text:
    A91A1399.
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. COLEY.
    (411 SE2d 553)
   Beasley, Judge.

Employer/self-insurer Liberty National Life Insurance Company was granted discretionary appeal from the superior court’s affirmance of an award of the State Board of Workers’ Compensation. The Board had adopted in part an award by the ALJ directing Liberty to pay a $25,000 lump sum penalty pursuant to OCGA § 34-9-221 (f) and Board Rule 221 (a) and (f) in favor of employee/claimant Coley. Liberty contends that the 20 percent penalty award as affirmed by the lower court is contrary to fact inasmuch as payment was received within 20 days after becoming due, and that it is contrary to law inasmuch as the Board held that an employer/insurer in making payment must consider such things as bank holding periods for negotiable instruments, thereby altering the due date for payment provided by law.

Coley suffered compensable injuries in 1986 while employed by Liberty. On December 5, 1989, the Board approved and made its order a stipulation and agreement between the parties. In full and complete satisfaction of any and all of Coley’s claims, Liberty agreed to pay a lump sum of $125,000 (% to Coley, Vs to Coley’s attorney), with one year of open medical benefits for any further treatment.

On Thursday, December 21, Southern Risks Services, Inc., the third-party administrator for payment of benefits by Liberty, mailed the two settlement checks by UPS Next Day Air to Liberty’s attorney in Savannah for forwarding to Coley’s attorney. Liberty became aware that the checks would not arrive the next day because of a winter storm approaching the Savannah/St. Marys area. Consequently, Liberty had Southern Risks issue duplicates of the checks and send them directly by Federal Express to Coley’s attorney in St. Marys. One of Liberty’s attorneys personally delivered the duplicate checks to a Federal Express office and was assured that the checks would be delivered to Coley’s attorney the following day, Saturday, December 23. When Liberty’s attorney called Federal Express on Saturday, he was informed that the duplicate checks could not be delivered because the roads to St. Marys were closed. The attorney considered having a third set of checks issued and then personally driving them to St. Marys but Savannah police informed the attorney that all roads leading in and out of St. Marys were closed and extremely hazardous. Christmas Day, Monday, December 25, was the twentieth day after issuance of the stipulation and agreement. Coley’s attorney received the checks the next day, Tuesday, December 26, at 4:06 p.m.

Coley claimed that the distances involved, the late hour of delivery, and bank holding periods prevented her from negotiating the checks on December 26 so that she did not receive timely payment, thus entitling her to the statutory penalty.

The ALJ and Board reasoned as follows. The method of payment of benefits is plainly set out in Board Rule 221 (a). Dykes v. Superior Elec. Contractors, 179 Ga. App. 793 (348 SE2d 120) (1986), requires that payment of benefits be received by a claimant within 20 days of an award. If an employer/insurer wishes to pay benefits by negotiable instrument, it must be done in time for the employee to receive payment, i.e., actually negotiate the instruments within the 20 days. The employer/insurer was required to take into account bank holding periods, etc., in calculating the time required in order for the claimant to receive timely payment.

1. The general computation of time provision of OCGA § 1-3-1 (d) (3) is applicable to certain proceedings under the Workers’ Compensation Act. See, e.g., Leavell v. Life Ins. Co. of Ga., 165 Ga. App. 770 (302 SE2d 623) (1983). It is the starting point for computing the 20-day mándate of OCGA § 34-9-221 (f). See, e.g., Dykes, supra (physical precedent). The twentieth day was Christmas Day, so payment of the settlement would have been timely on December 26. OCGA § 1-4-1.

2. The question is whether receipt of the checks by Coley’s attorney on December 26 constituted payment within the contemplation of OCGA § 34-9-221 (f) and Board Rule 221 (a) and (f).

In the award, the ALJ cited and quoted former Board Rule 221 (a), which read: “Mail or deliver payment to the address specified by the claimant or the address of record. Make payment in cash or negotiable instrument in time for claimant to receive payment when due at a Georgia depository convenient to the claimant’s address of record, if in Georgia.” The reliance on Dykes for interpreting the former rule so as to require the payor to take into account extraneous factors over which it has no control is misplaced.

First, Dykes is physical precedent only and is not binding. Second, although Dykes concludes that “[t]he plain language of OCGA § 34-9-221 (f) and Rule 221 (a) and (f) mandates that payment of benefits be received by a claimant within 20 days of an award,” id. at 794 (1), it makes no express or implied determination that receipt of negotiable instruments, which is an acceptable method of payment under the rule, does not constitute receipt of payment until actual negotiation. Requiring the payor to calculate into the 20-day payment period such factors as weather prognoses, banking hours and regulations, and the claimant’s or attorney’s cooperation in negotiating the instruments within the allocated time frame, defies reason and equity and effectively shortens the period the statute specifies.

The Board’s later revision of the rule supports this interpretation of the earlier rule with respect to time and method of payment. By the time of the ALJ’s decision on July 17, 1990, Board Rule 221 (a) had been revised, effective July 1,1990, to read quite clearly: “Mail or deliver payment to the address specified by the employee or the address of record. The payment shall be considered paid when mailed. Make payment in cash or negotiable instrument so that the employee can receive payment the day of receipt at a Georgia depository convenient to the employee’s address of record, if that address is in Georgia. . . .” (Emphasis supplied.)

Decided October 15, 1991

Reconsideration denied October 24, 1991

Oliver, Maner & Gray, I. Gregory Hodges, Patricia Tanzer, for appellant.

Eddings & Berry, Phillip M. Eddings, for appellee.

The ALJ’s interpretation as adopted by the Board and affirmed by the court, and the consequent assessment of a 20 percent statutory penalty against Liberty, was error as a matter of law.

Judgment reversed.

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


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A91A0845.
    HALL v. THE STATE.
    (411 SE2d 777)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of two counts of child molestation against his daughter. He appeals from the judgments of conviction and sentences entered by the trial judge on the jury’s guilty verdicts.

1. “Although the evidence was in conflict and depends largely on the credibility of the [ten]-year-old victim, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict. [Cit.] We find that the evidence presented was sufficient to authorize the jury to find appellant guilty of [both counts of] child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Hall v. State, 196 Ga. App. 523, 524 (1) (396 SE2d 271) (1990). See also Coleman v. State, 194 Ga. App. 404 (1) (391 SE2d 15) (1990).

2. The trial court sustained the State’s objections to certain questions propounded by appellant to several defense witnesses and these evidentiary rulings are enumerated as error. Our consideration is necessarily limited to those instances wherein appellant made a proffer of the answers that he had expected to elicit. See Lee v. State, 237 Ga. 179, 180 (3) (227 SE2d 62) (1976).

Appellant proffered the testimony of two witnesses that, based upon their personal observations, the victim had not exhibited the “unusual and inappropriate behavior” typical of a sexually abused child. The State did not object to the expert qualifications of these witnesses to testify to the typical behavior of sexually abused children or to their competency to testify to whether the victim in the instant case evidenced such typical behavior. Instead, the State raised only an objection to relevancy and asserted that it would not “be allowed to put a witness on the stand testifying that [the victim] does have the traits of a molested child[,] so [it was] going to object to testimony that either directly or indirectly . . . [the victim] does not have the characteristics. . . .” The trial court sustained the State’s objection to the proffered testimony of these two witnesses.

Appellant was not attempting to elicit a direct opinion on the ultimate issue of whether the victim had been molested. Compare Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991); Sims v. State, 260 Ga. 782, 783 (4) (399 SE2d 924) (1991); Allison v. State, 256 Ga. 851, 853 (6) (353 SE2d 805) (1987). Likewise, appellant was not attempting to elicit a direct opinion as to whether the victim had lied about having been molested. Compare Jennette v. State, 197 Ga. App. 580, 581 (3) (398 SE2d 734) (1990). Appellant was simply attempting to elicit testimony as to whether the victim had exhibited that behavior which, in the opinions of the witnesses, was typically displayed by a sexually abused child, not an opinion, based upon the victim’s behavior, as to whether she had actually been molested. The “typical” behavior of sexually abused children is not within the ken of the average juror and is, therefore, a proper matter for expert testimony. Holsey v. State, 199 Ga. App. 782, 784 (7) (406 SE2d 127) (1991). Testimony merely as to whether the victim did or did not exhibit this “typical” behavior would not invade the province of the jury, for the question of whether, notwithstanding her behavior, the victim was or was not molested would remain exclusively for jury resolution. The testimony would simply be available for the jury to accept or reject for consideration in its determination of the ultimate issue.

Thus, contrary to the State’s objection in the trial court, it would not be precluded from introducing the testimony of a duly qualified expert that the victim did exhibit the “typical” behavior of sexually abused children. That the State was not prepared to introduce such testimony is no basis for preventing appellant from introducing relevant testimony in his defense. The State may question the expert qualifications of a defense witness who seeks to testify as to the “typical” behavior of sexually abused children. See Sims v. State, supra at 783 (3). In the instant case, however, the State raised no objection to the expertise of appellant’s witnesses and the trial court erred in sustaining the State’s objection to the relevancy of their proffered testimony. “[T]he witnesses] [were] not [to be] asked on direct examination whether [they] believed the child had been sexually abused. . . . Rather, [they were to be] asked whether the child exhibited behavioral characteristics consistent with those of a child who had been sexually abused. This was a permissible subject for expert opinion testimony. [Cits.]” Holsey v. State, supra at 784 (7). Because we cannot say that this evidentiary error was harmless, appellant’s convictions must be reversed and a new trial held.

3. The trial court did not err in excluding testimony that appellant “picked the children up at school on time and he would attend all conferences asked of him.” This testimony obviously has no relevance to whether appellant had or had not committed the acts of child molestation and would not be admissible as evidence of his good character. OCGA § 24-2-2; Barrett v. State, 192 Ga. App. 705 (1) (385 SE2d 785) (1989).

Decided October 24, 1991.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

4. An enumeration of error predicated upon the trial court’s making of an allegedly improper comment in violation of OCGA § 9-10-57 presents nothing for review. “[A]ppellant made no objection in regard thereto at trial and is thus precluded from raising the issue on appeal. [Cit.]” Beadles v. State, 259 Ga. 519, 524 (3) (385 SE2d 76) (1989).

5. Appellant enumerates as error the trial court’s failure to sustain a hearsay objection to certain testimony. The record reveals, however, that other admissible evidence as to the issue was presented at trial without objection. Accordingly, the error, if any, in failing to sustain the hearsay objection was clearly harmless. See generally Hooten v. State, 256 Ga. 31, 33 (1) (343 SE2d 481) (1986).

Judgments reversed.

Beasley, J., and Judge Arnold Shulman concur.


author: Pope, Judge.

text:
    A91A1154.
    TERRELL v. THE STATE.
    (411 SE2d 779)
   Pope, Judge.

Defendant George Terrell appeals his conviction of theft by taking.

1. Defendant first argues he is entitled to a new trial because of reversible error in the charge to the jury. In the course of instructing the jury regarding the credibility of witnesses, the trial judge stated: “[Y]ou are by law made the exclusive judges of the credibility of the witnesses that have testified in this case, and in determining where the preponderance of the evidence lies, you have the right to take into consideration all the facts and circumstances surrounding the case; the witnesses’ manner and deportment [et cetera] . . . .” Defendant argues this charge incorrectly stated the burden of proof to be a preponderance of the evidence.

Prior to this portion of the charge, the trial court had given a thorough and complete charge on the proper burden of proof to sustain a conviction. Again, at the conclusion of the charge, the trial court stated that a guilty verdict should be returned “if you should believe beyond a reasonable doubt that the defendant did commit the crime as charged” but that a not guilty verdict should be returned “if you have a reasonable doubt as to his guilt . . . .” Thus, the jury was correctly charged regarding the necessary burden of proof. The language to which defendant objects was not given in the context of burden of proof but within that portion of the charge relating to credibility of witnesses. “This incorrect phrase within an otherwise correct statement of law could not have misled the jury where they had previously [and subsequently] heard the correct rule over and over again.” Leonard v. State, 146 Ga. App. 439, 444 (5) (246 SE2d 450) (1978). This case is materially distinguishable from Johnson v. State, 148 Ga. App. 702 (2) (252 SE2d 205) (1979), cited by defendant, in which this court reversed a conviction where the trial court had given two conflicting charges on burden of proof.

Decided October 24, 1991.

Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. Defendant also argues the trial court erred in denying his motions to challenge the array of the jury which were made orally, after the jury had been chosen, on the grounds that two separate comments made by the trial judge to prospective jurors before voir dire commenced were prejudicial. “Under OCGA § 15-12-162, a challenge to the jury array must be in writing. [Cit.] The requisite written challenge not having been filed, we do not consider this issue on appeal.” Sexton v. State, 189 Ga. App. 12 (2) (374 SE2d 824) (1988). Even though we need not consider this issue on appeal, nevertheless we note that the trial court instructed the jury to disregard and not to be prejudiced by one of the comments defendant argues was prejudicial to his client (that the delay in starting proceedings was because defendant was late in arriving at court). Thus, any prejudice to the defendant was corrected by this instruction. The other comment to which defendant took exception could in no way be construed as prejudicial because it consisted of instructing the jury that they should not allow themselves to be prejudiced against the defendant by the fact that defendant chose to exercise his right to complete the voir dire of the jury before commencing jury selection.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1203.
    A91A1658.
    KEMP v. THE STATE. JACKSON v. THE STATE.
    (411 SE2d 880)
   Pope, Judge.

Defendant Billy Wayne Kemp was convicted of trafficking in cocaine, possession of cocaine with intent to distribute and eluding the police. Defendant Mae Willie Jackson, Kemp’s sister, was indicted jointly with Kemp on the charge of trafficking in cocaine, was tried jointly with Kemp and was convicted of the lesser included offense of possession of cocaine. We have consolidated the two separate appeals for purposes of review.

Case No. A91A1203

1. Defendant Kemp argues the trial court erred in denying his motion for directed verdict. The motion was made in regard to the trafficking charge only. The evidence in support of the trafficking conviction shows, inter alia, a package was sent via Federal Express from Orange, California, to his sister, co-defendant Jackson, in Macon. Because the package emitted a strong odor of coffee, a substance drug dealers sometimes use to mask the odor of cocaine, the package was opened by drug enforcement authorities prior to delivery and approximately 500 grams of cocaine were discovered. The contents were repackaged and an undercover officer made the delivery to Jackson. She was arrested immediately after accepting the package and a warrant was obtained to search the house where the package was delivered. Kemp arrived at the scene of the delivery and confessed to Officer Scotty Sheppard that the package belonged to him and admitted the package contained cocaine and coffee. Kemp argues the confession was insufficient to support his conviction because it was merely circumstantial evidence and was consistent with the hypothesis that he was innocent and confessed to protect his sister.

Contrary to Kemp’s argument, far more than just the confession was offered as evidence of his guilt. As a result of the search of the house to which the package was delivered, a receipt was found indicating Jackson had wired $8,100 to Dennis Kemp, brother of both defendants, in Santa Ana, California, on March 31, 1990, just ten days before the package was shipped from California. On the evening the package was delivered and the search was conducted, California investigators, in cooperation with the Georgia authorities, also obtained a search warrant to search the California apartment of Dennis Kemp. One of the California investigators testified he answered the telephone at the apartment and had a conversation with an unidentified man. A tape recording of the telephone conversation was played to the jury, in which the caller related that a package had been delivered to his sister, she had been arrested and he had tried to convince an officer named Scotty Sheppard that the package belonged to him. During the taped telephone conversation, the caller discussed how “Dennis” could establish an alibi for the money and discussed the “eighty-one deal.” A second investigator got on the telephone and posed as Dennis, but the caller acknowledged he knew he was not speaking to his brother, Dennis. The caller also discussed how to avoid getting caught in future deliveries and the possibility of obtaining funds for defending a criminal charge. The California officer testified the recorded conversation lasted approximately 21 minutes. Telephone company records were introduced showing several calls were made to Santa Ana, California, from defendants’ mother’s house at the time the California investigator testified he received calls, including a 21-minute call. Moreover, the evidence of the separate earlier offense of possession of cocaine with intent to distribute was admissible to show bent of mind or course of conduct (see cases cited in Division 2, below). Thus, both direct and circumstantial evidence of trafficking in cocaine was presented to corroborate Kemp’s confession. See Souder v. State, 170 Ga. App. 413 (3) (317 SE2d 251) (1984). The trial court did not err in denying Kemp’s motion for directed verdict.

2. Kemp argues the trial court also erred in denying his motion to sever the trial of the trafficking charge, which related to events which allegedly occurred on April 12, 1990, from the trial of the charge for possession with intent to distribute, which related to events which allegedly occurred on January 5, 1990. These two crimes are sufficiently similar so that evidence of one would be admissible in a trial on the other for the purpose of showing bent of mind or course of conduct. See Christopher v. State, 190 Ga. App. 393, 396 (2) (379 SE2d 205) (1989). “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying [defendant’s] motion for severance. Johnson v. State, 257 Ga. 731, 733 (2c) (363 SE2d 540) (1988).” (Punctuation omitted.) Herring v. State, 191 Ga. App. 798, 799 (1) (383 SE2d 178) (1989). Accord Jones v. State, 168 Ga. App. 652 (1) (310 SE2d 17) (1983). Even though the offense of possession with intent to distribute occurred on a different date than the offense of trafficking, the evidence was sufficient to establish the two acts as a series constituting parts of a single scheme or plan. See Adams v. State, 178 Ga. App. 261 (1) (342 SE2d 747) (1986). Thus, the trial court did not abuse its discretion in joining the offenses for trial.

3. Kemp contends the trial court erred in admitting into evidence the tape of the telephone conversation between the California investigators and the caller to Dennis Kemp’s apartment because such a taping is illegal. Pursuant to both Georgia and federal law, the recording of the telephone conversation by the officer in this case was not unlawful because he was a party to the conversation. See 18 USC § 2511 (2) (c); OCGA § 16-11-66. Thus, the recording of the telephone conversation with the two California law enforcement officers was not obtained illegally and was admissible into evidence. See Orkin v. State, 236 Ga. 176 (2b) (223 SE2d 61) (1976). It was no less admissible because one of the officers falsely identified himself as Kemp’s brother, Dennis Kemp. See Teems v. State, 161 Ga. App. 339 (1) (287 SE2d 774) (1982). Moreover, it is obvious from the caller’s comments that he knew immediately the officer was not Dennis Kemp.

4. The trial court did not err in permitting jury members to review a written transcript of the recording of the telephone conversation for their assistance in understanding the recording as it was played. The court instructed the jury that the transcript was offered merely for their assistance in understanding the tape but cautioned that the tape, and not the transcript, constituted the evidence in this case. The transcript copies were collected immediately after the tape was played and were not allowed in the jury room during deliberation. Thus, no error is shown. See Lawrence v. State, 174 Ga. App. 788 (2) (331 SE2d 600) (1985); Dismuke v. State, 152 Ga. App. 188 (3) (262 SE2d 490) (1979).

5. Because the evidence showed the amount of cocaine contained in the package which forms the basis for the trafficking charge exceeded 400 grams, Kemp is subject to the mandatory sentence set forth in OCGA § 16-13-31 (a) (1) (C). We reject his argument that only the 25-year prison term contained in that statute is mandatory and that the trial judge failed to exercise his discretion in setting the amount of the fine. The statute clearly requires that the defendant “shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million.”

Case No. A91A1658

6. Defendant Jackson argues the trial court erred in denying her motion to suppress the evidence obtained in the search of her house, including the receipt for the money order sent by her to her brother in California (see Division 1, above), because the affidavit upon which the search warrant was issued was legally insufficient.

The record shows the affidavit submitted in support of the warrant was executed by an officer who surreptitiously witnessed the controlled delivery of the package to Jackson from inside the delivery van. While Officer Sheppard remained on the premises to secure Jackson’s house, the deposing officer left to obtain a search warrant. Although the officer testified at the hearing on the motion to suppress that he offered oral testimony to the magistrate detailing the manner in which the package had been intercepted, searched and delivered and that he had personally witnessed the delivery and arrest of Jackson, the search warrant states on its face that is was issued in reliance on the facts contained in the affidavit. The affidavit states only that the affiant had been told by an unidentified law enforcement officer that within two hours of the application for the warrant the unidentified officer had conducted a “controlled delivery of approximately 500 grams of cocaine” to the premises described in the application.

Decided October 24, 1991.

Craig N. Cowart, for appellant (case no. A91A1203).

Bennett T. Willis, Jr., for appellant (case no. A91A1658).

Willis B. Sparks III, District Attorney, Elizabeth K. Bobbit, Thomas J. Matthews, Howard Z. Simms, Assistant District Attorneys, for appellee.

“ ‘Probable cause means less than a certainty but more than mere suspicion or possibility. (Cit.) Mere speculation, rumor, or opinion is not enough; there must be reasonable grounds after inquiry. . . . The officer must place before the magistrate sufficient facts to enable the latter to make his own determination and not merely adopt the conclusions of the police officer.’ [Cit.]” Kelleher v. State, 185 Ga. App. 774, 777-778 (1) (365 SE2d 889) (1988). Although the affidavit in this case contains none of the rich detail known to the affiant in support of the belief that Jackson was engaged in the interstate trafficking of cocaine, it did contain more than a mere conclusory statement that the affiant believed probable cause existed to conduct a search. It provided the magistrate with the fact that a “controlled delivery” of contraband had been made to a person at the address to be searched. The term “controlled delivery” indicates the package was delivered in the course of commerce to a specific addressee under the surveillance of law enforcement officers. Thus, the affidavit contained more than mere conclusory opinions of the deposing officer; it contained assertions of fact from which the magistrate could find that a person at the premises to be searched had accepted delivery of a shipment of contraband. These facts, though minimal, permitted the magistrate to exercise his own independent discretion in concluding probable cause existed for the search and did not require the magistrate merely to rely on the opinion of the deposing officer. See Campbell v. State, 226 Ga. 883 (1) (178 SE2d 257) (1970).

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1223.
    ATTKISSON et al. v. CAVANAGH.
    (411 SE2d 786)
   Birdsong, Presiding Judge.

Jerry B. Attkisson, Faset J. Seay, and FJB Corporation appeal the grant of summary judgment to Lynn G. Cavanagh in her suit on a note. Appellants contend that the trial court erred by refusing to permit them to show by parol evidence that Attkisson and Seay did not sign the note in their individual capacities. The record shows that the note was signed on the bottom right portion of the note, as follows:

Decided October 24, 1991.

Craft & Spell, L. Penn Spell, Jr., for appellants.

Thompson & McClure, Douglas R. Thompson, for appellee.

“By: /s/ Jerry B. Attkisson

FJB CORPORATION Sec/Trea.

/s/ Jerry B. Attkisson

JERRY B. ATTKISSON /s/ Faset J. Seay FASET J. SEAY”

There is no question about FJB Corporation’s liability on the note, but Attkisson and Seay contend that they are not personally liable since they merely signed in their representative capacities as officers of the corporation. Thus, they assert that the trial court erred by refusing to allow them to explain their signatures on the note and by granting summary judgment to Cavanagh. Held:

The promissory note shows no ambiguity about the capacity in which Attkisson and Seay signed. Each put his signature over his typed name on the note without any indication that he signed in a representative capacity. Therefore, they had no entitlement to rely on parol evidence. Dennisson v. Lakeway Publishers, 196 Ga. App. 85, 86 (395 SE2d 366); Brice v. Northwest Ga. Bank, 186 Ga. App. 871 (368 SE2d 816); American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576 (200 SE2d 281). Moreover, their unqualified signatures on the note shows that they are liable. OCGA § 11-3-402 and 11-3-403 (2); Dennisson v. Lakeway Publishers, supra.

Accordingly, the trial court did not err by granting summary judgment to Cavanagh.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1251.
    PROFESSIONAL CLEANERS v. PHENIX SUPPLY COMPANY.
    (411 SE2d 781)
   Pope, Judge.

Plaintiff/appellee Phenix Supply Company sold dry cleaning products to defendant/appellant Professional Cleaners on an open account. Defendant fell behind in its payments to plaintiff on the account and the parties entered into an installment note which contained, inter alia, a provision for the payment of attorney fees. Plaintiff brought suit against Professional on the note and two other open accounts. On July 10, 1990, after the complaint was filed, plaintiff’s attorney sent a letter to defendant demanding payment of the principal and interest allegedly owed under the terms of the installment note. This letter also provided that defendant would be relieved of its obligation to pay attorney fees under the terms of the note if it paid the principal and interest “within ten (10) days from the daté of this letter . . . .”

Plaintiff filed a motion for summary judgment, along with affidavits and exhibits, including the July 10, 1990 demand letter, on October 30, 1990. Defendant responded, admitting its liability under the note and account. Defendant contended, however, that plaintiff was not entitled to attorney fees because its demand letter of July 10, 1990 was insufficient as a matter of law because it stated that in order to avoid attorney fees, payment must be made within ten days from the date of the letter instead of within ten days from the date of receipt of the letter as provided by OCGA § 13-1-11. On January 17, 1991, plaintiff filed a motion to allow supplemental affidavits asserting that it had sent the defendant another demand letter on November 30, 1990, which complied with the provisions of OCGA § 13-1-11. On January 25, 1991, the trial court awarded summary judgment to plaintiff for the amounts owed under the open accounts and note. The trial court also awarded attorney fees under the terms of the note based on its finding that the July 10, 1990 letter substantially complied with the requirements of OCGA § 13-1-11.

“In . . . General Elec. &c. Corp. v. Brooks, 242 Ga. 109, 118 (249 SE2d 596) (1978), the Supreme Court held ‘that a “substantial compliance” with the notice provisions of [OCGA § 13-1-11] is all that is required’ and disapproved previous decisions of this court disallowing attorney fees because of the failure of the notice to track exactly the statutory language. However, in holding that ‘(w)hen there is actual compliance as to all matters of substance then mere technicalities of form or variations in the mode of expression should not be given the stature of noncompliance,’ the Supreme Court did clearly enumerate the ‘matters of substance’ which must be contained in the notice given the debtor: ‘Notice shall (1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.’ (Emphasis supplied.) General Elec. &c. Corp. v. Brooks, supra, 119.

“The notice [contained in the letter dated July 10, 1990] informed the [defendant] that in order to avoid attorney fees, the principal and interest must be paid within ten (10) days from the date of the letter rather than within ten (10) days from the date of the receipt thereof. We find that this variance from the statutory requirements is material and that it demands a holding that the notice [contained in that letter] does not constitute ‘substantial compliance’ with the statutory provisions.” Gorlin v. First Nat. Bank, 150 Ga. App. 637, 639 (4) (258 SE2d 290) (1979). See also Turk’s Memory Chapel v. Toccoa Casket Co., 134 Ga. App. 71 (213 SE2d 174) (1975); Adair Realty &c. Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16 (143 SE2d 577) (1965). Consequently, the trial court erred in awarding attorney fees on the basis that the July 10, 1990 letter substantially complied with the provisions of OCGA § 13-1-11.

Decided October 24, 1991.

Kessler & Sparks, Michael A. Kessler, for appellant.

Boyce, Thompson & O’Brien, R. Michael Thompson, Robert J. Solomon, for appellee.

Plaintiff argues, however, that even if its earlier notice was deficient, we should affirm the trial court based on the second, sufficient notice sent November 30, 1990. The affidavit to which the second letter was attached was not filed with the motion for summary judgment and therefore was untimely. See OCGA § 9-11-6 (d). Pretermitting the question of whether the plaintiff could “cure” the earlier defective notice after filing a summary judgment motion, it.is apparent that the trial court, which in its order referred only to the insufficient notice sent July 10, 1990, did not consider the later notice in awarding attorney fees to plaintiff. “While the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error.” Trend-Pak of Atlanta v. Arbor Commercial Division, 197 Ga. App. 137, 139 (2) (397 SE2d 592) (1990). Because no evidence was properly before the court to support the award of attorney fees under the terms of the note, “leave is given to the [plaintiff] to write off the attorney fees portion of the judgment within ten days after the filing of the remittitur in the court below and upon the [plaintiff’s] so doing, judgment will be affirmed. Otherwise, a new trial is ordered. [Cits.]” Gorlin, supra at 640.

Judgment affirmed on condition.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1403.
    NATIONAL PARENTS’ RESOURCE INSTITUTE FOR DRUG EDUCATION, INC. v. PEACHTREE HOTEL COMPANY.
    (411 SE2d 884)
   Birdsong, Presiding Judge.

The National Parents’ Resource Institute for Drug Education, Inc. (“PRIDE”) appeals from the grant of summary judgment to the Peachtree Hotel Company in the hotel’s suit on an account under a contract for rooms provided during PRIDE’s national conference in Atlanta. PRIDE alleges that the trial court erred by granting the hotel’s motion for summary judgment because it was not a party to any contract with the hotel and because an arbitration clause in the contract deprived the trial court of jurisdiction. Held:

1. As PRIDE does not question the amount due or the legal sufficiency of the contract, the only question is whether PRIDE is a party to the contract. PRIDE’s contentions that it is not a party to this contract are directly contradicted by the contract with the hotel and letters from and to PRIDE in the record.

The record shows the contract was signed by PRIDE’s Associate Director and the contract shows the “group requests master billing for room, tax and planning function.” “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). Accordingly, the contract plainly shows that PRIDE was a party to the contract and we may not consider parol evidence to take from or vary the terms of the contract. Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26).

In any event the record in this case supports fully that PRIDE was obligated under the contract. A letter to the hotel from PRIDE’s Associate Director advised “this letter is to confirm that [PRIDE] has complete control over housing for the PRIDE Conferences,” and requested that she be contacted in the event of problems or questions.

Additionally, the record shows that the manager of conference operations for PRIDE informed the hotel by letter, with a copy to PRIDE’s Associate Director, “please find enclosed the signed contract for the PRIDE 1989 housing block.” This letter was in reply to the hotel’s earlier letter which stated, “enclosed is a contract which outlines my understanding of your guest room requirements. Please review this information and if all meets with your approval, sign both copies of the contract. . . . Upon receipt of the signed contract, we will then consider all arrangements confirmed and definite.” Therefore, PRIDE’s argument that the Associate Director merely signed a tentative contract is contrary to the record.

Based upon the evidence of record, PRIDE was a party to the contract, and as PRIDE has never disputed the amount owed or that it was not paid, the trial court did not err by finding that the hotel was entitled to judgment.

Decided October 24, 1991.

Trotter, Smith & Jacobs, Sylvia K. Koehler, Scott K. Tippett, for appellant.

2. Although the contract contains an arbitration clause, the record shows that PRIDE never made a request or demand for arbitration under the contract. “An arbitration clause of a contract may be repudiated, waived, or abandoned, by either or both parties to a contract. An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration.” (Citation and punctuation omitted.) McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 12-13 (345 SE2d 53). Accordingly, PRIDE waived its contractual right to seek arbitration.

Further, the record also shows the only effort PRIDE made to raise this matter was on August 27, 1990, when in an amended answer to the complaint PRIDE asserted that if a contract existed between the parties, the suit on the contract was barred by the arbitration clause. Additionally, after this amended answer, PRIDE filed its own motion for summary judgment against the hotel which asserted its defense on the merits, but which did not mention arbitration. Moreover, PRIDE’s response to the hotel’s motion for summary judgment did not raise its arbitration argument in any fashion. Apart from the mention of arbitration in PRIDE’s amended answer, the only other mention of arbitration was in oral argument on the cross-motions for summary judgment when PRIDE stated, “the contract . . . contains an arbitration clause that specifies that dispute under the contract will be resolved by the American Arbitration Association. PRIDE has raised that defense in an amended answer and has waited patiently for the plaintiff to invoke arbitration proceedings in accordance with its contract that it drew up, but it hasn’t done it.” (Emphasis supplied.)

Accordingly, this record shows that PRIDE participated fully in the defense of the action without ever requesting or demanding arbitration, moving for dismissal, moving for a stay, or moving to compel arbitration, or taking any action to present the arbitration issue to the trial court for a ruling. Therefore, PRIDE not only waived its contractual right to seek arbitration, but also waived this issue in the trial court. City of Buford v. Thomas, 179 Ga. App. 769, 772 (347 SE2d 713). Accordingly, there is no issue on arbitration for our review, and under the circumstances, the trial court did not err by granting summary judgment to the hotel.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.


text:
    A91A1415.
    BACON v. THE STATE.
    (411 SE2d 783)
   Pope, Judge.

Defendant Donnie Bacon appeals his conviction for the offenses of obstruction of an officer and obscene and abusive language. We reverse.

1. (a) Defendant first contends his character was impermissibly placed in evidence by testimony of one of the State’s witnesses and references by the prosecutor to defendant’s alleged use of drugs. As to this issue the record reflects that a witness for the State, was allowed to testify over repeated objections and motions for mistrial that defendant had borrowed $10 from her the day before the incident to purchase some “medication” or a drug from a person in Swainsboro, Georgia, and that defendant later told her he purchased this drug. Although the trial court initially instructed the jury to disregard all testimony concerning the medication except the fact that defendant borrowed the money and told the witness he purchased the drug, the record shows the witness was subsequently allowed to testify that defendant also told her he took the drug. The State referred to this testimony during both opening and closing arguments and argued to the jury that defendant was under the influence of drugs and alcohol at the time the offenses were committed.

Pursuant to OCGA § 24-9-20 (b): “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” The State argues the evidence complained of here only “incidentally” placed the defendant’s character in evidence and was relevant and admissible to show the circumstances surrounding defendant’s arrest as this court held in Bryan v. State, 157 Ga. App. 635 (4) (278 SE2d 177) (1981). We disagree. There was absolutely no evidence presented at trial to support the State’s assertion that defendant was under the influence of drugs at the time of his arrest. To the contrary, the jury was initially instructed to disregard all testimony of the witness except the testimony defendant had borrowed $10 and purchased the drug. The witness testified that both of these events occurred the day before defendant was arrested. Although the witness subsequently testified that defendant also told her he took the drug, the witness was not asked nor did she specify when the alleged consumption of the drug allegedly took place. Likewise, no competent evidence was presented at trial concerning the type of drug defendant was 'alleged to have taken or that such drug would have affected defendant in such a way as to make him engage in the type of combative behavior the arresting officers testified defendant displayed at the time of his arrest, and which formed the basis of the charges against him. The evidence complained of here was not admissible for any proper purpose and “it is our view that its only purpose was to attempt to show bad character. In the absence of interjection of the issue of character by the defendant, the evidence was inadmissible. [Cits.] Neither was it harmless nor nonprejudicial, as argued by the state. In our judgment, its admission requires reversal.” Duke v. State, 256 Ga. 671, 672-673 (352 SE2d 561) (1987).

Decided October 24, 1991.

Alan P. Layne, for appellant.

David B. Pittman, Solicitor, for appellee.

(b) Defendant also contends his character was impermissibly placed in evidence by testimony that he “might have been on probation” at the time of his arrest. Pretermitting the issue of whether this testimony in fact placed defendant’s character in evidence, see Cochran v. State, 177 Ga. App. 471 (3) (339 SE2d 749) (1986) and citations therein, we find the complained of testimony does not require reversal. The record shows the trial court acted quickly to rule the testimony inadmissible and to order that it be stricken. Under the circumstances of this case, we find no error in the trial court’s denial of defendant’s motion for mistrial. See, e.g., Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982).

2. Defendant also contends the trial court erred by refusing to charge on the law of DUI and intoxicated pedestrians because the evidence presented at trial shows that the confrontation with the arresting officers occurred after defendant refused to leave the premises of his mother’s place of employment because he was afraid he would be arrested for either DUI or being an intoxicated pedestrian. We find no error. Contrary to defendant’s argument, the record shows defendant offered to leave if his mother would return his car keys. Moreover, accepting for the sake of argument defendant’s contention that he refused to leave the premises because he feared he would be committing a crime, such fear fails to explain why defendant allegedly engaged in a physical struggle with the officers. In sum, we find no merit to this enumeration.

Judgment .reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1416.
    BACON v. THE STATE.
    (411 SE2d 785)
   Pope, Judge.

Defendant Donnie Bacon pled guilty to the offense of criminal trespass. On appeal he contends the judgment and sentence entered on the guilty plea must be reversed because the record fails to show that he knowingly and intelligently waived his rights and understood the possible consequences of entering a guilty plea. We agree and reverse.

The record shows that when the case was called for trial the defendant informed the court that he was waiting for his attorney. The trial judge responded that he intended to go forward and strike a jury without defendant’s attorney and then announced that defendant was proceeding pro se. After a jury was selected, the defendant made a request to approach the bench and informed the trial court that he wished to enter a guilty plea. The transcript reflects that the trial court informed the defendant it was “up to [him],” that it was “not influencing [him] in any way” and that it would delay sentencing pending the outcome of trial on other charges against the defendant. See Bacon v. State, 201 Ga. App. 639 (411 SE2d 783) (1991). The transcript reflects that other comments made during the bench conference, if any, were inaudible.

“Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant ‘ “intelligently and understanding^” ’ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered ‘ “by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent [or incomplete] record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Cit.)’ Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985).” Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989).

We agree with the defendant that “[t]here is no affirmative showing in the record [in this case] that [defendant] voluntarily and understandingly entered [a guilty plea to the charge against him]. Indeed, the transcript . . . reveals that none of the substantive requirements of Fed. R. Crim. P. 11, as interpreted in Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), was followed by the trial court in this case. See Rules 33.7, 33.8, and 33.9 of the Uniform Rules for the Superior Courts, as applicable in state courts, and Uniform State Court Rule 33.11. Although the State [argues that the defendant’s plea was entered with the advice of counsel because the defendant had “ample opportunity” to consult with counsel both before and after he entered his plea, in that he had legal representation in connection with other charges pending against him during this time, there is nothing in the record to support this contention]. Since the entire record . . . fails to show that [defendant] was cognizant of all the rights he was waiving and the possible consequences of his plea, and since the State failed to take any action pursuant to OCGA § 5-6-41 (f) to correct the . . . omission or to fill a silent record by use of extrinsic evidence affirmatively showing the guilty plea was knowing and voluntary, [cit.], the State failed to carry its burden. We will not consider factual representations raised in the State’s brief which did not appear in the record.” Agerton v. State, 191 Ga. Ap,p. 633 (382 SE2d 417) (1989). Accord Warner v. Jones, 241 Ga. 467 (246 SE2d 320) (1978); Harrell v. State, 145 Ga. App. 93 (243 SE2d 611) (1978); cf. Wood, supra.

Decided October 24, 1991.

Alan P. Layne, for appellant.

David B. Pittman, Solicitor, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1274.
    HUFFMAN v. THE STATE.
    (411 SE2d 787)
   Judge Arnold Shulman.

The appellant was charged with two counts of simple battery (OCGA § 16-5-23) and one count of battery (OCGA § 16-5-23.1). He was tried before a jury and convicted of one of the counts of simple battery. He appeals from the denial of his motion for a new trial.

The appellant testified that the victim was “tailgating” him as he (the appellant) was driving with his three teenage children. The victim admitted flashing his high beams at the appellant’s car because of what he deemed to be rowdy behavior and erratic driving. The appellant stopped his car, blocking traffic on his side of the road, got out, walked back to the victim’s car, and punched the victim at least twice, blackening his eye and breaking his glasses. The appellant maintained that this conduct was justified by the victim’s use of opprobrious arid abusive language and by a perceived threat of force on the part of the victim. Held:

Decided October 25, 1991.

James C. Strayhorn, for appellant.

Patrick H. Head, Solicitor, Victoria S. Aronow, Beverly M. Collins, Assistant Solicitors, for appellee.

1. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of simple battery. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant complains that his counsel’s closing argument was curtailed by the trial court to such an extent as to prevent him from presenting the legal theory of his defense to the jury in an intelligent manner. The record reveals that the trial court sustained the state’s objections to several attempts by defense counsel to draw inferences from facts not in evidence. Other objections to defense counsel’s manner of relating the facts in evidence to his client’s legal position were not sustained, although he was cautioned by the trial court not to instruct the jury as to the law. Cf. Conklin v. State, 254 Ga. 558, 569 (10) (331 SE2d 532) (1985). As the appellant has failed to demonstrate that any of these actions by the trial court were erroneous or that, if they were, he was harmed by them, we find this enumeration of error to be without merit.

3. The appellant contends that the court erred in including the phrase, “great bodily harm,” in its charge to the jury on the affirmative defense of justification. The charge in question consisted of a virtually verbatim reading of OCGA § 16-3-21 (a), the Code section dealing with use of force in defense of self or others. Whether or not the force used by the appellant was “intended or likely to cause great bodily harm” was for the jury to determine. See McMichael v. State, 194 Ga. App. 225 (390 SE2d 120) (1990). The appellant has not suggested how the use of this language could have misled the jury to his prejudice, and it seems clear from the fact that he was convicted only of simple battery and not of the greater offense of battery that it did not do so.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1432.
    MARTIN v. THE STATE.
    (411 SE2d 788)
   Judge Arnold Shulman.

The appellant was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. He brings this appeal from the denial of his motion for new trial.

State’s witness Catherine Christensen testified that while employed as an undercover narcotics agent for the Georgia Bureau of Investigation (GBI), she drove to a Chevron station in the company of a confidential informant and listened while the informant placed a telephone call to a Tommy Swafford and told him “he had a girl that wanted to purchase an amount of cocaine from him. . . .” She stated that Swafford arrived at the service station shortly thereafter in a pickup truck being driven by another man whose identity was at that time unknown to her but whom she positively identified at trial as the appellant. She testified that she recorded the tag number of the pickup truck and purchased a quantity of cocaine from Swafford in the appellant’s presence. Subsequently, while waiting in the Walker County Courthouse to testify before the Grand Jury in connection with the charges arising from this transaction, she observed the appellant, whose identity was still unknown to her at the time, enter the room and sit down near her. She testified that there were “many people walking around to present things and just in general [doing] business at the courthouse . . . ,” but that she immediately recognized the appellant as the person who had driven the pickup truck at the time of the transaction.

Subsequent to the sale, but prior to Christensen’s identification of the appellant outside the Grand Jury room, the state instituted condemnation proceedings against the pickup truck whose tag number she had recorded, and the appellant was named as the titleholder of the vehicle in connection with those proceedings. According to Assistant District Attorney Ronald Adams, who represented the state during most of the trial of the present case, the appellant telephoned his office after the vehicle was seized in connection with those proceedings and angrily told him that he “didn’t know anything about any cocaine sale, . . . that there was some mistake of some kind, and that he wanted to have his vehicle returned.” Adams testified that he asked the appellant at this time if he would be willing to participate in a lineup to determine whether Christensen could identify him as the person who had been with Swafford when the transaction took place and that the appellant responded “that a lineup was not necessary, that he would willingly meet with the agent one-on-one, and that she would have a full opportunity to view him in any manner that she wished.”

1. Prior to trial, the appellant filed a motion to suppress Christensen’s identification testimony on the ground that the circumstances surrounding her identification of him outside the Grand Jury room had given rise to a substantial likelihood of irreparable mistaken identification; and he enumerates as error the court’s refusal to conduct a hearing on this motion. However, it has repeatedly been held that the trial court is not required to entertain a pre-trial motion to suppress identification testimony. See Day v. State, 237 Ga. 538, 541 (3) (a) (228 SE2d 913) (1976); Smith v. State, 195 Ga. App. 669 (1) (394 SE2d 558) (1990); Goswick v. State, 150 Ga. App. 279 (1), 280 (257 SE2d 303) (1979). Consequently, this enumeration of error is without merit. We note that the appellant did not object to the admission of the agent’s identification testimony during the trial itself and that he has not argued on appeal the merits of his contention that the identification was tainted by improperly suggestive pre-trial identification procedures.

2. The appellant contends that the trial court erred in allowing Assistant District Attorney Adams, who had acted as counsel for the state during the presentation of its case, to take the stand to testify against him as a rebuttal witness. After the state had rested and after the appellant had testified on direct examination in his own defense, the district attorney informed the court that the state intended to call Adams as a rebuttal witness in connection with certain testimony the appellant had offered with regard to the content of their pre-trial conversations. The appellant’s counsel objected, asserting that he had told Adams during the week prior to trial that he (Adams) “potentially was a witness in this case” and further contending that it was “obvious in this set of circumstances that he had notice of that or should have had notice of that, even without me telling him.” Adams denied having received such notice from defense counsel and asserted that he “had no idea [the appellant] was going to take the stand.” The trial judge ruled that Adams would be allowed to testify, and the district attorney took over as counsel for the state for the remainder of the trial.

We find no error. While Adams may have known there was a possibility the appellant would testify regarding their pre-trial discussions, there is nothing in the record which would indicate that he had received notice that the appellant in fact intended to do so. The appellant alone had knowledge of his actual intentions in this regard, yet he raised no objection to Adams’ role as counsel for the state until after the state had presented its case and after he (the appellant) had testified on direct examination. “It has been held that permitting a prosecuting attorney to testify as a rebuttal witness is within the discretion of the trial judge. [Cits.] The prosecutor in the instant case testified in rebuttal only for impeachment purposes as to [the content of the discussions between himself and the appellant]. In view of the facts and circumstances, we do not find that the trial court erred in allowing the prosecutor to testify.” Timberlake v. State, 246 Ga. 488, 501 (7) (271 SE2d 792) (1980).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.

Decided October 25, 1991.

McCracken K. Poston, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A1634.
    INGRAM v. THE STATE.
    (411 SE2d 790)
    Decided October 28, 1991
    Cert, applied for.

      Luana K. Walsh, for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault (with intent to rape). This appeal followed the denial of defendant’s motion for new trial. Held:

In two enumerations, defendant contends the trial court erred in refusing to allow his attorney to question a defense witness regarding the victim’s inclusion on a list of employees of the Internal Revenue Service (“IRS”). Defendant argues that the witness’ response would have discredited the victim’s testimony that she was a seasonal employee for the IRS and that she was walking home from work when she encountered defendant. Defendant further argues that the excluded testimony would have bolstered his claim that the victim was a prostitute and that he was “fighting” the victim when a police officer interceded because the victim “reneged on the deal [for sex] and tried to rob him of his wallet.” Defendant failed to offer proof of the excluded testimony and thereby waived any claim of error. Yeomans v. State, 116 Ga. App. 199, 200 (156 SE2d 658). These enumerations are without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1776.
    THOMPSON v. THE STATE.
    (411 SE2d 886)
   McMurray, Presiding Judge.

Defendant Thompson appeals his conviction of two counts of violating the Georgia Controlled Substances Act (selling cocaine). Held:

1. The evidence is sufficient to authorize defendant’s convictions. The State’s evidence shows that on June 9, 1989, and on June 12, 1989, an undercover officer purchased cocaine from defendant. In both instances, defendant was observed handing the cocaine to an accomplice who exchanged the cocaine for money. At trial, the undercover officer positively identified defendant as the source of the cocaine. Defendant contends that an inaccurate statement, in one of the undercover officer’s reports as to the height and weight of defendant, suggests that this identification was inaccurate. However, the undercover officer explained that he had observed defendant so many times that identification had ceased to be an issue he was concerned with and that, on the occasion to which the report was related, he had been concentrating on seeing the cocaine going from defendant’s hand to the accomplice’s hand and then to his own hand. The credibility issue thus presented was within the prerogative of the jury. Page v. State, 198 Ga. App. 338, 339 (1) (401 SE2d 564). Any rational trier of fact could conclude beyond a reasonable doubt that defendant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hendrix v. State, 199 Ga. App. 599, 600 (1), 601 (401 SE2d 576).

2. The trial court did not err in refusing to grant a continuance to enable the defendant to obtain the presence of an absent witness, his mother. Any testimony this witness may have given as to defendant’s height and weight at the time of the offenses would have been immaterial following the undercover officer’s concession that the description of defendant contained in his report was inaccurate. There is no error in the denial of a continuance where defendant fails to show the materiality of the absent witness. Medley v. State, 194 Ga. App. 154, 156 (2) (390 SE2d 75).

The remaining testimony of defendant’s mother would only have served to impeach a State’s witness. However, since the defendant’s convictions were authorized by evidence other than the testimony sought to be impeached, it was not an abuse of discretion to refuse the continuance. Grimes v. State, 168 Ga. App. 372, 377 (6) (308 SE2d 863).

3. A police officer testified that after approaching defendant on the street and in order to verify defendant’s representations as to his identity, he instructed a radio dispatcher to telephone a number defendant had given as his mother’s and to inquire of the woman of the house whether she had a son with the name and date of birth given by defendant and of the same physical appearance. Defendant interjected a hearsay objection when this witness attempted to state the nature of the reply he received from the dispatcher concerning this query. The trial court overruled defendant’s objection, stating that the response was admissible to explain the officer’s conduct. The officer then testified that he received an affirmative response from the dispatcher and told defendant he was free to go.

“ ‘When, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found . . . , then information . . . known to the actor (is) admissible to explain the actor’s conduct. (Cits.) But where the conduct and motives of the actor are not matters concerning which the truth must be found . . . , then the information, etc., on which he or she acted shall not be admissible under (OCGA § 24-3-2).’ Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). ‘(O)nly in rare instances will the “conduct” of an investigating officer need to be “explained”; as in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.” At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something.’ Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984).” Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342).

Applying this principle, it is clear that the conduct and motives of the officer in attempting to verify defendant’s identity or subsequently telling defendant he was free to go were not matters concerning which the truth must be found in the case sub judice. Therefore, the dispatcher’s response was not admissible as original evidence under OCGA § 24-3-2 and the admission of this response was error. Momon v. State, 249 Ga. 865, 867 (294 SE2d 482).

The question remains as to whether the error of admitting the officer’s testimony as to the dispatcher’s response was harmful. Johnson v. State, 238 Ga. 59 (230 SE2d 869). The improperly admitted evidence served only to establish that defendant Herbert Thompson sometimes represented himself to be “Andrew Thompson.” The evidence was merely cumulative in this regard since this is also established by the testimony of the undercover officer who made the purchases of cocaine. In the light of the undercover officer’s testimony that it was defendant, whom he identified at trial, that had been the seller of the cocaine he purchased, it is more than highly probable that the admission of the improper evidence did not contribute to the verdict. Teague v. State, 252 Ga. 534, 537 (2) (314 SE2d 910); Johnson v. State, 238 Ga. 59, 61, supra; Black v. State, 190 Ga. App. 137 (1), supra.

4. Defendant enumerates as error the denial of his motion predicated on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), challenging the State’s use of its peremptory strikes. The State used seven of its peremptory strikes to exclude blacks from the jury. The prosecutor explained that one of these black panelists was excused because he was observed communicating with the defendant during the jury selection process and that the remainder were excused because they had been or were at that time being prosecuted or had some affiliation with someone who had been or was then being prosecuted. Nothing was elicited during voir dire concerning the other criminal prosecutions related to the excluded panelists. Defense counsel complained that he was not made aware of the information gathered by the prosecution in regard to the other prosecutions and used by the State as the basis of its racially neutral explanation. The trial court overruled defendant’s Batson motion.

Decided October 28, 1991.

Lawrence O. Guillory, for appellant.

Edward D. Lukemire, District Attorney, A. Robert Tawse, Assistant District Attorney, for appellee.

While the overruling of defendant’s Batson motion is enumerated as error, his argument on appeal is not directed to the trial court’s conclusion that the State’s peremptory challenges were racially neutral, but to the State’s use of information it had gathered prior to trial concerning panelist related prosecutions, which information had not been revealed to defendant prior to the striking of the jury. While defense counsel addressed this matter before the trial court, no remedial action was elicited and thus the issue was waived. Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395); Willis v. State, 197 Ga. App. 230 (2) (398 SE2d 259). If the issue is viewed as properly preserved, it must be deemed meritless. There is no discovery in criminal cases and the prosecution is under no obligation to provide defendant with non-exculpatory information. We are not familiar with any theory upon which the prosecution would be required to divulge information it has gathered concerning a panel of possible jurors. Pruitt v. State, 258 Ga. 583, 585 (373 SE2d 192); Castell v. State, 250 Ga. 776, 782 (301 SE2d 234).

5. “ ‘This state does not follow a “cumulative error” rule of prejudice. Any error of record . . . must, stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.’ Butler v. State, 163 Ga. App. 475, 476 (294 SE2d 700) (1982). Accord Montford v. State, 168 Ga. App. 394, 397 (6) (309 SE2d 650) (1983).” Dyous v. State, 195 Ga. App. 99, 100 (3) (392 SE2d 730). We have considered each of defendant’s enumerations of error and determined that none of them provides a sufficient basis for the reversal of defendant’s convictions.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1444.
    THE STATE v. SMITH.
    (411 SE2d 877)
   Sognier, Chief Judge.

Rufus Smith was indicted on charges of possession of cocaine and possession of a firearm by a convicted felon. The State appeals from the trial court’s grant of Smith’s motion to suppress.

We reverse. The transcript of the motion hearing reveals that the trial court granted appellee’s motion on the basis that the affidavit presented to the magistrate to support the warrant failed to show how the confidential informant acquired the knowledge set forth in the affidavit. The affidavit provided in pertinent part that on a given date, Officer R. L. Robinson, an officer assigned as special agent to the Tri-Cities Narcotics Squad, “received information from a confidential and reliable informant that [appellee] was using, selling and storing cocaine at [a stated location]. This confidential and reliable informant advised this officer that [appellee] (Joe Blow) was cooking cocaine every Wednesday around 10:00 to 11:00 A.M. approximately lh kilo at a time. This informant advised that he delivers the cocaine in a white Mercedes or a Cadillac bearing tag no. ARJ188 or a smoke gray Camaro bearing tag no. ARL739. This informant advised this officer that [appellee] is one of the largest cocaine distributors in the south metro area. The above said subject has a criminal history that reveals trafficking in cocaine in violation of the Georgia Controlled Substances Act. This informant advised this officer that the above subject moves thousands of dollars of cocaine a day and that the subject owns several meat packing companies and a large amount of real estate. This informant went on to advise this Officer that his businesses were just a front for his cocaine business.

“At this time, this agent checked address given to me by informant. This address came back with the name Flora Mae Hill, 5775 Bearing Way, College Park, Georgia. This informant advised this officer that this was ‘Joe Blow’s’ residence and advised that this is where they picked up the cocaine orders every week.

“This confidential and reliable .informant has given this officer information that has proven truthful and accurate within the past 90 days that has led to the arrest of persons involved in various crimes. Said confidential and reliable informant is familiar with cocaine and its various forms and stages of distribution and usage. This confidential and reliable informant is known to this officer to have a truthful demeanor.” No other information was presented by the affiant to the magistrate.

We held in Dailey v. State, 136 Ga. App. 866 (1) (222 SE2d 682) (1975) that “[w]here reliance is had on an informer, the affidavit submitted must contain sufficient facts to show: (1) Reasons for the informer’s reliability; (2) that the affidavit either specifically state how the informant obtained his information or describe the alleged criminal activity in such detail that the magistrate may know that it is more than a ‘casual rumor’ circulating in the underworld or an accusation based merely on an individual’s general reputation; and (3) that the information is not stale. [Cit.]” While the above affidavit did set forth matters of a conclusory nature, it also detailed criminal activity, specifically, the “cooking” of the cocaine in half kilogram amounts on Wednesday mornings between 10:00 and 11:00 and the delivery in certain cars specifically described. We find the above affidavit no more sparse in details and averments of personal knowledge than the affidavit approved in Futch v. State, 178 Ga. App. 115, 116 (1) (342 SE2d 493) (1986), in which we held that “[e]ven were the discarded, two-pronged Aguilar-Spinelli requirement [as set forth in Dailey, supra] still in effect, the affidavit in the instant case would be sufficient to support issuance of the search warrant.” Accordingly, under the more lenient totality of the circumstances approach in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), see State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), we find the affidavit in the case sub judice provided sufficient basis for finding probable cause. Futch, supra.

Decided October 17, 1991

Reconsideration denied October 29, 1991

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Kenneth D. Feldman, Carl P. Greenberg, Assistant District Attorneys, for appellant.

Furthermore, at the motion hearing, Officer Robinson testified that although he had not provided the magistrate with any further details, he had personally confirmed many other details provided by the confidential informant, who was a source Fulton County officers had used and found reliable, and had accompanied the confidential informant to appellee’s house and seen them converse. Robinson also testified that he knew appellee had been previously arrested on a drug charge and had at least one drug-related conviction. Therefore, even assuming for the purpose of argument that Robinson’s unsupplemented affidavit failed to establish probable cause for a belief that cocaine would be found on appellee’s premises, the evidence demonstrated without dispute that Robinson, as one of the officers involved in the seizure of the contraband, acted in good-faith reliance both on the validity of the warrant and on the existence of probable cause, so as to bring the seizure of the contraband within the good-faith exception to the exclusionary rule as announced in United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984). See Rodriguez v. State, 191 Ga. App. 241, 243 (1) (381 SE2d 529) (1989).

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Rufus Smith, Jr., pro se.

John W. Greer III, for appellee.


text:
    A91A1139, A91A1140, A91A1141, A91A1142.
    SINKFIELD v. PIKE et al. (four cases).
    (411 SE2d 889)
   Sognier, Chief Judge.

Henry Sinkfield and each of his three passengers brought suit against Alonso Pierce Pike and the City of Carrollton to recover damages for injuries allegedly incurred when a fire truck operated by Pike collided with a car driven by Sinkfield. The trial court granted summary judgment to the defendants on the grounds of governmental and official immunity, and the plaintiffs appeal. We have consolidated their appeals for decision.

On the afternoon of August 6, 1988, appellant Henry Sinkfield was driving south on Highway 16 toward its intersection with Highway 166. Pike, a city firefighter who was responding to a fire alarm, was driving a city fire truck east on Highway 166 toward the same intersection. Pike testified by affidavit that he was using the truck’s emergency lights and siren. He averred that he slowed to between 15 and 25 miles per hour when he approached the intersection to check for traffic and, seeing no other vehicles, proceeded through the red light. Henry Sinkfield testified in his deposition that he heard the siren but did not see the truck until he entered the intersection (he had a green light). He testified further that he was driving about 30 miles per hour but could not estimate Pike’s speed. Sinkfield acknowledged that the truck’s emergency light was on, but stated that an embankment on the northwest corner of the intersection obstructed his view of the truck. The passengers were deposed, and each had a slightly different recollection concerning whether he saw the truck emergency light or heard the siren. A witness who was stopped on Highway 166 at the red light on the opposite side of the intersection from Pike averred that he saw the truck come through the intersection without slowing down.

1. Appellants contend the trial court erred by concluding that the City had not waived its immunity by the purchase of liability insurance. Dudley Crosson, the City Manager, averred that the City carried no motor vehicle liability insurance but did participate in a Georgia Interlocal Risk Management Agency (GIRMA) as authorized by OCGA § 36-85-1 et seq. In Adams v. Perdue, 199 Ga. App. 476 (405 SE2d 305) (1991), this court held that a city’s participation in GIRMA did not constitute the purchase of liability insurance that would waive the city’s immunity under Ga. Const., Art. I, Sec. II, Par. IX (1983) because the statutes authorizing GIRMA expressly provide otherwise. See OCGA §§ 36-85-4; 36-85-20. As appellees note, GIRMA is an association formed to pool certain liability and property damage risks, not to provide indemnity insurance. See OCGA §§ 36-85-1 (7); 36-85-2 (a). Accordingly, this enumeration is without merit.

2. Appellants’ enumeration concerning the constitutionality of OCGA § 36-85-20 presents an argument not made in the trial court; therefore, we cannot consider it. Noro-North Plaza v. Rare Coins, 196 Ga. App. 443, 444 (1) (395 SE2d 918) (1990).

3. In their remaining enumerations, appellants contend that Pike’s actions were ministerial, not discretionary, and that fact questions remain as to whether Pike was negligent. The trial court followed Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990) to hold that Pike was performing a discretionary act, thereby entitling him and the City to the defense of governmental immunity, and that there was no evidence of wanton or reckless behavior to preclude the assertion of that defense.

We first note that both appellants and the trial court have misstated the nature of the City’s governmental immunity. A municipality is immune from liability for the negligent performance of its governmental duties, e.g., Turk v. City of Rome, 133 Ga. App. 886, 887 (212 SE2d 459) (1975), but may be held liable for negligence in the performance of its ministerial duties. OCGA § 36-33-1 (b). In comparison, the official immunity of municipal employees depends on whether the alleged negligent act was discretionary or ministerial. Logue, supra at 206-207 (1). Since the operation of a fire department is a governmental function, Bagwell v. City of Gainesville, 106 Ga. App. 367 (1) (126 SE2d 906) (1962), the City is immune from any liability for Pike’s actions .regardless of whether his actions were discretionary or ministerial and even if he was negligent. See id. at 367-368 (1). Accordingly, the trial court properly granted summary judgment to the City.

Pike’s entitlement to official immunity, however, does depend on the nature of his actions. Our research has not uncovered any Georgia cases analyzing the nature of a firefighter’s actions in driving to the scene of a fire in response to a fire alarm. In Logue, supra at 207-208 (1), the Supreme Court held that the decision of a county law enforcement officer to respond to an emergency call and rush to the scene was a discretionary act so as to insulate the officer from personal liability for his negligence. This court followed the Logue analysis to hold in Adams, supra, that a city police officer’s decision to maneuver his car to the location of an altercation he observed while on routine patrol likewise was discretionary. We agree with the trial court’s conclusion that the Supreme Court’s decision in Logue controls this case as well. In Logue, the court extended an umbrella of immunity over the actions of public safety officials in responding to emergencies, and we are persuaded that this analysis encompasses Pike’s actions. Since there was some evidence of negligence but no evidence of wanton or reckless behavior, Pike likewise was entitled to summary judgment. Logue, supra at 207-208 (1).

Decided October 29, 1991.

Jack F. Witcher, for appellant.

Jenkins & Eells, Kirk R. Fjelstul, for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1160.
    JENKINS v. THE STATE.
    (413 SE2d 460)
   Judge Arnold Shulman.

The appellant was convicted of two counts of burglary and sentenced to 20 years imprisonment. He did not file a timely notice of appeal or motion for new trial; however, based on a determination that his failure to do so was attributable to ineffective assistance of counsel, the trial court entered an order granting him leave to file an out-of-time appeal. The present appeal was filed pursuant to that order.

The two burglaries occurred on the same morning and involved residences located in the same subdivision. A stereo, a VCR, and a distinctively patterned quilt were stolen from the home of Traci Brown, while a cable converter box, a television with remote control, a VCR, and a blue blanket were stolen from the home of Peter Smith. As officers from the sheriff’s department were investigating the burglary of the Smith home, a neighbor, Ms. Butler, approached them and reported that several months previously, before Mr. Smith had moved in, she had seen a man emerge from what was now his house carrying a rifle and then drive off in an “old Oldsmobile that was blue.” She told the officers that she had since seen this same vehicle parked outside another residence located in the subdivision, and at their request she took them to that residence, which was located on Chickamauga Street. One of the officers testified that Ms. Butler described the vehicle in question as a blue Oldsmobile Cutlass, while another testified that she described it as a blue Pontiac Grand Prix. While driving through the area, the latter officer subsequently passed a vehicle which appeared to him to be a blue Pontiac Grand Prix, and he recorded its tag number and “put out a lookout” for it.

Shortly thereafter, two patrolmen in separate vehicles saw a blue Oldsmobile bearing the tag number in question parked in the driveway of a home located just outside the back entrance to the subdivision. Immediately after driving past this vehicle, they saw it back out of the driveway and head back into the subdivision. They pursued and stopped it and questioned the driver, who proved to be the appellant. The appellant was unable to explain why he had been parked in the driveway where the officers had initially seen him and acknowledged that he did not know the people who lived at that location. After asking for and receiving his permission to do so, the officers then opened the trunk of his car. Inside, they saw two blankets “covering over what appeared to be a TV or a VCR”; however, when they reached to lift up the blankets to see what was under them, the appellant stopped them, stating that he had only given them permission to look inside the trunk, not to look under the blankets.

The patrolmen were unaware at this time that the lookout for the appellant’s vehicle had been instituted in connection with two recent burglaries in which a TV, a VCR, and two blankets had been stolen. Because the appellant’s vehicle was registered to a woman with a Chickamauga Street address and because the appellant told the officers that he lived on Chickamauga Street and was returning home, they accordingly allowed him to leave. However, after communicating over the radio with the officers who were investigating the burglaries, they began looking for him again. Officer Hill located him approximately three to five minutes later near the main entrance to the subdivision, “traveling away from the playground and picnic area which is located back down that way.” He detained him again; and shortly thereafter, Lt. Higgins, one of the officers involved in the burglary investigation, arrived on the scene. After advising him of his rights, Lt. Higgins asked the appellant for permission to look inside the trunk of his vehicle, and again the appellant agreed. Officer Hill testified that “[t]his time the blue blanket and the other blanket were just laying in the bed of the trunk and whatever that [had been] up under the blue blanket was gone.” However, a remote control device was found wrapped up inside one of the blankets.

Recognizing the blankets as “being like the ones that Mrs. Brown and Mr. Smith . . . had described,” Lt. Higgins took the appellant into custody and questioned him about them. He testified that the appellant initially told him the blankets and the remote control belonged to him and had been inside his trunk for some time, but that upon being told such items had recently been stolen from two homes located in the subdivision, he changed his story and maintained that he had just recently found the blankets in a nearby playground. The appellant denied any knowledge of the remote control device at this time and suggested that it must have been tangled up in the blankets when he put them in the trunk. Lt. Higgins testified that when he asked the appellant to explain the discrepancy between these two accounts, the appellant stated simply that he was unable to do so. The next day, a TV, VCR, and cable converter box were found in the woods near the playground in question. These items, along with the remote control device and the blue blanket recovered from the trunk of the appellant’s vehicle, were identified by Mr. Smith as having been stolen from his home, while the quilt recovered from the appellant’s trunk was identified by Mrs. Brown as the one which had been stolen from her home.

1. The appellant contends that his trial counsel rendered ineffective assistance by withdrawing from the case after the trial without filing a notice of appeal or motion for new trial, by failing to move to suppress the items seized from his vehicle on the ground that his initial detention by the two patrolmen was unlawful, and by failing to object to his being sentenced as a recidivist pursuant to OCGA § 17-10-7. The failure to file a timely notice of appeal or motion for new trial has, of course, been remedied by the grant of the present out-of-time appeal. For the reasons hereinafter stated, we hold that the other two alleged deficiencies in the representation provided by trial counsel similarly resulted in no harm to the appellant.

2. “Even in the absence of probable cause, a police officer ‘may stop an automobile and conduct a limited investigative inquiry of its occupants ... if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ [Cit.]” Mallarino v. State, 190 Ga. App. 398, 401 (379 SE2d 210) (1989). Clearly, the initial stop of the appellant’s vehicle was not arbitrary or harassing. Rather, it occurred because a lookout had been placed for it due to its having been spotted by police during a burglary investigation, shortly after a neighbor reported having seen a vehicle meeting its description involved in prior suspicious activity in the neighborhood. The patrolmen who stopped the vehicle testified that it was parked in a driveway located just outside the subdivision when they first observed it but that it backed out of the driveway and proceeded back into the subdivision immediately after they passed it. Under the circumstances, the patrolmen could reasonably have considered this a “sufficiently suspicious and . . . furtive response ... to give the officer at least a reasonable suspicion of . . . criminal activity and to warrant further investigation.” State v. Webb, 193 Ga. App. 2, 4 (386 SE2d 891) (1989). Consequently, their action in detaining the appellant temporarily to determine his identity and his reasons for being in the neighborhood did not constitute a violation of his Fourth Amendment rights.

3. The indictment alleged that the appellant had been convicted of two prior felonies. During the sentencing hearing, the state introduced certified copies of these two convictions as well as a certified copy of a third prior felony conviction which had not been alleged in the indictment. The appellant contends that under these circumstances, the trial court was not authorized to sentence him as a recidivist pursuant to OCGA § 17-10-7.

“The rule set forth in Black v. Caldwell, 231 Ga. 589 (203 SE2d 208) (1974), still applies. That is, before a defendant may be sentenced as a recidivist, he must have been indicted as a recidivist so that the indictment reflects the maximum punishment to which the defendant can be sentenced.” Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988). Since the indictment in this case alleged only two prior felony convictions and contained no language suggesting that evidence of a third such conviction would be introduced, it follows the trial court was not authorized to impose fourth-offender punishment pursuant to OCGA § 17-10-7 (b). However, it is evident from the record that no such punishment was in fact imposed. OCGA § 17-10-7 (b) specifies that upon conviction of a fourth felony offense, a defendant must “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” The appellant’s sentence contained no such provision, and the record before us reflects that he has in fact already been paroled and is no longer in confinement for the present offenses.

Since the indictment did allege that the appellant had been convicted of two prior felonies, it did support the imposition of recidivist punishment pursuant to OCGA § 17-10-7 (a), which provides that a defendant who is convicted of a third felony “shall be sentenced to undergo the longest period of time prescribed for the punishment of [such offense], provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense.” Accord Darty v. State, supra. Accordingly, the trial court did not err in sentencing the appellant pursuant to this provision.

4. “To convict a defendant of burglary based upon recent possession of stolen goods, it must be shown that the goods were stolen in a burglary and there must be an absence of or an unsatisfactory explanation of that possession. [Cit.] Whether the defendant’s explanation of the possession was a satisfactory explanation is a question for the jury. [Cits.]” Bankston v. State, 159 Ga. App. 342 (4), 343-344 (283 SE2d 319) (1981). Construed in favor of the verdict, the evidence in this case was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the two burglaries of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 29, 1991.

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Robin 0. Flanders, Kimberly S. Shumate, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.