douglas County after stepping on a nail at a county ball field. Summary judgment was entered for the county based on liability limiting provisions of the Recreational Property Act. This Court held that the county did not waive protection under the Recreational Property Act by purchasing liability insurance, reasoning as follows: “Plaintiff confuses sovereign immunity with the specific limitation of duty granted to any landowner, public or private, by the Recreational Property Act. Immunity under the Act is a result of the legislature’s policy decision to limit the duty of a landowner providing property to the public for recreational use at no charge in exchange for increased recreational opportunities for the citizens of the State.” Welch v. Douglas County, 199 Ga. App. 269 (1), 270, supra.

The case sub judice is distinguishable from Welch v. Douglas County, supra. The Recreational Property Act is a general immunity statute, limiting liability of both public and private landowners. OCGA § 36-33-3 provides immunity only to governmental entities, i.e., municipal corporations. Consequently, OCGA § 36-33-3 is a governmental immunity statute and is subject to the waiver of immunity provision of OCGA § 33-24-51 (b). It follows that East Point may be vicariously liable to plaintiff for Officer Miller’s alleged negligent acts up to the limits of its policy of motor vehicle liability insurance and that the trial court erred in granting East Point’s motion for judgment on the pleadings. Compare Peeples v. City of Atlanta, 189 Ga. App. 888 (377 SE2d 889), where the dispute was over the City’s liability for damages beyond insurance coverage.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

       The complaint alleges that “Miller was negligent in that: (a) he failed to exercise the ordinary degree of care required of a driver of an automobile, Luxenburg v. Aycock, 41 Ga. App. 722 (1930); (b) he failed to yield the right-of-way when making a left turn, in violation of O.C.G.A. § 40-6-71; and, (c) he failed to sound his siren or flash his lights.”


text:
    A92A1136.
    HARDEN v. BURDETTE et al.
    (420 SE2d 626)
   McMurray, Presiding Judge.

At about 11:40 p.m. on April 18, 1990, while responding to an emergency police call, Union City Police Officer Michael Anthony Burdette collided into a vehicle operated by Rita Harden. Harden sued Union City and Burdette, alleging she was injured as a result of Burdette’s negligent operation of the police vehicle. Burdette and Union City asserted the defense of sovereign immunity and filed a motion for summary judgment. Plaintiff amended her complaint, alleging Union City created and maintained a nuisance by “using police officers or other drivers in emergency situations who have not undergone basic emergency vehicle training. ...” Plaintiff then filed a motion for partial summary judgment on the issue of Burdette’s negligent operation of the police vehicle. Burdette and Union City filed a “SECOND AND/OR AMENDED MOTION FOR SUMMARY JUDGMENT” on plaintiff’s nuisance claim.

It is undisputed that Union City and Burdette are covered under the Georgia Interlocal Risk Management Agency (“GIRMA”), a group self-insurance fund created pursuant to OCGA § 36-85-1 et seq. The GIRMA policy provides a general limit of liability of $1,000,000.

The trial court granted summary judgment to Union City and Burdette based on the doctrine of sovereign immunity, rejecting Harden’s claim that sovereign immunity is waived to the extent of GIRMA coverage. The trial court denied Harden’s motion for partial summary judgment and did not rule on the summary judgment motion attacking Harden’s nuisance claim. This appeal followed. Held:

1. In her first and third enumerations, Harden contends the trial court erred in granting summary judgment to Union City and Burdette based on the doctrine of sovereign immunity. She argues that sovereign immunity is waived to the extent of coverage under Union City’s GIRMA policy and that the non-waiver of immunity provision of OCGA § 36-85-20 is unconstitutional.

In Hiers v. City of Barwick, 262 Ga. 129, 130 (2) (414 SE2d 647), the Supreme Court held that the constitutional provision providing waiver of immunity to the extent of insurance, Art. I, Sec. II, Par. IX of the Constitution of Georgia of 1983 (prior to the 1991 amendment), applies to municipalities; that the non-waiver of immunity provision of OCGA § 36-85-20 is unconstitutional and that municipal coverage under a GIRMA policy results in waiver of immunity to the extent of said coverage. Id. at Divisions 2 and 3. Notwithstanding, Union City and Burdette contend Hiers is distinguishable from the case sub judice because Union City’s GIRMA policy provides coverage only “by reason of the liability imposed upon the Member by law. . . .” It is argued that this language specifically excludes coverage for any claim under the policy where sovereign immunity could be asserted as a defense to liability in the absence of insurance. This logic is circularly skewed, providing no basis of distinction from Hiers. For example, if coverage under Union City’s GIRMA policy exists only for “liability imposed upon the Member by law,” then it can just as easily be reasoned that coverage in the case sub judice attaches because the law provides for a waiver of sovereign immunity to the extent of coverage under Union City’s GIRMA policy.

Union City and Burdette also contend that Hiers should be “reexamined and overruled” because voting patterns of the Supreme Court indicate that “four justices now on the Supreme Court. . . differ with the Hiers’ majority. ...” These contentions present nothing for review. The Court of Appeals of the State of Georgia is without authority to overrule or second guess decisions of the Supreme Court of Georgia. The Supreme Court’s decision in Hiers v. City of Barwick, 262 Ga. 129, supra, is controlling in the case sub judice and must be followed. Consequently, the trial court erred in granting summary judgment to Union City and Burdette based on the doctrine of sovereign immunity.

2. Harden contends Burdette’s private automobile insurance coverage constitutes a waiver of sovereign immunity to the extent of said coverage; that settlement of her property claims with Burdette’s knowledge constitutes a waiver of sovereign immunity; that sovereign immunity does not attach because Burdette’s alleged negligent acts were ministerial rather than discretionary and that Burdette cannot rely on sovereign immunity as a defense because his conduct in operating the police vehicle was willful, malicious or involved reckless disregard for the safety of others. It is unnecessary to address these arguments in light of our holding in Division 1 of this opinion. See Hiers v. City of Barwick, 262 Ga. 129, 132 (3), supra.

3. Harden contends the trial court erred in granting summary judgment to Union City and Burdette, arguing her injuries “resulted from a nuisance for which there is no immunity.” Issues on summary judgment not passed on by the trial court will not be considered on appeal. Devins v. Leafmore Forest Condo. Assoc. &c., 200 Ga. App. 158, 159 (3) (407 SE2d 76). In the case sub judice, the trial court did not pass on Burdette’s and Union City’s motion for summary judgment on Harden’s nuisance claim. Consequently, this contention presents nothing for review.

4. Harden contends she is entitled to partial summary judgment on the issue of negligence because undisputed evidence shows that Burdette was not sounding a siren at the time of the collision in violation of OCGA § 40-6-74 (a) and that Burdette then crossed the centerline of the highway in violation of OCGA § 40-6-40.

“ ‘A violation of the Uniform Rules of the Road prima facie establishes negligence per se in the absence of a valid defense. Johnson v. McAfee, 151 Ga. App. 774 (2) (261 SE2d 708) (1979). “(T)he burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care. (Cits.)” Williams v. Calhoun, 175 Ga. App. 332, 333-34 (333 SE2d 408) (1985).’ Cox v. Cantrell, 181 Ga. App. 722, 724 (5) (353 SE2d 582).” Arnold v. Arnold, 197 Ga. App. 103, 106 (3) (397 SE2d 724). In the case sub judice, Burdette gave deposition testimony that he was responding to an emergency police call at the time of the collision and that he had deactivated the siren immediately before the collision so as to stealthily approach the crime scene. Burdette also testified that he “thought [Harden] was over the [center]line . . .” of the road immediately before the collision and that after the collision he smelled alcohol on Harden’s breath. This evidence raises genuine issues of material fact as to whether Burdette responded to the emergency call as any other similarly situated law enforcement officer. See Walker v. Daniels, 200 Ga. App. 150, 155 (2), 156 (407 SE2d 70). Further, evidence that the collision occurred immediately after Harden negotiated a curve in a “road [that] is not that wide” and evidence that Harden was not wearing a seat belt at the time of the collision raise genuine issues of material fact as to whether Burdette’s alleged negligent operation of the patrol car was the proximate and sole cause of plaintiff’s injuries. Consequently, the trial court did not err in failing to grant Harden’s motion for partial summary judgment.

Decided June 30, 1992.

Robert M. Goldberg, Alan Z. Eisenstein, for appellant.

Dean, Brenskelle & Bowman, David P. Brenskelle, G. Gibson Dean II, for appellees.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1198.
    LEVERETT v. THE STATE.
    (420 SE2d 629)
   McMurray, Presiding Judge.

Defendant Leverett appeals his conviction of the offense of rape. Held:

1. Defendant contends that the State’s evidence fails to prove the crime of rape in that it was not established that defendant had gained carnal knowledge of the victim since the victim never testified clearly enough to establish the act of intercourse. This contention overlooks a portion of the victim’s testimony which follows: “Q. . . . did he put his penis into your vagina? A. Yes, sir. Q. It went inside your vagina? A. Sure did. Yes, sir. Q. . . . , are you sure it was this man’s penis. A. I’m sure it was him. Q. I’m asking you if you are sure it was his penis and not some object. A. It was him. It was his stuff.” This testimony was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that defendant had carnal knowledge of the victim. See also Richie v. State, 183 Ga. App. 248 (1), 250 (358 SE2d 648). The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court’s charge to the jury on the presumption of innocence which tracks the statutory language of OCGA § 16-1-5 was sufficient, particularly since there was no request for further instruction on this issue. Payne v. State, 233 Ga. 294, 309 (IV) (210 SE2d 775). Nor did the trial court err in failing to charge the jury that the presumption of innocence is in the nature of evidence. Campbell v. State, 181 Ga. App. 1, 3 (2) (351 SE2d 209).

3. Next, defendant contends that the trial court erred in failing to adequately charge the jury on the element of force required to be proved by the State to support a conviction of rape. The trial court correctly charged the elements of the offense, and that each element of the offense must be proved beyond a reasonable doubt. Each of the other elements of the crime of rape (penetration and lack of consent) was then separately articulated, but no further mention was made of the element of force. Defendant argues that under these circumstances the jury cannot be assumed to have considered the element of force. However, the charge to the jury on the element of force being complete and correct, we will not assume that it was disregarded by the jury. This is particularly the case where, as here, there was no request for further instruction on this issue. “A correct instruction to the jury is not erroneous for the failure to embody an additional explanatory charge. Wilkins v. State, 86 Ga. App. 12, 14 (1) (70 SE2d 541) (1952); Griffin v. State, 195 Ga. 368, 371 (24 SE2d 399) (1943).” Farmer v. State, 180 Ga. App. 720 (1c) (350 SE2d 583). See also McFarland v. State, 109 Ga. App. 688 (1), 689 (137 SE2d 308).

4. The trial court charged the jury that: “The law you will take from the Court as given you in this charge and the facts you get from the witnesses who testified and to the one you apply the other and then you make your findings.” In the final enumeration of error, defendant contends that the verdict must be reversed because the trial court failed to instruct the jury to also consider his documentary evidence. In this connection we assume, in the absence of any suggestion otherwise, that defendant’s exhibit, admitted into evidence, was sent out with the jury. While the trial court, in an apparent slip of the tongue, did omit to direct consideration of the exhibit, the notes of the doctor who examined the victim after the rape, there was nothing of significance in the contents of these notes which had not been brought out in the testimony presented at trial. Even if the trial court’s slip of the tongue prevented the jury’s consideration of this exhibit, it is highly unlikely that such would have affected the verdict returned by the jury. Harmless error does not require reversal. Jenkins v. State, 260 Ga. 231, 233 (4) (391 SE2d 397); Walthour v. State, 196 Ga. App. 721 (1) (397 SE2d 10); Watkins v. State, 191 Ga. App. 325, 326 (3) (328 SE2d 107); Bostic v. State, 184 Ga. App. 509, 512 (361 SE2d 872).

Decided June 30, 1992.

Dallas, Fowler & Wills, John P. Wills, Linda C. Simms, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn III, Assistant District Attorney, for appellee.

5. Defendant’s final enumeration of error contends the trial court erred in denying his motion to sequester the victim during the course of the trial. The prosecuting attorney having requested that the victim be permitted to remain in the courtroom to assist him in the presentation of the State’s case, it was not error to deny defendant’s motion. Edwards v. State, 171 Ga. App. 264, 265 (1) (319 SE2d 101).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1217.
    HARRELL v. THE STATE.
    (420 SE2d 631)
   McMurray, Presiding Judge.

Defendant Harrell appeals his conviction of the offenses of one count of rape and of three counts of child molestation. Held:

1. Defendant enumerates as error the denial of his motion for severance. The four counts of the indictment alleged offenses committed against three victims. The motion sought separate trials as to the charge or charges involving each alleged victim.

“Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462 (211 SE2d 752). However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.” Mack v. State, 163 Ga. App. 778 (1) (296 SE2d 115). As in Exley v. State, 198 Ga. App. 748, 750 (4) (402 SE2d 798), all of the charges against defendant in the case sub judice involved sexual activity with young girls reaching the level of a pattern. Two of the victims were neighbors and the third was a friend of theirs who sometimes visited in the neighborhood. Defendant was an acquaintance of all three victims. Each of the offenses involved a 12- or 13-year-old victim, occurred in a residence in defendant’s neighborhood after defendant arranged to be present where the victim was sleeping for the night, and began with defendant fondling the buttocks of his victims. The trial court did not abuse its discretion in denying defendant’s motion for severance. Exley v. State, 198 Ga. App. 748, 750 (4), supra; Seidel v. State, 197 Ga. App. 14, 15 (3) (397 SE2d 480); Phillips v. State, 160 Ga. App. 345 (1), 346 (287 SE2d 69).

2. Three of defendant’s enumerations of error are predicated on the decision in Rolader v. State, 202 Ga. App. 134 (413 SE2d 752). In each of these enumerations of error, defendant contends that statements of victims placed in evidence by the testimony of other witnesses pursuant to OCGA § 24-3-16 were not shown to be inherently reliable. However, in none of these instances was the issue, now argued on appeal, preserved by objection at trial. In the first instance, the sole basis of defendant’s objection to the testimony concerning a victim’s out-of-court statement was that the victim was present and available to testify. Of course, the availability of the child victim to testify is one of the prerequisites of OCGA § 24-3-16 and does not serve as a basis for excluding testimony concerning the victim’s statement. In the remaining two instances, defendant’s sole objection was that the testimony of a police detective concerning the victims’ out-of-court statements had the effect of bolstering the victims’ testimony which had not been impeached. However, such evidence of prior consistent statements is admissible under the decision in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). In the absence of an objection at trial, any discussion of the issues raised by the defendant for the first time on appeal is inappropriate. Hunter v. State, 202 Ga. App. 195, 196 (3), 198 (413 SE2d 526). These enumerations of error are without merit.

3. Contrary to defendant’s assertion, the trial court did not invade defendant’s Fifth and Sixth Amendment rights by admitting evidence concerning defendant’s pretrial statement to police. While defendant complains that he was not afforded the warnings required under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), such Miranda warnings are required only when a law enforcement officer initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom. Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459); Riviera v. State, 190 Ga. App. 823, 824, 825 (1) (380 SE2d 353). The uncontroverted evidence in the case sub judice clearly authorized the trial court to conclude that defendant was not in custody at the time his statement was made to the police.

“The issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply. [Cit.]” Childs v. State, 257 Ga. 243, 245 (3), 247 (357 SE2d 48). “In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court ‘must consider the totality of the circumstances’ and must determine the admissibility of the statement under the ‘preponderance of the evidence’ standard. Unless the factual and credibility findings of the trial court are ‘clearly erroneous,’ the trial court’s decision on admissibility will be upheld on appeal. [Cit.]” Fowler v. State, 246 Ga. 256, 257 (3), 258 (271 SE2d 168). See also Kincey v. State, 191 Ga. App. 300, 302 (2) (381 SE2d 439).

Decided June 30, 1992.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

In the case sub judice, the State presented evidence that defendant was not under arrest at the time of the interview and had been free to leave. The officer stated that he did not threaten or coerce the defendant in any way, promise him anything, or give defendant any reason to believe that he was not free to go at any time, that defendant did not appear to be under the influence of intoxicants, and that defendant appeared to be coherent and understand what was going on around him. The officer stated that defendant’s statement appeared to be freely and voluntarily made.

Furthermore, while the interview of defendant occurred at a police station and defendant was suspected of having committed the alleged crimes under investigation, neither of these factors required that defendant be given Miranda warnings. See Leach v. State, 259 Ga. 33, 35 (4) (376 SE2d 667), and California v. Beheler, 463 U. S. 1121 (103 SC 3517, 77 LE2d 1275).

4. In his motion for new trial, defendant raised for the first time an allegation that one of the victims was not sworn before she testified at trial. “Where a party, without objection, allows a witness to testify against him without first being sworn he cannot after conviction urge the failure of the witness to take the oath as a ground in a motion for a new trial. Rhodes v. State, 122 Ga. 568 (1) (50 SE 361) (1905). Thus, appellant’s failure to object constituted a waiver of the requirements of an oath. Smith v. State, 81 Ga. 479, 480 (2) (8 SE 187) (1888); Rhodes, supra.” Belcher v. State, 173 Ga. App. 509 (1), 510 (326 SE2d 857).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A92A0106.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. MADISON et al.
    (420 SE2d 586)
   Pope, Judge.

The Macon-Bibb County Hospital Authority (the Authority) brought this declaratory judgment action seeking a determination as to whether it was subject to the rules and regulations of the MaconBibb County Planning and Zoning Commission (the Commission).

The facts were stipulated by the parties. In 1988 the Authority began design of a medical building to be located on Pine Street in Macon. The Commission approved the plans for the building except for the placement of signs in connection with the building; the Commission subsequently approved all proposed signs except for a sign the Authority proposed to place on the roof of the building. In 1990 the Commission amended section 25.04 of the Comprehensive Land Development Resolution for the City of Macon and Bibb County, Georgia, to provide that roof signs are not permitted in any of the Commission’s zoning districts. Relying on Macon Assn. &c. v. Macon-Bibb County Planning &c. Comm., 252 Ga. 484 (314 SE2d 218) (1984), the trial court held that the Authority was subject to the rules and regulations of the Commission and upheld the Commission’s ruling concerning the placement of the roof sign on the medical building. We reverse.

In Macon Assn, the Georgia Supreme Court held that a nonprofit corporation performing governmental services is not immune from local zoning regulations absent a clear expression of the legislature that such immunity be extended to the entity in question. Id. at 490 (6). In reaching this result, the court relied on the Statutory Guidance Test, one of four traditional tests which has been applied to determine the immunity issue, and specifically rejected the newer balancing-of-interests test on the basis that it is too nebulous and judicially unmanageable. Applying this holding to the case at hand, the trial court reasoned that because the legislation creating the Authority contained no clear expression granting the Authority immunity from zoning regulations, that it, like the nonprofit corporation in Macon Assn., should not be immune from the rules and regulations of the local zoning commission.

We do not believe, however, that the holding in Macon Assn. mandates the result reached by the trial court in the case at bar. Although the court in Macon Assn, held that the nonprofit corporation in that case was not entitled to immunity from local zoning regulations, it noted that the general rule is that a “a state government and its agencies are immune from operation of local zoning regulations.” Id. at 488. “In Georgia, it has been held that property owned by the state or county, and used for a governmental purpose, is exempt from municipal zoning regulation . . . .” Id. at 489 (4). “A county may use property it owns for a necessary governmental purpose, even though such use violates a zoning ordinance.” Board of Commrs. &c. v. Chatham Advertisers, 258 Ga. 498, 499 (1) (371 SE2d 850) (1988), and cits.

The question then is whether a hospital authority is a governmental entity such that it should be entitled to immunity from local zoning regulations. Although the question of a hospital authority’s immunity from zoning regulations apparently has never been addressed by the appellate courts of this state, the courts have, on several occasions, considered whether a hospital authority is a governmental entity. For example, in Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39 (273 SE2d 841) (1981), the court, after reviewing the nature of a hospital authority, “determined that it is a ‘governmental entity,’ [cit.]” and thus could not maintain an action for libel. Id. at 46. Likewise, in Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978) the court determined that hospital authorities are state and county instrumentalities and therefore not subject to the applicable definition of employer under the Workers’ Compensation Act. More recently, the Court of Appeals addressed the question of the status of a hospital authority in Hospital Auth. &c. v. Litterilla, 199 Ga. App. 345 (404 SE2d 796) (1991), rev’d on other grounds, 262 Ga. 34 (413 SE2d 718) (1992). After reviewing the judicial history on the issue “and considering the enabling language under which the Authority was created and operates,” id. at 347, the court concluded that hospital authorities established pursuant to the Hospital Authority Law are entitled to the defense of governmental immunity, except to the extent that such immunity has been waived. As the court, quoting Cox Enterprises, supra noted, “ ‘ [f] actors tending to establish the Authority’s governmental nature include that it is a creature of statute; that it is defined as a ‘public body corporate and politic’ . . .; that its Board is appointed by the governing body of the relevant political subdivision or subdivisions; that it is tax exempt; that it is deemed to exercise public and essential governmental functions; that it may exercise the power of eminent domain; that i[t] receives tax revenues; and that the governing bodies of the relevant political subdivisions have a role in determining the disposition of its property upon dissolution.’ [Cit.]” (Emphasis omitted.) Hospital Auth., 199 Ga. App. at 347.

We agree with the court in Litterilla that a hospital authority such as the one in the case at bar is a governmental entity and as such is entitled to those immunities traditionally enjoyed by state and county governments and their agencies and instrumentalities. One of these immunities is the immunity from local zoning regulations when such an entity is in the exercise of its governmental functions. Such is the situation in the case at hand. Consequently, the trial court erred in finding that the Authority was subject to the rules of the Commission concerning the placement of roof top signs.

Decided May 5, 1992

Reconsideration denied July 1, 1992

Sell & Melton, Edward S. Sell III, John D. Comer, Jeffrey B. Hanson, for appellant.

O. Hale Almand, Jr., Roy W. Griffis, Jr., for appellees.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0545.
    HOWARD v. THE STATE.
    (420 SE2d 594)
   Birdsong, Presiding Judge.

Hack Howard was tried before a jury for three counts of burglary, involving theft of cash, checks and office equipment from a law office in Clarke County. He was found guilty of one count and acquitted of two counts. Appellant contends the trial court erred by refusing to charge the jury on impeachment of a State’s witness by proof of felony convictions, unless appellant introduced certified copies of the convictions. He contends he should not have been required to introduce certified copies of the convictions, because the State’s witness admitted her conviction on direct examination, and he contends that as the result of this ruling that he was required to introduce the “best evidence” of the witness’ convictions, he was compelled to alter his trial strategy of not putting up evidence so as to reserve the right to make an opening and closing final argument, under OCGA § 17-8-71, and he was thus unable to rebut the State’s closing argument which materially mischaracterized the evidence as to the only burglary of which he was found guilty. Appellant also contends the evidence was insufficient to support the verdict. Held:

1. To impeach a witness by a prior conviction, the conviction must be proved by the record of the conviction itself. O’Toole v. State, 258 Ga. 614, 616 (4) (373 SE2d 12); Mincey v. State, 257 Ga. 500, 501 (2) (360 SE2d 578); Ledesma v. State, 251 Ga. 885, 888 (4) (311 SE2d 427); Timberlake v. State, 246 Ga. 488, 499 (6) (271 SE2d 792). This is really an application of the best evidence rule. Moret v. State, 246 Ga. 5, 6 (268 SE2d 635); Timberlake, supra. The certified copy of a conviction is primary evidence, as opposed to secondary evidence, and is the best proof. See OCGA §§ 24-5-1; 24-5-2. These cases generally involved the contention that an admission by a witness of a felony conviction on cross-examination will dispense with the rule, or a contention that a party should be allowed to establish such a conviction by cross-examination. In this case, appellant contends the rule does not apply because the State proved the conviction by direct questioning of the witness.

Although the “best evidence” rule in this context may be waived where no objection is raised (see O’Toole, supra at fn. 2), a party does not waive it by merely eliciting some information related to a conviction. In general, it is not sufficient to establish the conviction by questioning the witness, because “the question itself can be prejudicial even though a negative answer be truthful.” Timberlake, supra at 499. So, if convictions of crimes of moral turpitude are to be proved against a witness, they must be provided by the highest form of proof and not by insinuation, suggestion, or innuendo. The best evidence rule in this context is therefore not one which applies only in the absence of “any evidence” or slight information, and it is not a rule which applies only if no one has “opened the door,” (see Mincey, supra), but it applies in the absence of a definite waiver of the requirement to prove the fact by the “best evidence.” See O’Toole, supra.

In this case the State’s attorney asked the witness: “You were just sentenced on forgery cases, is that right?” and “When you were sentenced did anybody from my office . . . say anything to you about testifying at a trial?” This questioning did not properly establish the fact of convictions of a crime of moral turpitude, by admission in open court or otherwise, and therefore was not sufficient to substitute for the best evidence and was not a waiver of that proof. See O’Toole, supra. Moreover, the record in this case proves the deficiencies of this sort of questioning as to a substitute for the best evidence, for it shows that appellant was in fact allowed to cross-examine the witness as to her convictions, but the witness was unable to recall whether “what [she] plead guilty to were. primarily forgery charges,” and whether she also plead guilty to a charge of theft by taking. In these circumstances, appellant could not get the truth about the witness’ convictions before the jury, except by the introduction of the records of conviction themselves.

The requirement that appellant introduce the best evidence of certain evidence he seeks to admit does not amount to depriving the criminal defendant of a due process constitutional right and is not cause to reverse a valid conviction, although it has the effect of not allowing the defendant the right to open and conclude closing argument under OCGA § 17-8-71, because the right to open and conclude closing argument is the constitutional right of the State. Yeomans v. State, 229 Ga. 488 (192 SE2d 362); Harper v. State, 166 Ga. App. 797 (305 SE2d 488). It is not a right of the defendant, but is only a privilege, or a compensation so to speak, which is given when he chooses not to introduce evidence. Hargrove v. State, 117 Ga. 706 (45 SE 58). The criminal defendant of course has no burden of proof and no obligation to introduce evidence, and the fact that he has a right to introduce evidence does not allow him both to introduce evidence and to claim a right to open and conclude closing argument; and the particular reason he chooses to invoke his right to introduce evidence, including the necessity of rebuttal, does not control whether he may open and conclude argument under OCGA § 17-8-71. See, e.g., Cady v. State, 198 Ga. 99 (31 SE2d 38), cert. den., 323 U. S. 676 (65 SC 190, 89 LE 549), involving evidence of an affirmative defense.

Decided June 4, 1992

Reconsideration denied July 1, 1992.

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Accordingly, we find no error in the trial court’s refusal to charge the jury on impeachment unless appellant introduced the best evidence of the witness’ convictions, and no error is created by the fact that by introducing such evidence, appellant did not have a right to open and conclude closing argument.

We note that appellant could have objected to any improper argument made by the State as to facts which appellant claims were not in evidence and claims he did not have the right to rebut, but he elected not to do so.

2. The evidence as to the burglary for which appellant was convicted includes his knowledge that the victims kept a large amount of cash in a box in a drawer, which knowledge appellant gained from having been paid out of that box after mowing the lawn a few weeks before this burglary, and the fact that fingerprints matching appellant’s were found on molding of the window by which the burglar entered the building, as well as the State’s witness’ testimony that appellant gave her the check which she was arrested for having attempted to pass. We find the evidence sufficient to enable a rational trier of fact to find appellant’s guilt of the offense of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0601.
    CASTRO et al. v. CAMBRIDGE SQUARE TOWNE HOUSES, INC.
    (420 SE2d 588)
   Pope, Judge.

Plaintiffs/appellants appeal the denial of their motion to set aside the trial court’s order awarding defendant/appellee attorney fees and expenses of litigation pursuant to OCGA § 9-15-14.

1. Relying on Department of Transp. v. Franco’s Pizza & Deli., 200 Ga. App. 723 (5) (409 SE2d 281) (1991), plaintiffs argue the trial court lacked jurisdiction to award attorney fees and expenses of litigation arising out of the original appeal to this court. In Franco’s, the trial court awarded fees and expenses incurred in defending the appeal to this court. Id at 727. In setting aside the award we noted, inter alia, that “the trial court lacked jurisdiction over this case during the [appellate phase of the proceedings].” Id. at 728. Consequently, the plaintiffs correctly assert that OCGA § 9-15-14 provides no authority pursuant to which a trial court can award attorney fees and expenses of litigation for proceedings before our appellate courts, and that the trial court in this case was without jurisdiction to make such an award.

We disagree, however, that the award in this case must also be set aside inasmuch as we find the present case to be distinguishable from the situation in Franco’s. Both the trial court’s order and the transcript from the hearing in Franco’s made it clear that the award was for attorney fees and expenses incurred while the case was on appeal to this court. Although the court in this case, in reciting the basis of the award, did mention the fact of the appeal, the outcome of the appeal (affirmance of the trial court’s order granting summary judgment to defendant in accordance with our Rule 36), and the fact that plaintiffs’ counsel requested oral argument but then failed to appear without notice to the court or opposing counsel, the court at no time stated that the award was for fees and expenses incurred during the appeal. At most the award in this case could be construed to include an award for both fees and expenses during the lower court proceedings and the subsequent proceedings before this court. However, in the hearing on the plaintiffs’ motion to set aside, the trial court sought to clarify any ambiguity in the award by stating that the award did not include fees and expenses arising out of the appeal. The court also noted that it was aware that it did not have the authority to make such an award, that it had never made such an award in the past and that had it intended to make such an award in this case it would have increased the amount awarded by $3,000 or $4,000.

Plaintiffs argue, however, that the trial court’s award necessarily included fees incurred during the appellate proceedings because the award was for approximately $25 more than the defendant represented to the court that it had incurred in defending the action in the lower court. However, the court in its order plainly stated that its award was for what it considered reasonable fees and expenses, not what the defendant stated it had incurred.

Decided May 29, 1992

Reconsideration denied July 1, 1992

Sonja L. Salo, McKinney & Thompson, Jan W. McKinney, for appellants.

Carter & Ansley, Robert A. Barnaby II, Rebecca I. Jones, David Atkinson, for appellee.

Plaintiffs also suggest on appeal that the trial court was without authority to “amend” its order after the expiration of the term during which it was entered. However, our reading of the transcript of the hearing on plaintiffs’ motion to set aside does not support plaintiffs’ argument that the trial court improperly intended to amend its previous order, but rather shows that the court, by its pronouncements during the hearing, merely intended to clarify its award to make it clear that the award did not include any prohibited amounts. The fact that the trial court at some point during the hearing may have used the word amend does not persuade us otherwise, as the trial court’s intent to clarify its order was abundantly clear from the whole of the court’s remarks. The court did have the authority to clarify its previous order. See Opatut v. Guest Pond Club, 254 Ga. 258 (5) (327 SE2d 487) (1985); Davis v. Davis, 250 Ga. 206, 207 (296 SE2d 722) (1982). In sum, we find no basis to reverse the award of attorney fees and expenses in this case.

2. Defendant has requested in its brief that we impose damages against plaintiffs pursuant to OCGA § 5-6-6. We cannot agree, however, that plaintiffs have appealed the denial of their motion to set aside solely for purposes of delay. Thus, we find that this is not a proper case for the imposition of damages under OCGA § 5-6-6.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A91A0955, A91A0956.
    GARAMENDI v. RYLES (two cases).
    (420 SE2d 633)
   Carley, Presiding Judge.

The Mission Companies, a group of insurance companies having their principal place of business in California, became insolvent. Appellant, in his capacity as the California Insurance Commissioner, was appointed as the domiciliary liquidator. Appellee, in his capacity as the Georgia Insurance Commissioner, was appointed as the ancillary receiver, A dispute arose as to whether it is appellant or appellee who has title to Mission Companies’ Georgia assets and, in the instant ancillary receivership proceedings, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and entered an order vesting title in appellee. Appellant appeals from those orders and the two appeals are hereby consolidated for appellate disposition in this single opinion.

1. Under common law, it is appellant, and not appellee, who would hold title to Mission Companies’ Georgia assets. Appellant, “acting as receiver for a corporation in the State of [California], is acting by authority of the statutes of [California], as well as the authority with which he is clothed by the decree in the [California] court designating him as receiver. By the [California] statute he is clothed with the same authority that the [Mission Companies] had before [they were] adjudged insolvent and the receiver appointed.” Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 186 (5) (190 SE 552) (1937). “[I]n opposition to the laws of [California], [appellee] can [not] seize the assets of the defunct corporation [s] of [California] which are located in Georgia, and apply them in satisfaction of the claims of citizens of Georgia.” O'Malley v. Wilson, 182 Ga. 97, 107 (2) (185 SE 109) (1936). Contrary to appellee’s contentions, “it is not made to appear that justice can not be done in the State of [California], or that [appellant], a State Officer in [California], will unjustly discriminate against the creditors of the insurance compan [ies] who are citizens of Georgia.” O’Malley v. Wilson, supra at 112 (2). Under California law, appellant is “deemed to be a trustee for the benefit of all creditors and other persons interested in the estate of the [Mission Companies].” (Emphasis supplied.) Cal. Ins. Code § 1057. Although California law does provide a preference for claims for certain expenses and taxes, all other claims, including those of Georgia creditors, are given the same priority. See Cal. Ins. Code § 1033. Compare Bailey v. State of Fla., 411 S2d 269, 272 (Fla. App. 1982).

Although common law favors appellant over appellee, the Uniform Insurers Liquidation Act, former OCGA § 33-37-40 et seq., was in effect in this state at the times relevant to this appeal. Appellee urges that this statutory enactment supersedes the common law and is controlling. Under former OCGA § 33-37-43 (c), title to the Mission Companies’ Georgia assets would vest in appellant if California was a “reciprocal state.” Since, according to appellee, California is not a “reciprocal state,” he urges that title to the Mission Companies’ Georgia assets would vest in him by default.

Appellee’s construction of the former Uniform Insurers Liquidation Act is erroneous. “[E]ven [if California is] not ... a reciprocal state, it [is] still appropriate to extend comity to [California] by allowing its insurance commissioner, acting as a statutory liquidator, to [acquire title to the assets of the Mission Companies and to distribute them according to California law]. [T]he Uniform Act nowhere prohibits such a privilege to a non-reciprocal state and . . . the purpose of the act was to ‘enlarge rather than to contract the areas for the operation of interstate comity.’ Given that even under common law, [Georgia] courts had extended comity to delinquency proceedings in foreign states, ... it [is] appropriate to do so in [this] case ... as well.” Twin City Bank v. Mut. Fire &c. Ins. Co., 646 FSupp. 1139, 1141 (S.D.N.Y. 1986). Thus, the former Uniform Insurers Liquidation Act did not supersede the common law of Georgia. It would be anomalous to construe a statute, intended to broaden interstate comity, as having the effect of limiting the interstate comity which would otherwise exist under common law. Since, as previously discussed, the common law would recognize appellant’s title to Mission Companies’ Georgia assets under the existing circumstances, it follows that the trial court erred in granting summary judgment in favor of appellee and in denying appellant’s motion for summary judgment as to this issue. Accordingly, the order vesting title in appellee to the Mission Companies’ Georgia assets must be reversed with direction that an order vesting title in appellant be entered.

2. Appellant also raises on appeal an issue concerning his right to make claims on behalf of certain Georgia creditors of the Mission Companies with regard to the fund deposited by the Mission Companies with appellee pursuant to OCGA § 33-3-9. Apparently the contention is that those Georgia creditors did not receive the requisite notice from appellee mandated by former OCGA § 33-37-16 (b) and that the trial court erred in denying appellant’s motion for summary judgment as to this issue.

If appellee did not comply with the former statutory notice provision, the Georgia creditors would not be barred by their failure to have filed timely claims with appellee. Georgia Insurers &c. v. Moore, 183 Ga. App. 66 (357 SE2d 823) (1987). If, on the other hand, appellee did comply with the statutory notice provision and the Georgia creditors thereafter elected not to file timely claims with him but elected instead to file claims directly with appellant, their claims against appellee would be barred. A review of the record demonstrates that genuine issues of material fact remain as to appellee’s compliance with the statutory notice provisions of OCGA § 33-3-9. Accordingly, the trial court did not err in denying appellant’s motion for summary judgment as to this issue.

Judgment affirmed in part and reversed with direction in part.

Pope and Johnson, JJ., concur.

Decided July 1, 1992.

Alston & Bird, Robert D. McCallum, Jr., Geoffrey H. Cederholm III, James C. Grant, for appellant.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Mark H. Cohen, Senior Assistant Attorney General, Thomas A. Cox, Jr., Assistant Attorney General, William W. Calhoun, Staff Attorney, Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, James T. Budd, for appellee.


author: Andrews, Judge.

text:
    A92A0036.
    MATTOX v. THE STATE.
    (421 SE2d 97)
   Andrews, Judge.

Mattox was tried and convicted of armed robbery and appeals.

Mattox was indicted for a robbery, as was Benny Smith, which was committed on January 1, 1990. Evidence at trial was that on that date at about 5:00 a.m., a McDonald’s restaurant in Cobb County was robbed by two black males, who had previously been seen sitting in a white car with “deep-dish wheels” parked behind the restaurant. One of the men jumped onto and over the counter and ordered all the employees into a room at the back of the restaurant, while the other man fired shots at a security device over the safe. The restaurant manager opened the safe and helped the man behind the counter put all the money into a payroll bag and the robbers escaped in the white car.

The police were called to the scene and a description of the men and their car was obtained. Shoe prints lifted from the counter were later determined to match Smith’s shoes.

There was also evidence at trial that on January 20, 1990, around 3:00 a.m., police apprehended two black males in a wooded area behind a Burger King restaurant in Douglas County after receiving a suspicious person call. Mattox’s car, a white Chrysler Cordoba with deep-dish wheels, was parked at a restaurant next to the Burger King. When questioned by police, Mattox stated that he worked at Grady Hospital and was just out walking in the woods. He was arrested and charged with loitering and prowling, although evidence of these specific charges was not introduced at trial. His car was impounded and a search made during which a small handgun holster, a hunting knife and a pair of pliers were found in the trunk; and a box of ammunition was found in the glove compartment. Shortly after Cobb County police learned of the arrests in Douglas County of Mattox and of his companion, Smith, they charged them with the armed robbery of Me-Donald’s.

As the result of a plea negotiation, Smith testified for the State. He stated that he committed the armed robbery with Mattox on January 1, 1990; that he grabbed a young woman as she was entering the restaurant; that Mattox entered the establishment carrying a gun; that Mattox fired two shots at the security camera; and that they took the money and divided it.

Mattox also testified and stated that on New Year’s Day he was celebrating until about 3:30 a.m. and that he spent the rest of the night with a woman. He stated that he was with Smith in Douglas County on January 21, that Smith was drunk and that he was in the woods because he was urinating.

Because Mattox denied being with Smith on January 1, the state cross-examined him about accusing Smith of reporting him to the authorities, which Mattox disavowed. The state called a rebuttal witness who testified that while Mattox was in a holding cell across from Smith, he looked at Smith and told him “yeah, you see what they do with snitches.”

1. In two separate enumerations, Mattox contends that the trial court erred in allowing the state to allow evidence of his arrest in Douglas County on January 21. He argues that the trial court erred in allowing evidence of that crime as a similar transaction and that this evidence improperly placed his character in issue. These enumerations are without merit.

First, Mattox misunderstands the nature of the court’s ruling. Before the trial, the court held a hearing in which it determined that evidence regarding the hour of the arrest and the fact that Mattox and Smith were together in the same type of vehicle was admissible, but that evidence regarding the specific crimes was not.

The evidence concerning events of January 21 was presented primarily through the testimony of Officer Newborn, a Douglas County police officer who responded to the suspicious person call. Newborn testified regarding the events that led to Mattox’s arrest in Douglas County where he was held for different charges and then charged with the Cobb County armed robbery. The officer testified that he had seen Mattox and Smith, walking around behind a Burger King at 3:00 in the morning. Mattox told him that he had been driving a white Chrysler Cordoba. Newborn stated that he eventually placed Mattox under arrest, but there was no testimony regarding any charges other than the armed robbery with which Mattox was charged.

Pretermitting the question of whether the testimony regarding the Douglas County incident was admissible because of a logical connection between the crimes which would tend to prove identity, notice, plan, scheme, bent of mind and course of conduct, see Belcher v. State, 201 Ga. App. 139 (1) (410 SE2d 344) (1991), we find that the evidence here was relevant and admissible in that it showed the circumstances surrounding Mattox’s arrest. The incident in Douglas County was “part of the circumstances surrounding the accused’s arrest. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.” (Citations and punctuation omitted.) Coney v. State, 198 Ga. App. 272, 273-274 (3) (401 SE2d 304) (1991). The incident in Douglas County was clearly relevant to the issues on trial and we find no error in allowing this evidence.

2. Mattox’s next enumeration of error is that the trial court erred in allowing evidence of items taken from his car when it was impounded on January 21, because this evidence also improperly placed his character in issue.

“We find no merit in this enumeration. First, the record reveals that the objection appellant raised to the admission of this [evidence] was not on the ground raised here. A ground not raised by objection at trial cannot be raised for the first time on appeal.” (Citations and punctuation omitted.) Thomas v. State, 196 Ga. App. 88, 90 (3) (395 SE2d 615) (1990). Second, our review of the record does not indicate that the evidence of which Mattox complains improperly placed his character in issue.

In his brief, Mattox argues that the inventory search was invalid, but this argument is not specifically enumerated as error and will not be considered here. See Worley v. State, 201 Ga. App. 704 (2) (411 SE2d 760) (1991).

3. In his second enumeration, Mattox asserts that the trial court erroneously permitted the prosecutor to offer an involuntary statement he made to the officer who arrested him without first holding a hearing outside the presence of the jury. Pretermitting the issue of whether Mattox’s answer amounted to an involuntary custodial statement, defense counsel made no objection to the testimony when it was elicited. “ [I]t is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court.” Norwood v. State, 199 Ga. App. 536 (405 SE2d 526) (1991).

4. In his final enumeration, Mattox contends that the trial court erred in allowing a witness to testify whose name was not provided to the defense. Mattox contends that the testimony was not rebuttal testimony, as the State claims, and thus was improperly admitted. This contention is not supported by the trial transcript, in which Mattox' unequivocally denied calling Smith a snitch. The witness was called to directly rebut this testimony, and “ ‘this court has repeatedly ruled that calling an unlisted witness in rebuttal is not error and does not violate § 17-7-110. (Cits.)’ Forney v. State, 255 Ga. 316, 318 (2) (338 SE2d 252) (1986). Consequently, this enumeration provides no basis for reversal.” Kelly v. State, 197 Ga. App. 811, 816 (7) (b) (399 SE2d 568) (1990).

Decided July 1, 1992.

Robert H. Alexander III, for appellant.

Thomas J. Charron, District Attorney, J. Richard Edwards, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Mattox’s claim that the testimony improperly placed his character into issue was not raised at trial and thus he has waived appellate review on this ground. Thomas, supra.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A92A0216.
    McDANIEL v. THE STATE.
    (420 SE2d 636)
   Cooper, Judge.

Appellant, Danny McDaniel, was convicted by a jury of two counts of child molestation, one count of aggravated sodomy and one count of aggravated child molestation. He appeals from the judgment entered on the verdict and from the denial of his motion for new trial.

The acts occurred while the appellant and his wife and child were living with the seven-year-old victim and her family in' a mobile home. The victim testified that on three nights while she was sleeping, appellant “stuck his wrong spot in [her] butt.” Using an anatomically correct male doll, the victim indicated that the penis area of the doll was what she referred to as appellant’s “wrong spot.” The victim testified that she did not see appellant the first two times but that she knew it was him because no one else in the house would do that to her. The victim stated that the third time appellant bothered her she saw him. The victim’s mother testified that the victim told her that “Danny” had been “messing” with her wrong spots. Upon further questioning, the victim stated that “Danny” had pulled her panties down and tried to put his wrong thing in her. The next morning, the victim’s mother went to the police department, made a complaint of child molestation against appellant, and subsequently took out a warrant against appellant for child molestation.

1. Appellant first contends that the trial court erred in admitting the written statement of appellant into evidence. Appellant voluntarily went to the police station and told an officer that he wanted to talk about the charges against him. After the officer advised appellant of his rights, appellant indicated that he understood his rights by signing a waiver of rights form. The officer interviewed appellant and at the conclusion of the interview, prepared a written statement for appellant to sign. The statement read: “What [the victim] said I did, I did. I might have been drunk.” Appellant reviewed the statement and signed it without making any corrections. The trial judge held a Jackson-Denno hearing outside the presence of the jury to determine the voluntariness of appellant’s statement and found that the statement was freely and voluntarily made. “A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will withstand attack on appeal unless they are clearly erroneous. [Cit.]” Walker v. State, 186 Ga. App. 765, 766 (2) (368 SE2d 547) (1988). We find no error with the trial court’s admission of the statement. Appellant also contends that the written statement should not have been allowed to go out with the jury. However, the record reflects that appellant reviewed the exhibits prior to their submission to the jury and voiced no objection. Accordingly, this issue has not been preserved for our review. Pryor v. State, 198 Ga. App. 588 (2) (402 SE2d 338) (1991).

2. In his second enumeration of error, appellant contends that the trial court erred in not granting a mistrial when the victim testified as to a fourth incident of child molestation. Appellant objected and moved for a mistrial on the grounds that the indictment did not include a fourth incident. The trial judge sustained the objection and instructed the jury to disregard any statement about an alleged fourth incident and to give it no consideration whatsoever. The trial judge asked the jurors if any of them could not follow those instructions, and none of the jurors indicated that they could not. The trial court then asked the jurors to raise their hands if they could follow the court’s instruction, and all of the jurors raised their hands. “ ‘When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from consideration of the jury under proper instructions.’ [Cit.] Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. Id.” Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991). We find that the curative instructions were an adequate corrective measure to withdraw the victim’s testimony as to a fourth incident of child molestation from the consideration of the jury and that the trial judge did not abuse his discretion in denying the motion for mistrial. Tyler, supra at 687.

3. Appellant challenges the sufficiency of the evidence in his'final enumeration of error. In light of the victim’s testimony and appellant’s written statement, we find that the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided July 1, 1992.

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

Judgment affirmed.

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