text:
    A90A1441.
    BLACKMON v. THE STATE.
    (397 SE2d 728)
   McMurray, Presiding Judge.

Defendant was convicted of three counts of aggravated assault and one count of criminal damage to property in the first degree. The evidence showed that defendant poured gasoline onto a bed occupied by his wife and two step-children and that he then ignited the gasoline while the mother and children were on the bed. Upon the denial of his motion for new trial, defendant appeals. Held:

1. Defendant first contends the trial court erred in “failing to consider [his] own sworn testimony” before making a determination that his custodial statement was freely and voluntarily made. This contention is not supported by the record. The trial court heard from defendant, as well as the interrogating police officer, before determining that defendant’s custodial statement was made “voluntarily [and] freely. . . .”

During a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), defendant testified that his custodial statement was made while he was under the strain of injuries sustained during the incident which forms the basis of the crimes charged. More specifically, defendant testified that he requested medical treatment (“aspirin” for a “hurting” head) before the interrogation and that his request was not honored by the interrogating officer, Paul Kelhofer of the DeKalb County Police Department. Defendant further testified that Officer Kelhofer “convinced [him] that the only way [he] would get a bond . . .” was to give a statement. Defendant also testified that the officer was “trying to throw [him] off guard . . .” during the interview by “acting like a guy from the street.”

Officer Kelhofer testified that he did not “threaten or coerce . . .” defendant into making a statement; that he did not promise defendant the benefit of hope or reward in exchange for a statement; that defendant did not appear to be under the influence of alcohol at the time of the interview and that defendant was advised of his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), rights before interrogation. The officer further testified that defendant appeared to understand his constitutional rights and that defendant “voluntarily” executed a “Miranda rights waiver form . . .” before submitting to the interview. Officer Kelhofer admitted that defendant “complain [ed] about his head hurting ...” and that defendant “told [him about] a cut to the head[, but the officer explained that he] didn’t notice any blood . . .” around the “cut” and that defendant did not request medical attention for the injury. Officer Kelhofer testified that he did not seek treatment for defendant’s head wound before the interview because defendant was “eager to tell . . . what had happened” and because the “cut” did not appear to require “immediate” medical attention. The trial court found that “defendant did make the statement voluntarily [and] freely, based on the officer’s testimony.”

“ ‘Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Griswold v. State, 159 Ga. App. 22, 23 (2) (282 SE2d 679) (1981).’ Sanders v. State, 182 Ga. App. 581 (1), 582 (356 SE2d 537).” Washington v. State, 192 Ga. App. 678, 680 (385 SE2d 767). In the case sub judice, the trial court did not abuse its discretion in discounting defendant’s credibility. Officer Kelhofer’s testimony was sufficient to authorize a finding that defendant’s statement was freely and voluntarily made. See LaRue v. State, 171 Ga. App. 371, 372 (319 SE2d 468).

2. In his second enumeration, defendant contends the trial court erred in failing to charge that “the jury must find [defendant’s] alleged statement while in police custody to have been freely and voluntarily made.”

“ ‘Under established Georgia law there is no necessity to give a charge on the subject of the voluntariness of a confession unless there is a specific request for it. (Cits.)’ Thomas v. State, 233 Ga. 237, 241 (210 SE2d 675).” Welch v. State, 235 Ga. 243, 246 (2) (219 SE2d 151). In the case sub judice, defendant made no such request. Consequently, the trial court did not err in failing to charge the jury on the subject of the voluntariness of defendant’s custodial statement.

3. Next, defendant contends the trial court erred in charging the jury that “[a]n inference of guilt may arise from flight and that the flight of the accused, if not satisfactorily explained, is a fact which may be taken into consideration as having a tendency to establish guilty [sic].” Defendant argues that this instruction is “burden-shifting [because it] suggests that [he] had a duty to explain his purported flight.”

To begin, defendant’s brief does not accurately reflect the trial court charge on flight. The trial court’s instruction on flight provides as follows: “An inference of guilt may arise from flight and that the flight of an accused, if not satifactorily explained, is a fact which may be taken into consideration as having a tendency to establish guilty [sic].” (Emphasis supplied.) It is from this perspective that we consider defendant’s contention that the trial court’s charge on flight was unconstitutionally burden-shifting.

“A presumption or inference is an evidentiary device which authorizes the jury to find the existence of a fact from proof of one or more other facts. Such devices are not invalid per se. See, e.g., Ulster County v. Allen, 442 U. S. 140, 156 (99 SC 2213, 60 LE2d 777) (1979). However, a device may not, consistent with the constitutional requirement that a criminal defendant’s guilt must be proven beyond a reasonable doubt, lessen or shift the state’s burden of proof. Sandstrom v. Montana, [442 U. S. 510 (99 SC 2450, 61 LE2d 39)]. Whether an evidentiary device has such an impermissible effect depends upon whether it is permissive or mandatory. A permissive device is valid if it is rational[, i.e., is there a rational connection between the fact proved and the ultimate fact that may be inferred]. Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981). A mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable. Sandstrom v. Montana, supra, 442 U. S. at 524. . . .

“Whether the device is permissive or mandatory may be determined as follows: ‘A permissive inference is an evidentiary device that permits, but does not require, the jury to infer the elemental fact from proof by the prosecutor of the basic fact. By contrast, a mandatory presumption instructs the jury that it must infer the elemental fact once the state has proved the basic fact. The difference between the two may be found in the presence or absence of “language of command” such as “shall be.” An instruction containing a mandatory presumption commands that the jury reach a particular conclusion, while an instruction couched in terms of an inference merely suggests, but does not command, that the jury do so. Since a permissive inference does not require the jury to reach a certain conclusion, it does not affect the burden of proof, and therefore must meet only the “rational connection” test. A mandatory presumption, however, eases the prosecution’s burden and, therefore, implicates both the “rational connection” test and the requirement that the prosecution prove every element of the offense beyond a reasonable doubt. (Doyel, Burden-Shifting Criminal Jury Instructions in Georgia, 38 Mer. L. R. 1, 4 (1988) (footnotes omitted).)’ ” (Footnote omitted.) Isaacs v. State, 259 Ga. 717, 734 (35, b) (386 SE2d 316).

In the case sub judice, the trial court’s instruction on flight could reasonably be read as a “permissive inference” rather than a “mandatory presumption.” See Francis v. Franklin, 471 U. S. 307, 315, 318 (105 SC 1965, 85 LE2d 344). The charge did not require the jury to infer guilt from “the flight of an accused. . .,” it merely “suggested” that guilt “may” be inferred from flight and “that the flight of an accused . . . may be taken into consideration as having a tendency to establish guilty [sic].” Further, it is “reasonable” to infer a consciousness of guilt from evidence showing a defendant’s flight from the scene of a crime. See Spaulding v. State, 185 Ga. App. 812, 814 (4) (366 SE2d 174). Consequently, the trial court’s charge on flight was not unconstitutionally burden-shifting.

Defendant next argues that the trial court’s charge on flight “amounts to a comment on the evidence because it failed to point out that it was for the jury to decide whether there was flight.” Defendant also argues that the trial court erred in failing to charge the jurors that it was their “duty first to determine from the evidence whether there was ‘flight’ in the relevant sense. . . .” These arguments are without merit.

OCGA § 17-8-57 provides, in pertinent part, as follows: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” However, this Code section “is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Mitchell v. State, [190 Ga. 571, 572 (3) (9 SE2d 892)]; Buffington v. State, [171 Ga. App. 919, 923 (8) (321 SE2d 418)].” Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704).

In the case sub judice, the trial court failed to instruct the jury that it was for them to decide from the evidence whether there was flight. However, we fail to see how this omission amounted to “a comment on the evidence. ...” The trial judge neither assumed certain things as facts, nor did he intimate to the jury what he thought the evidence to be. At best, the omission of direction regarding the jury’s duty as factfinder with regard to flight was harmless in light of the trial court’s earlier instruction that, “[u]nder the law[, the jurors] are the sole judges of the facts, the truthfulness of the witnesses and the weight of the evidence.”

4. In his final enumeration, defendant contends “[t]he trial court erred in failing to give the jury a proper and complete definition of the crime of aggravated assault.” This contention is without merit.

The trial court charged on aggravated assault as is provided in OCGA § 16-5-21 (a) (2). During deliberations the jury requested the “ ‘[definition of aggravated assault from [the] charge to the jury ....’” The trial court “conferred with counsel . . .” and reinstructed the jury on aggravated assault as provided in OCGA § 16-5-21 (a) (2). The jury retired to deliberations, but later returned with the following inquiry: “ ‘What is the legal definition of assault? We ask so that we may understand the term aggravated assault.’ Question number two, ‘What makes an assault aggravated?’ And number three, ‘Does an action have to be undertaken with intent to harm another person to be considered aggravated assault?’ ” The trial court responded: “Ladies and gentlemen, I cannot answer fully those questions because a lot of it depends on your thinking. I can give you this and this only. The crime charged here is aggravated assault and not simple assault, but I will read you the definition of simple assault to assist you in your deliberations.” Thereafter, the trial court instructed the jury on the crime of simple assault as provided in OCGA § 16-5-20 (a). He then reinstructed the jury on aggravated assault as provided in OCGA § 16-5-21 (a) (2).

Decided October 2, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Desiree L. Sutton, Shawn E. LaGrua, Assistant District Attorneys, for appellee.

Defendant argues that the trial court’s charge on aggravated assault and its responses to the jury’s inquiries caused “the jury ... to speculate as to the definition of assault as used in the aggravated assault statute.” We do not agree.

The trial court’s charges on aggravated assault were accurate statements of the law. Further, the trial court’s response to the jury’s inquiries regarding the basic elements of aggravated assault could not have reasonably misled or confused the jury. On the contrary, it is our view that the trial court’s comparative approach response was valuable in that it offered perspective from which the jury could dérive meaning from the trial court’s charge on aggravated assault. This enumeration is without merit.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0832, A90A0833.
    TREND-PAK OF ATLANTA, INC. v. ARBOR COMMERCIAL DIVISION, INC.
    (397 SE2d 592)
   Sognier, Judge.

These appeals arise out of two actions filed concerning a construction arbitration award. Trend-Pak of Atlanta, Inc., the project owner, and Arbor Commercial Division, Inc., the contractor, agreed to submit their dispute arising out of the construction of a building to binding arbitration. After the arbitrator rendered an award of $17,000 in favor of Arbor, it filed an action to enforce the award. Trend-Pak moved to vacate the award and also filed a separate action to vacate the award. We have consolidated Trend-Pak’s appeal in Case No. A90A0832 from the trial court’s confirmation of the arbitration award and Trend-Pak’s appeal in Case No. A90A0833 from the denial of its application to vacate the award.

1. In two enumerations appellant contends the trial court should have either vacated the arbitrator’s award or resubmitted the case to the arbitrator for rehearing on the issue of damages. Appellant does not challenge the facial validity of the award, but instead maintains that the brief appellee filed with the arbitrator indicated that a portion of appellee’s damages calculation included damages for work not encompassed by the construction contract, but the arbitrator did not expressly reject those damages in the award. Accordingly, appellant contends, the arbitrator’s award was so vague and indefinite that it could not be determined whether the award included the impermissible damages, and thus the award should be vacated pursuant to OCGA § 9-9-13 (b) (3) because the arbitrator either overstepped his authority or rendered such an imperfect award that a final and definite award was not made. However, the arbitration hearing was not transcribed, and thus there is no record of the evidence adduced at the arbitration hearing for us to review to determine the merits of appellant’s enumerations. “Where the appellant fails to bring up a transcript or otherwise meet his burden of affirmatively showing error by the record, the judgment will not be disturbed. (I)t is well established that (a) brief cannot be used in lieu of the record or transcript for adding evidence to the record.” (Citations and punctuation omitted.) Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989). Accordingly, as appellant presented no evidence in support of these enumerations other than arguments in its briefs and references to statements made in appellee’s briefs, we must assume that the trial court’s ruling confirming the arbitration award was correct. Id.; see Akridge v. Patillo, 44 Ga. 585 (1872).

Moreover, there is no requirement that the arbitrator’s award include specific findings or reasons absent a request by the parties under OCGA § 9-9-39 (a), or that the award “expressly address each and every issue and collateral issue arising in an arbitration.” Cotton States &c. Ins. Co. v. Nunnally &c. Co., 176 Ga. App. 232, 234 (2) (335 SE2d 708) (1985). Nor do we find any ambiguity or indefiniteness on the face of the award. Accordingly, we affirm the judgment of the trial court.

2. Appellant also contends the trial court erroneously granted appellee’s motion to strike two affidavits appellant filed after the scheduled hearing date on the parties’ claims. The record reveals that a hearing on both cases was scheduled for June 23, 1989, but at the call of the case counsel waived argument and agreed to submit briefs in support of their respective motions. Appellant then filed a brief on June 30 that included two affidavits. The trial court granted appellee’s motion to strike the affidavits because they were not filed with appellant’s motions or within one day before the hearing as required by OCGA § 9-11-6 (d) and no extension of time was sought.

Decided September 19, 1990

Rehearing denied October 3, 1990

Johnson & Ward, Baxter P. Jones, for appellant.

Levine & D’Alessio, Morton P. Levine, for appellee.

We find no error. While the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error. Williamson v. Sunshine Oil Co., 176 Ga. App. 661, 662 (1) (337 SE2d 441) (1985). Further, we note that no harm resulted to appellant from the court’s grant of the motion to strike because the affidavits were addressed to matters that could not be reviewed by the court in the absence of a transcript.

3. Appellee has moved this court to assess a penalty for frivolous appeal in accordance with OCGA § 5-6-6 because these appeals were interposed solely for delay. Although the question is a close one given the circumstances, we nevertheless decline to assess a penalty.

Judgments affirmed.

Car ley, C. J., and McMurray, P. J., concur.


author: Banke, Presiding Judge.

text:
    A90A1322.
    DOSSETT v. THE STATE.
    (398 SE2d 24)
   Banke, Presiding Judge.

The appellant was convicted in the Probate Court of Meriwether County of driving under the influence of alcohol. His conviction was affirmed on appeal to the superior court pursuant to OCGA § 40-13-28, and this appeal followed. Held:

1. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty of driving under the influence of alcohol beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the probate court was without power to try him for the offense because it failed to obtain from him a written waiver of his right to trial by jury in accordance with OCGA § 40-13-23 (a). See Rustin v. State, 192 Ga. App. 775 (2) (386 SE2d 535) (1989). However, inasmuch as the case is before us on appeal from the judgment of the superior court, our inquiry is confined to whether that court erred in affirming the conviction. As there is no suggestion that the waiver-of-jury-trial issue was raised in the superior court, we must conclude that it was not preserved for review in the present appeal and is not properly before us.

3. The appellant further argues that the superior court judge was without authority to render a decision in the case because he “holds one of the judgeships which were ruled to have been illegally created in violation of Section 5 of the Voting Rights Act.” However, there is nothing in the record to support any element of this assertion, nor does the record contain any suggestion that this issue was raised in the superior court. Consequently, it presents nothing for review on appeal. See generally Moore v. State, 181 Ga. App. 548, 549 (2) (352 SE2d 821) (1987).

Decided September 4, 1990

Rehearing denied October 3, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

William G. Hamrick, Jr., District Attorney, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A0922.
    WEST v. SHARPE.
    (397 SE2d 616)
   McMurray, Presiding Judge.

Alton J. West (petitioner) filed a petition in the Probate Court of Jenkins County, Georgia, against Frank Sharpe (respondent), the administrator of the estate of Andrew Sharpe, Sr., seeking full settlement of Andrew Sharpe, Sr.’s estate. The probate court ordered the sale of certain real property and directed the proceeds thereof be “placed in the Registry of the Court upon closing of the sale.” An appeal to the superior court followed. The superior court held that the probate court was without jurisdiction to order “the sale of the realty inherited by the heirs of Andrew Sharpe, Sr.” This appeal followed. Held:

“We find no authority in the statutes and none has been cited which empowers a court of ordinary [now probate court] to order the administrator to sell realty in order to pay debts and to make distribution upon the application of an heir. The administrator alone is empowered to petition for authority to sell realty of a decedent when it is necessary for the payment of debts or for the purpose of distribution. Code Ann. § 113-1706 [now OCGA § 53-8-23].” Ireland v. Matthews, 129 Ga. App. 592 (200 SE2d 318). Consequently, since respondent in the case sub judice did not petition the probate court for an order to sell the estate realty, the probate court was without authority to order the sale. The superior court did not err in finding that the probate court was without authority to order the sale.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided October 3, 1990.

E. B. Jones, Jr., R. Hubert Reeves III, for appellant.

Carl C. Brown, Jr., for appellee.


text:
    A90A0979.
    PIEDMONT ARBORS CONDOMINIUM ASSOCIATION, INC. v. BPI CONSTRUCTION COMPANY et al.
    (397 SE2d 611)
   Sognier, Judge.

Piedmont Arbors Condominium Association, Inc. (the “Association”) and thirty-six individuals who own condominiums at Piedmont Arbors in midtown Atlanta brought suit against BPI Construction Company, the condominium builder, and Charles C. Bales, Jr., president of BPI and an officer and director of the Association during the period the units were offered for sale. The complaint alleged claims for breach of warranty, breach of fiduciary duty, negligence, and fraud concerning construction defects in the common areas and some individual units. The trial court dismissed the Association as a plaintiff, and the Association filed this appeal.

The trial court based its decision on paragraph 10.07 of the condominium declaration, which provides that “[e]ach Owner hereby acknowledges and agrees that [appellant] shall not be entitled to institute any legal action against anyone on behalf of any or all of the Unit Owners which is based on any alleged defect in any Unit or the common elements, or any damage allegedly sustained by any Unit Owner by reason thereof, but rather, that all such actions shall be instituted by the Unit Owners owning such Units or served by such common elements or allegedly sustaining such damage.” Appellant contends that under Georgia corporations and condominium law, it has standing to assert the claims at issue, and to the extent that paragraph 10.07 purports to limit that right, it is void as against public policy.

We do not agree, as we find the trial court correctly concluded that paragraph 10.07 of the declaration barred appellant’s claim, and that such a limitation did not violate any public policy of this State. “It is a general rule of contract law that unless prohibited by statute or public policy the parties [to a contract] are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation. [Cits.] ‘A contract can not be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.’ [Cit.]” Brown v. Five Points Parking Center, 121 Ga. App. 819, 821 (1) (b) (175 SE2d 901) (1970). We are bound to exercise extreme caution in declaring a contract void as against public policy, and should do so only when the case is free from doubt and an injury to the public interest clearly appears. Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981).

Decided October 3, 1990.

Hyatt & Rhoads, Jeffrey A. Hurley, Philip S. Downer, Robert G. Ballard, for appellant.

Nall, Miller, Owens & Hocutt, Kenneth P. McDuffie, for appellees.

Absent a public policy interest, contracting parties are free to “contract to waive numerous and substantial rights [cit.],” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 369 (203 SE2d 587) (1973), including the right to seek recourse in the event of a breach by the other party. Id. The contract provision at issue, which waives any right appellant may have to bring suit against appellees for certain construction defects, raises no such public policy question, for there is no statutory prohibition and no illegal or immoral consideration or purpose. See Brown, supra. Appellant’s contention that paragraph 10.07 is an exculpatory clause that is violative of public policy is without merit because the paragraph does not exculpate appellees for any wrongful conduct or release them from liability. Instead, it merely places the cause of action exclusively in the hands of the unit owners, who undoubtedly have an interest in pursuing such claims. OCGA § 13-8-2 (b), cited by appellant, is not controlling because the plain language of that statute limits its application to certain types of indemnification agreements, see, e.g., McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986), and the instant provision is not an indemnification or hold harmless provision. Compare id. Nor does Porubiansky, supra, require a contrary result, for here there is neither a hold harmless clause, a question of regulation of licensed professionals, nor an issue of protection of any other overriding state interest.

We need not reach appellant’s lengthy argument concerning the standing of a condominium association to assert the claims at issue because here the parties agreed in the declaration to limit any such right of appellant, which they were free to do. See Orkin, supra. Accordingly, we affirm the trial court’s decision.

Judgment affirmed.

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


text:
    A90A1017.
    SHERIFF v. THE STATE.
    (397 SE2d 732)
   Sognier, Judge.

John Clinton Sheriff was convicted of cruelty to children, and he appeals.

1. Appellant enumerates the general grounds. At trial evidence was adduced that the victim was the eight month old son of Brenda O’Dell. When O’Dell took the victim to the hospital to have his broken leg treated, the hospital contacted the local authorities regarding the matter. Stephen Harwelick, an investigator with the Gordon County Sheriff’s Department, testified that he discussed the incident with appellant, O’Dell’s boyfriend. Harwelick testified appellant was advised of his rights, waived those rights, and then handwrote a statement in which appellant explained that on May 13, 1989, “while I was shooting cocaine around 7 to 7:30 I was throwing [the victim] up in the air[.] While doing this I accidentally dropped [the victim]. [The victim] was above my head at this time. I did not think he was hurt. I left for work at 12:15 the same night. Brenda came to my job & said something was wrong with [the victim’s] leg. She took him to the doctor and his leg was broke. It must have happened when I dropped him that night. Brenda was in the back bedroom when I dropped [the victim] and did not know I was doing drugs.”

Two workers with the Gordon County Department of Family and Children Services testified that appellant lived with Brenda O’Dell, the victim, and O’Dell’s other child. O’Dell, who was also indicted in connection with this incident, testified that appellant lived with her and her two children and that on the day in question, appellant tended the victim while she was with the other child. She stated it was not until after appellant left for work that she discovered the injury to the victim’s leg. She identified a letter written to her by appellant in which he wrote that he “was playing with [the victim] throwing him up like I always do making him laugh when his head hit the ceiling and he fell out of my hands. He hit the counter top then the floor.”

The State introduced the testimony of Dr. Paul Nassour, who admitted the victim to the hospital, that the bone broken is one of the strongest bones in the body, and that the type of fracture suffered by the victim had required “a little bit of force.” Dr. Joel Hoag, the orthopedic surgeon who treated the victim, testified that the break was a spiral fracture that was unusual and in a curious location, and that a twisting motion with applied force exerted on the limb was required to cause such a break.

We find in the case sub judice that there was sufficient evidence to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 191 Ga. App. 287, 288 (1) (381 SE2d 558) (1989).

2. Contrary to appellant’s argument, the question posed to Dr. Hoag by the prosecutor on redirect did not address new material but rather expanded on Dr. Hoag’s testimony on direct regarding the “twisting motion” required to cause a spiral fracture. The trial court did not abuse its discretion allowing the State’s questioning. See generally Maher v. State, 239 Ga. 305, 306 (2) (236 SE2d 647) (1977).

3. Appellant contends the trial court erred by allowing O’Dell to testify because she had not been included on the list of witnesses provided him by the State pursuant to OCGA § 17-7-110. The prosecutor informed the court that O’Dell had agreed only the morning of the trial to testify against appellant. After appellant’s attorney objected, the trial court then provided him with the opportunity to interview O’Dell during a break in the proceedings, and counsel took advantage of the opportunity to do so. “The purpose of OCGA § 17-7-110, under which the state generally must furnish a list of witnesses upon demand, is to insure that an accused is not confronted at trial with testimony of witnesses whom he has not had an opportunity to interview prior to trial. [Cit.] In the instant case, the trial court allowed counsel for the defendant to interview the witness before she was called to testify, thus satisfying the purpose of the statute. [Cits.]” Kickery v. State, 185 Ga. App. 274, 276 (1) (363 SE2d 805) (1987). See also White v. State, 253 Ga. 106, 109-110 (3) (317 SE2d 196) (1984).

4. Appellant contends the trial court erred by questioning O’Dell. “[T]he trial court may propound questions to any witness for the purpose of fully developing the truth of the case; the extent of such an examination is a matter within the sound discretion of the court. [Cit.] The trial transcript in this case does not support appellant’s assertion of judicial misconduct in this regard. While the trial court in this case did ask [several] questions of [O’Dell], nothing in the transcript even remotely resembles a situation in which the trial court intimated an opinion as to the facts of the case or in which questioning by the trial court was marked by a prosecutorial zeal such as to prevent a fair trial. [Cits.] We find this enumeration to be without merit.” Whiddon v. State, 160 Ga. App. 777, 779 (3) (287 SE2d 114) (1982), overruled in part on other grounds, In re Irvin, 254 Ga. 251, 253-254 (1) (328 SE2d 215) (1985).

As appellant acknowledges in his brief, because he did not object at trial to the introduction of certain documents after the trial court’s questioning of O’Dell, he cannot contend error regarding that matter on appeal. See generally McGarity v. State, 190 Ga. App. 139 (1) (378 SE2d 179) (1989).

Decided October 3, 1990.

T. Joseph Campbell, for appellant.

Darrell E. Wilson, District Attorney, M. Suzanne Hayes, Assistant District Attorney, for appellee.

5. (a) The transcript reveals that the trial court’s charge on voluntary intoxication substantially covered every principle set forth in appellant’s requested charge on that subject. Accordingly, it was not error for the trial court to refuse to give appellant’s charge in the exact language requested. See generally Shy v. State, 190 Ga. App. 370, 372 (4) (a) (378 SE2d 920) (1989).

(b) We find no error in the trial court’s charge to the jury on criminal negligence. Even assuming, arguendo, the charge set forth a standard more favorable to appellant than that required in criminal cases, appellant has failed to show how such a charge could have harmed him. Harm as well as error must be shown to authorize a reversal by this court. Baptiste v. State, 190 Ga. App. 451, 453 (1) (379 SE2d 165) (1989); Craig v. Augusta Roofing &c. Works, 78 Ga. App. 514, 515-516 (3) (51 SE2d 565) (1949).

(c) The transcript fails to support appellant’s argument that the trial court overemphasized the word “guilty” when charging the jury regarding the form of the verdict.

6. Although appellant contends the trial court erred by omitting numerous charges earlier given when it recharged the jury, appellant’s objection at trial was only to the trial court’s failure to recharge the jury on the essential element of intent. The transcript reflects that after deliberating for some time, the jury submitted three questions to the court. Although the questions were not included in the record, after the trial court recharged the jury solely on accident and criminal negligence the transcript reflects that the jury indicated to the trial court that those recharges answered their question. “It is not error to limit a recharge to the question asked. [Cit.] In fact, ‘(r)esponding to a jury’s request to restate portions of the charge is generally required of the trial judge, (cit.), and it is within the court’s discretion to recharge only that which is specifically requested. (Cit.)’ [Cit.] The trial court did not abuse its discretion by limiting its recharge to the specific questions asked.” Shy v. State, supra at 372 (6).

Judgment affirmed.

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


text:
    A90A1207.
    EDENS v. THE STATE.
    (397 SE2d 612)
   Sognier, Judge.

Tommy Edens was convicted at a bench trial of misdemeanor theft by taking, and he appeals.

Vicki and Todd Stephens testified that they purchased a Yamaha motorcycle from appellant, paying him $300 and entering into a verbal agreement that the balance of $300 would be paid within six months but that there was no regular schedule of payments. The couple testified that approximately six weeks later, appellant called them and asked to borrow the motorcycle until his own vehicle had been repaired. According to the Stephenses* at the time of the phone call and at the time appellant got the motorcycle no mention was made about appellant needing to be paid more money for the motorcycle. However, two weeks later when the couple contacted appellant, he informed them he had repossessed the motorcycle for lack of payment. Vicki Stephens testified that after several demands on appellant for either the return of the motorcycle or refund of the $300 downpayment, appellant told them he would refund them the down-payment as soon as he sold his car. She acknowledged that the motorcycle had been damaged while in their possession, but stated the damage was minor, and that Todd Stephens had offered to pay for the damage in exchange for the refund. Todd Stephens testified that appellant told him he would refund the $300, but other than a check for $10 proffered to him by appellant at work on the day Vicki Stephens obtained a warrant for appellant’s arrest, he had received no repayment. Todd Stephens responded negatively when asked by the trial judge, “[i]n point of time, was [the check proffered by appellant] after the warrant had been served on him?” No other evidence addressed the question whether appellant’s payment to Todd Stephens was made before or after the warrant was served.

Appellant testified that motorcycles were his hobby, but that although he had bought and sold several motorcycles, he had financed only the very first motorcycle he had purchased. Appellant stated that Todd Stephens, a high school friend, approached him about buying his motorcycle. Appellant accepted payments of $200 one week and $100 the following week, then allowed Todd to take possession of the motorcycle. Appellant testified they agreed that the Stephenses would pay him $25 a week until the balance of $300 was paid. Appellant stated he told Todd that another person held a security interest on the motorcycle and that Todd could pay the $25 weekly amount either to appellant or directly to the holder of the security interest. After several weeks during which he received no payments from the Stephenses, appellant testified he called Todd, told him he needed either the money or the motorcycle, and was told by Todd “to come pick it up.” At a meeting two weeks after he got the motorcycle, appellant testified he and Todd agreed that appellant would refund what was left of the $300 downpayment after paying for repairs to the motorcycle. Appellant said he spoke to Todd Stephens several times after this agreement when Todd came by appellant’s work place to inquire about the estimates appellant had received on the repair of the bike. He stated that the day after Todd called him asking him about the money, he gave Todd the check for $10, which was accepted with thanks.

Appellant contends the trial court erred by finding him guilty of theft by taking because the trial court improperly based its judgment on the fact that appellant had not perfected a security interest in the motorcycle. The transcript reveals that after the close of the evidence, the trial judge stated that “if you don’t perfect a security interest, you don’t have the right to repossess. ... If someone sells something to someone, and takes back a security interest, they have to do what the UCC, Uniform Commercial Code requires, . . . you perfect a security interest, . . . [and] if someone doesn’t pay, you can go take it back, and you are not violating the law, it’s called self-help, and it’s a very important part of our law, and I have seen that, people follow it and use it. I wish [appellant] had done that.... I’m convinced beyond a reasonable doubt that [appellant] sold a motorcycle to [the Stephenses]. He took $300 for that motorcycle. He may have had an agreement that [the Stephenses] pay $25 a week, but unless he perfected a security interest, he doesn’t have a right to take it back. . . . He can’t have the motorcycle and the $300. ... I wish he had perfected a security interest. . . . [H]e has clearly taken something he sold to somebody, and he’s taken it back, and yet he didn’t give [them] their money back, and as much as I hate to find that, I’m convinced beyond a reasonable doubt that this happened.”

We reverse. OCGA § 16-8-2 provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property.” The statements above indicate that the trial court did not believe the Stephenses’ testimony that appellant had obtained the motorcycle by a ruse, but instead believed appellant’s testimony that he had taken back the motorcycle for the Stephenses’ failure to make the weekly payments on the machine. Since the credibility of witnesses is solely a question for the trier of fact, Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988), we must accept the trial court’s finding in this regard. However, because the trial court did not credit the Stephenses’ testimony, it thus appears that the trial court’s judgment of guilt was not based on appellant taking the motorcycle with the criminal intent to deprive the Stephenses of the machine, but rather was based on appellant repossessing the motorcycle without having followed steps the trial court deemed necessary to perfect a security interest in the machine under the UCC. Even assuming, without deciding, that the method appellant used to reclaim the motorcycle was legally deficient, the evidence as found by the trial court nonetheless establishes that appellant did not possess the requisite criminal intent when he took the motorcycle, since he was acting on what he thought was an honest claim of right to the property or to acquire the property as he did. See OCGA § 16-8-10 (2).

Decided October 3, 1990.

Clifford S. Lancey, for appellant.

Roger G. Queen, District Attorney, J. L. Floyd, Assistant District Attorney, for appellee.

“[T]he guilt of the accused depends upon the intent with which the act was committed, and intent is a material ingredient of the crime. [Cit.]” Scott v. State, 46 Ga. App. 213, 217 (167 SE 210) (1932). Based on the trial court’s findings that appellant did not possess the criminal intent necessary for theft by taking, in that his intent was to repossess an item under an honest claim of right after the purchasers defaulted on their payments, we must reverse the judgment.

Judgment reversed.

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


text:
    A90A1508.
    WYCHE v. THE STATE.
    (397 SE2d 738)
   McMurray, Presiding Judge.

Defendant was accused of violating the Georgia Controlled Substances Act (possession of cocaine) and entered a guilty plea. He was sentenced to serve eight years, four years in confinement and the remaining four years on probation. One of the conditions of probation reads as follows: “Upon release from incarceration, immediately leave the area comprising the Georgia counties of Brooks, Colquitt, Echols, Lowndes and Thomas, and do not return into said area at anytime.” Defendant appeals, asserting the trial court erred in imposing banishment as a condition of probation. Held:

1. Defendant posits that the condition of banishment imposed by the trial court is unlimited in its duration and, therefore, void. We disagree. Inasmuch as the banishment is a condition of probation, it is obvious that the banishment is to be in effect only during defendant’s probation. Compare Kerr v. State, 193 Ga. App. 165, 169 (6) (387 SE2d 355), in which the defendants in that case were banished indefinitely as a condition for suspending their sentences. Thus, the trial court’s order in the case sub judice simply prohibits defendant from entering the prescribed counties at “anytime” during the probationary period.

Decided October 3, 1990.

Tillman, McTier, Coleman & Talley, Richard L. Coleman, William E. Holland, for appellant.

H. Lamar Cole, District Attorney, Catherine H. Helms, Assistant District Attorney, for appellee.

2. Defendant contends the banishment condition is unreasonable in that it does not fit within a rehabilitative scheme designed for defendant’s benefit. This contention is without merit. There was no showing that the banishment condition fails to serve a rehabilitative function. See generally State v. Collett, 232 Ga. 668, 670, 671 (208 SE2d 472). Besides, when it comes to drug crimes, banishment obviously serves a rehabilitative function in that it removes the offender from a locale in which he previously succumbed to the temptation of drugs.

3. Defendant’s assertion that the sentence is ambiguous is not meritorious. Inasmuch as the banishment condition is a special condition of probation, it will simply expire upon the expiration of the probationary term. We find no ambiguity here.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in Division 1, Division 3 and in the judgment.


author: Birdsong, Judge.

text:
    A90A1537.
    BOYNTON v. THE STATE.
    (397 SE2d 615)
   Birdsong, Judge.

Jeffrey Neal Boynton appeals his judgment of conviction for two counts of child molestation, and his sentence.

The victim, who was age twelve at the time of the incidents, was the cousin of appellant’s wife. The victim testified that appellant did on more than one occasion fondle her and commit the criminal acts averred in the two counts of the indictment. Her testimony was partially corroborated by her mother, sister, school counselor, and a criminal investigator from the sheriff’s department, although none of the State’s witnesses other than the victim actually observed the incidents. The victim’s sister testified that on more than one occasion appellant asked her if he could touch her breasts. The sister was approximately thirteen years old at the time.

Appellant denied committing the acts and asserted that he had been accused as part of a family conspiracy to destroy his marriage — appellant was age 22 when he married his 15-year-old wife. He also denied asking the victim’s sister if he could touch her breasts. His testimony was partially corroborated by his wife who testified appellant was never alone with the girls; that if something had happened and the girls had cried out she would have heard them; and that she believed her husband. Two character witnesses testified in appellant’s behalf. Held:

1. Appellant asserts that the trial court erred by admitting, over appellant’s objection, the testimony of the sister regarding another similar transaction. Appellant argues, inter alia, that the alleged similar transaction evidence does not involve the same victim as the charges nor does it involve “molestation acts” perpetrated in front of or against a different victim; rather, the transaction involved is “conversation” between appellant and the victim’s sister, and the “conversation” does not concern any “acts” which allegedly occurred with the victim.

Assuming without deciding the similar transaction conduct was accomplished by conversations rather than non-verbal acts, it nevertheless involved a form of criminal solicitation or enticement. Compare OCGA §§ 16-4-7 and 16-6-5.

Evidence of similar transactions or crimes is admissible where its relevance to prove identity, motive, intent, bent of mind, absence of mistake or accident, plan or scheme, or course of conduct, outweighs its prejudicial impact, and further provided the requisite two-prong test of Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) and Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270) has been met. Oiler v. State, 187 Ga. App. 818 (2) (371 SE2d 455).

We are satisfied that the similar transaction evidence in the case sub judice meets this test. Appellant’s enticement and solicitation of the victim’s sister to allow him to fondle her breasts is per se a form of sexual abuse. “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts [or other conduct] perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Oller, supra at 820; accord Daniel v. State, 194 Ga. App. 495 (1) (391 SE2d 128). Moreover, “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649 (3) (250 SE2d 394); Oller, supra at 821. Further, this evidence was introduced for a limited purpose, and the trial court gave the jury a limiting instruction as to its use in the closing charge. Appellant has not challenged the sufficiency of the charge. See generally Daniel, supra at 496, citing Terry v. State, 259 Ga. 165, 169 (1) (377 SE2d 837). For the above reasons no error appears.

Decided October 3, 1990.

Mathews, Knight & Harwell, Ronald H. Harwell, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

2. Appellant asserts the verdict was contrary to the evidence and the principles of justice. On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1650.
    HORAN v. PIRKLE.
    (397 SE2d 734)
   Birdsong, Judge.

Appellant, Betty Horan, appeals the final judgment and decree entered against her in the action for theft and conversion brought by appellee, Omergene C. Pirkle.

This action arises from the averred taking of certain personal property of appellee’s deceased husband who was appellant’s brother. Held:

1. Appellant alleges the trial court erred in admitting in evidence certain hearsay testimony under the provisions of OCGA § 24-3-8. Appellant asserts, inter alia, that the statements of the deceased were inadmissible, because they were made while litigation actually was pending and not merely with a view toward litigation. Pretermitting the question whether the trial judge breached his discretion in admitting the deceased’s statements, as deceased and appellee had a divorce action pending at the time the statements were made, is the question whether appellant has preserved her right to appeal this particular issue by posing a timely and specific objection thereto before the trial court.

The trial record reflects the following pertinent colloquy: “[AP-PELLEE]: I called my husband at [appellant’s] . . . and asked him if he took it. He said he didn’t take a damn thing.. . . [APPELLANT’S COUNSEL]: Your Honor, I think . . . this is all hearsay. If we’re going to get into what Mr. Pirkle said we’re going to have a lot of testimony. . . . THE COURT: I think she can do that if it’s a declaration against his interest but go ahead. This will make it a little bit clearer. [APPELLEE’S COUNSEL]: I’m not getting into that anyway.” Thereafter, appellant posed no additional comments regarding the testimony that deceased had denied taking the property.

If the comment of appellant’s counsel was intended to raise a timely, specific objection to the above testimony, it was not in proper form and apparently was misleading to the trial court who did not expressly rule thereon. Compare Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411). Moreover, after the trial judge announced his preliminary interpretation of the evidence in question, appellant failed to pose a specific objection to the testimony, did not assert that the evidence failed to qualify as a declaration against interest, and in essence acquiesced by silence in the trial court’s evaluation of the nature of the evidence received. “ ‘One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.’ ” Stephenson v. Wildwood Farms, 194 Ga. App. 728, 729 (2) (391 SE2d 706). Moreover, assuming arguendo error had occurred in the admission of this particular evidence, we believe it was not inconsistent with appellant’s theory of defense, and that any error was harmless within the meaning of OCGA § 9-11-61.

Subsequently, an additional statement of the deceased was offered in evidence and the following colloquy occurred: “[APPELLEE’S COUNSEL]: Mrs. Pirkle, did you have any other discussions with Mr. [Pirkle] about missing items? . . . THE COURT: I think under the case law she can — if it was a declaration against his interest, which apparently it was — I take it he’s going to say he took the items or whatever. [APPELLEE’S COUNSEL]: Yes, sir. THE COURT: All right. Go ahead. [APPELLANT’S COUNSEL]: Your honor, again, I would like to object on the basis that he is not a party. ... I agree that it was a declaration against interest in a party, there’s no question about it. These are separate parties in this group. We can’t be responsible for what he may have said. THE COURT: I understand. But I think in fact if he was a party — [APPELLANT’S COUNSEL]: I don’t see how it — THE COURT: — that we couldn’t do it. We’ll allow it. Go ahead.” (Emphasis supplied.)

Appellant’s objection to this particular testimony clearly was based on the sole ground that the declarant was not a party in the case sub judice. The trial court did not err in overruling this specific objection, as it is not necessary for purposes of OCGA § 24-3-8 that a declarant be a party or in privity with a party. Compare Field v. Boynton, 33 Ga. 239 and Massee-Felton &c. Co. v. Sirmans, 122 Ga. 297 (50 SE 92); Green, Ga. Law of Evid. (3d ed.), Admissions, § 240.

Appellant, did not pose a timely objection at trial to the deceased’s statement on the specific grounds now asserted in her brief. “Thus, in regard to these new matters, there is nothing for us to review . . . since appellant failed to make [her] objection at trial on the specific ground [s]he now attempts to raise on appeal.” Gully v. Glover, supra at 242; accord Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783-784 (321 SE2d 110). Accordingly, this enumeration of error is without merit.

Decided October 3, 1990.

Westmoreland, Patterson & Moseley, Thomas H. Hinson, for appellant.

Thomas F. Jarriel, for appellee.

2. Appellant asserts that the trial court erred in failing to direct a verdict in her favor, in failing to set aside the verdict for appellee, and in denying appellant’s motion for a new trial.

To the extent that this enumeration is premised on error allegedly committed by the introduction of hearsay testimony regarding statements made by Mr. Pirkle, now deceased, it provides appellant no relief. See Division 1, above.

Regarding appellant’s assertion of insufficiency of evidence: “ ‘ “The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard” ’ ” (Clemons v. Allstate Ins. Co., 193 Ga. App. 489 (2) (388 SE2d 357)), and “[t]he evidence . . . must be construed in favor of the party opposing the motion for directed verdict” (Smith v. Ross, 255 Ga. 193, 194 (336 SE2d 39)). Additionally, “[a] . . . judge’s denial óf a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations, punctuation and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373). Finally, a jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law. Archer Motor Co. v. Intl. Bus. Invest., 193 Ga. App. 86, 88 (2) (386 SE2d 918); Smith v. Clifford H. Pryor &c., 193 Ga. App. 523, 524 (388 SE2d 383). Examining the record in the light most favorable to the verdict and judgment, we are satisfied that the trial court did not err in its rulings, and that the judgment and verdict are amply supported by competent evidence of record.

Appellant’s other assertions are without merit.

Judgment affirmed.

Banke, P: J., and Cooper, J., concur.


text:
    A90A1657.
    JACKSON v. THE STATE.
    (397 SE2d 737)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine. The evidence adduced at a motion to suppress hearing revealed the following:

Officer G. H. Watkins of the DeKalb County Police Department, an experienced drug enforcement officer, was assigned to patrol a “well-known drug area” on January 11, 1990. Officer Watkins was alone, he “was on foot” and he was wearing a uniform.

Officer Watkins moved into an area of high pedestrian traffic, he concealed himself “in some bushes . . .” and he began a surveillance so as “[t]o find anybody selling dope or basically in possession of it.” With the aid of binoculars, the officer soon “saw two males walking, in dark clothing, [and] one of the subjects had in his hand what appeared to be a hit of crack [cocaine].” More specifically, the officer, who was then about “25 or 30 yards” from the suspects, observed one suspect display what appeared to be crack cocaine while walking very closely to the other suspect. Officer Watkins “immediately crouched back down behind the bushes because [the suspects] were walking toward [him. The officer] waited until they passed . . . and [he] stopped both of them, leaned them against the wall [and] patted them down.” Officer Watkins found “crack cocaine . . .” in defendant’s jacket pocket. He found “a small amount of powder cocaine” in the other man’s pants pocket.

After the close of evidence, the trial court found probable cause for defendant’s arrest and denied the motion to suppress. This appeal followed defendant’s conviction for possession of cocaine. Held:

In his sole enumeration, defendant contends the trial court “erred in denying [his] Motion to Suppress ... in that a) there was no articulable suspicion justifying a stop and b) the ensuing ‘pat down’ exceeded the scope of a constitutionally permitted Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889),] stop.”

“An arrest without warrant, under both the United States Constitution, Articles IV and XIV, and the Constitution of Georgia of 1983, Art. I, Sec. I, Par. XIII, ‘ “is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” ’ Wright v. State, 189 Ga. App. 441, 443 (375 SE2d 895); accord Burroughs v. State, 190 Ga. App. 467 (2) (a) (379 SE2d 175).” Newsome v. State, 192 Ga. App. 846, 847 (2) (386 SE2d 887).

In the case sub judice, Officer Watkins testified that he did not notice if defendant was the suspect holding the packaged crack cocaine before the arrest. However, the officer explained that he suspected the suspects to be involved in an illegal drug transaction because one of the suspects displayed crack cocaine as they were walking very closely together in a “well-known drug area.” We find' this evidence sufficient to authorize probable cause for a belief that both defendant and his confederate were involved in an illegal drug transaction before their arrest. Consequently, the search of defendant was authorized as incident to a lawful arrest. See State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198). The trial court did not err in denying defendant’s motion to suppress.,

Decided October 3, 1990.

Corrine Mull-Milsteen, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Desiree L. Sutton, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1658.
    BROWN v. THE STATE.
    (398 SE2d 34)
   Birdsong, Judge.

Dallas Leo Brown appeals his sentence and conviction of two counts of robbery. His sole enumeration is the trial court erred in admitting into evidence appellant’s prior armed robbery conviction.

Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crimes on trial merely because he is a man of bad character. Rich v. State, 254 Ga. 11, 13 (1) (325 SE2d 761), accord Robinson v. State, 192 Ga. App. 32, 33 (383 SE2d 593). Thus, such evidence is not admissible if its only effect is to place the defendant’s bad character before the jury. Moore v. State, 254 Ga. 674, 676 (333 SE2d 605). “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” (Citations and punctuation omitted.) Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455); see Robinson, supra at 34; see Rich, supra at 14 (eleven-year lapse of time did not preclude admissibility). Although there must exist “sufficient similarities” within the meaning of the above rule, the two occurrences need not be identical. See Brown v. State, 250 Ga. 66, 73 (5) (295 SE2d 727).

In determining whether evidence of similar transactions meets the above admissibility requirements, an appellate court may look to all the competent evidence contained in the record. Compare Bethay v. State, 235 Ga. 371, 374-375 (219 SE2d 743) (overruled motion for directed verdict); Robinson v. State, 194 Ga. App. 432, 433 (2) (390 SE2d 652), citing Stapleton v. State, 235 Ga. 513, 515 (1) (220 SE2d 269) (voluntariness of confession); Newsome v. State, 192 Ga. App. 846 (1) (386 SE2d 887), citing Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (legality of search); Walton v. State, 194 Ga. App. 490, 491 (1) (390 SE2d 896) (disclosure of informant’s identity); see also Goins v. State, 245 Ga. 62 (2) (262 SE2d 818). Among the relevant evidence which may be considered are the admissions of fact, and the reasonable inferences which may be drawn therefrom, made by appellant during his in-court testimony (see generally Cape v. State, 165 Ga. App. 825 (303 SE2d 77)), and the certified copy of defendant’s plea of guilty to the four counts in the indictment and the four-count indictment, with the averments to each count, in State’s Exhibit 1 of the trial record (see Masters v. State, 186 Ga. App. 795 (2) (368 SE2d 557)). As a general rule, Georgia law favors admission of any relevant evidence however slight its probative value. Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536).

Competent evidence of record reveals the following similarities between the robberies committed in the case sub judice in September 1989, and the previous four armed robberies committed during the months of October and November 1979. Defendant was identified on the record as having pled guilty to the 1979 offenses, and as being one of the men who committed the two alleged 1989 robberies. The robberies all occurred at commercial establishments, which were all “late-night” stores. The stores were all located within the Metro Atlanta area. Appellant was accompanied in the 1989 robberies by one or more co-accomplices; he admitted in court that there were co-defendants in the 1979 cases. A weapon was used in the 1979 armed robberies; no weapon was seen in the 1989 robberies, but the perpetrators asserted they possessed and threatened violence with a weapon. Both as to the 1979 and the 1989 robberies, appellant at least initially denied to the police that he had committed the crimes. At least one store robbed in 1979 and one store robbed in 1989 was a Tenneco store. In 1979, appellant robbed the same Arby’s restaurant twice within a two-week period, thereby exhibiting a willingness to return to the crime scene. In 1989, he returned to the same Majik Market crime scene the same evening and attempted to steal money. Money was stolen in every robbery except the 1989 robbery of beer at the Majik Market, and appellant and a co-accomplice returned to that store the same evening to demand money.

Decided October 3, 1990.

Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Kenneth D. Feldman, Joseph J. Drolet, Assistant District Attorneys, for appellee.

“[I]nitial admissibility of evidence is a matter which rests largely within the sound discretion of the trial judge. [Cit.]” Masters, supra at 797. We find no abuse of discretion of the trial court in admitting evidence of prior armed robberies for the limited purpose for which the jury properly was instructed. Appellant’s assertions are without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1701.
    HARPER v. L & M GRANITE COMPANY, INC.
    (397 SE2d 739)
   Birdsong, Judge.

This is a discretionary appeal granted pursuant to OCGA § 5-6-35. Appellant Curtis Harper alleges an on-the-job injury with appellee L & M Granite Company, Inc. (hereinafter L & M) occurring in October, 1987. Appellant filed a claim for workers’ compensation in May 1989. The trial court found inter alia that appellant’s claim against L & M was barred by the one-year limitation contained in OCGA § 34-9-82. Held:

1. Appellant asserts that the trial court erred in failing to affirm the board’s findings that he had given proper notice of injury by accident as contemplated by OCGA § 34-9-80. Because of the result reached in Division 2 below, we believe it necessary to address the issue of notice at this time.

“The question as to adequacy of notice of the accident required by OCGA § 34-9-80 was laid to rest in Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976), which renounced a prior Supreme Court decision to the contrary and held: A liberal construction must be given to effectuate the humane purposes for which the Workers’ Compensation Act was enacted. OCGA § 34-9-80 does not require that notice of an injury or accident must show that it arose out of and in the course of the employment. The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so.” (Citations and punctuation omitted.) Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 482 (1) (d) (382 SE2d 150). The notice need not be in a particular format, but the employee carries the burden of giving timely notice, which will indicate to the proper statutory recipient thereof that “ ‘there exists at least a possibility that the injury complained of may be job-related’ ” (Wilson v. Manville Bldg. &c. Prods., 179 Ga. App. 408, 409-410 (346 SE2d 851)) so that the employer “ ‘ “may make an investigation if [he] sees fit to do so.” ’ ” (State of Ga. v. Mitchell, 177 Ga. App. 333, 334 (1) (339 SE2d 384); Carroll v. Dan River Mills, 169 Ga. App. 558, 561 (1) (313 SE2d 741)).

A superior court, when sitting as an appellate body, is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence and witness credibility. Maddox, supra at 481. In this case appellant testified that he had immediately notified his immediate supervisor, Stanley Mills, of his injury; that Mills had told the President of L & M, Mack Thornton, about it; and that appellant did, the next day or within a few days of the injury, personally inform Mack Thornton that he had hurt his back operating the polishing mill. The record also reflects that on October 21, 1987, within 30 days of the alleged injury, appellant visited a doctor, and that Mack Thornton received a call from the doctor’s office informing him that appellant had injured his back and claimed it occurred on the job, and inquiring whether “this particular call [would] be on workman’s compensation.” The record in its entirety clearly meets the “any evidence” of notice requirement, and the findings of the ALJ and board must be sustained as to that issue.

2. Appellant asserts that the trial .court erred in overturning the holding of the ALJ and board that L & M made certain payments of benefits to appellant that activated the two-year statute of limitation of OCGA § 34-9-82, and in holding that appellant’s claim was barred by the one-year statute contained within this same Code section.

(a) OCGA § 34-9-82 contains certain exceptions to the one-year statute of limitation not found in its predecessor statute, Code Ann. § 114-305, as the latter statute existed before the comprehensive revision of the Workers’ Compensation Act in 1978. See generally Ga. L. 1978, p. 2220, § 2; compare Code Ann. § 114-305 (Harrison Code 1973 ed.) with Code Ann. § 114-305 (Harrison Code 1990 ed.). OCGA § 34-9-82 (a) provides that “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made ... by the employer on account of the injury the claim may be filed . . . within two years after the date of the last payment of weekly benefits.” (Emphasis supplied.) It is uncontroverted that appellant filed his claim more than one year but less than two years after the date of his injury.

The ALJ and board specifically found that “[t]he employee was off for several weeks and the employer paid him for a two-week period. . . . [Tjhat was payment in lieu of compensation and that the statute of limitations of two years has not run.” The superior court held that “[e]ven under the ‘any evidence’ rule . . . there was no evidence to support the [bjoard’s holding that it was in payment in lieu of [workers’ [compensation benefits.” In so holding the court noted that “[t]he only evidence as to the payments beyond that of the employee of his receiving the amount is that of . . . [the] President of L & M. He testified that the amount was an advance for he recognized the usually long delay of receiving health insurance benefits. This is the only evidence as to the nature of the payment. Therefore, the [c]ourt finds that said payments were not in lieu of benefits.” (Emphasis supplied.)

The record reflects that the president of the company, Mack Thornton, denied payments were made so that appellant would not file a workers’ compensation claim, that Thornton authorized the claim to be filed against group insurance, and that when he gave the so-called “advance,” he believed appellant would be returning to work. Thornton, however, further testified that the payments were made on an L & M check, and admitted at the hearing that he was paying wages to appellant when the latter was out of work. Thornton also admitted that he sent a separation notice to appellant around the first of December of 1987, but asserted that it was because appellant failed to report back to work on the date promised:

Appellant testified he notified Mack Thornton that he wanted workers’ compensation, and that Thornton did not want him to file under workers’ compensation for his injury. Mack Thornton, his employer at L & M, paid appellant by check for 70 hours work at $6.50 per hour, during the two-week period that appellant was off work. When asked why Mr. Thornton had paid by check for 35 hours a week at $6.50 an hour, appellant testified, “I hadn’t filed it on my insurance, you know. I did like he told me to do, not to file it on insurance.” Appellant testified that at all times he was only doing as he was told. He further testified that before he could report back to Thornton, “I got something in the mail . . . that he was firing me,” and that appellant was still injured at the time.

Upon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. See generally Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (2) & (3) (224 SE2d 65); see Raley v. Lanco Paint &c., 190 Ga. App. 462, 465 (3) (379 SE2d 196). Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses. Maddox, supra at 481 (1) (b, c); Howard Sheppard, supra at 410 (4) & (5); accord Thomas v. Harrison Poultry Co., 194 Ga. App. 353 (390 SE2d 308). Construing the evidence in the light most favorable to the party who prevailed before the board, in this instance the appellant, we find that there exists some evidence from which the ALJ and board could find that the payments made were in lieu of compensation. Specifically, the factfinders could infer from a combination of the testimony of appellant and Mack Thornton that L & M elected to pay appellant benefits on account of his injury in lieu of having him immediately file a claim for workers’ compensation, as Mack Thornton, President of L & M, desired not to process the claim under workers’ compensation but as an insurance claim. Incidentally, it also could be inferred that L Si'W' was motivated to make benefit payments as there was a delay in the payment of insurance claims which, if not off-set by timely benefit payment, might cause appellant to file for workers’ compensation instead. As the findings of the ALJ and board are supported by evidence of record which meets, albeit barely, the “any evidence” standard of review, we find that the trial court has erred to the prejudice of appellant, and that appellant has timely filed his claim within the two-year limitation period of OCGA § 34-9-82 (a).

(b) Appellee’s reliance on Davis v. Union Camp Corp., 188 Ga. App. 36 (371 SE2d 898) is misplaced, as the facts of the case sub judice are distinguishable. In Davis the issue before this court was whether an employer was entitled to a credit for salary paid to an employee in lieu of workers’ compensation disability benefits in the absence of compliance with Board Rule 220 (b), as it existed at the time in question. The issue currently before us is whether the record contains “any evidence” that the payment made to appellant qualified as the payment of weekly benefits on account of the injury so as to bring appellant’s claim within the two-year time limitation exception of OCGA § 34-9-82. We have answered this question in the affirmative in Division 2 (a), above.

Appellee also asserts that the disposition of this case should be controlled by our holding in Mason v. City of Atlanta, 124 Ga. App. 849 (186 SE2d 285); compare Reliance Ins. Cos. v. Richardson, 137 Ga. App. 678 (1) (224 SE2d 812); Hennessee v. Jennings, 48 Ga. App. 188 (3) (172 SE 583). But to the extent that these cases and their progeny held, or opined by way of dictum, that in the absence of an approved agreement or award, payments made to an employee are mere gratuities, for which the board is not authorized to give the employer/insurer credit, they were either overruled or disapproved in Sprayberry v. Commercial &c. Ins. Co., 140 Ga. App. 758, 762 (3) (232 SE2d 111). Moreover in 1978, Georgia changed the method of compensation payment “from the agreements system to the direct payment system” (Clarke v. Samson Mfg. Co., 177 Ga. App. 149, 151 (1) (338 SE2d 738)). There exists, however, a line of older cases prior to 1978 and when the “agreement system” was in effect, wherein it was held that the one-year time limitation in then Code Ann. § 114-305 was not tolled “by the voluntary payment of wages or doctor’s and hospital bills by the employer. . . .” United States Cas. Co. v. Owens, 109 Ga. App. 834, 837 (137 SE2d 543), overruled on other grounds, Brown Transport Corp. v. James, 243 Ga. 701, 702 (257 SE2d 242); accord Hartford &c. Indem. Co. v. Snyder, 126 Ga. App. 31 (9) (189 SE2d 919) (making of gratuitous payments); overruled on other grounds in Sprayberry and Brown, supra; Baggett Transp. Co. v. Barnes, 109 Ga. App. 98 (135 SE2d 343), distinguished and disapproved to extent language is contrary to holding in Sprayberry, supra; Withers v. Fulwood, 89 Ga. App. 113 (2) (78 SE2d 865); Thomas v. Lumbermen’s Mut. Cas. Co., 57 Ga. App. 434, 437 (195 SE 894) (dictum), disapproved to extent languafe is contrary to holding in Sprayberry, supra; Attaway v. First Nat. Bank, 49 Ga. App. 270 (175 SE 258), disapproved to extent language is contrary to holding in Sprayberry, supra; New York Indem. Co. v. Allen, 47 Ga. App. 657 (171 SE 191). To the extent the language in these cases, regarding voluntary or gratuitous payments not tolling the one-year statute of limitation, has not been overruled by Sprayberry, we find such precedent not to be dispositive. These cases'.concern the specific issue of the “tolling” of the then existing one-year statute of limitation. See generally Code Ann. § 114-305 (Harrison Code 1973 ed.). In 1978, Code Ann. § 114-305, now OCGA § 34-9-82, was substantially modified expressly to provide that the two-year limitation would apply when “payment of weekly benefits has been made ... on account of the injury.” The statute on its face does not distinguish between payments of weekly benefits made voluntarily and those made otherwise; all that is required to trigger the two-year limitation is that the payment, whether voluntarily made or not, was tendered as a weekly benefit on account of the injury. We must presume the legislature was aware of the above precedent when it chose to expand the scope of the statute of limitation now found in OCGA § 34-9-82 (a). See generally McPherson v. City of Dawson, 221 Ga. 861, 862 (148 SE2d 298). Moreover, if the legislature had intended not to allow weekly benefits paid voluntarily to trigger the two-year limitation, it would have been an easy task to have so provided. Thus, the above cases are not controlling in the interpretation of the two-year limitation in OCGA § 34-9-82 (a).

Decided October 4, 1990.

Stephen C. Carter, for appellant.

Woodson & Hanofee, H. Clifton Woodson, for appellee.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1776.
    WHITE v. THE STATE.
    (398 SE2d 35)
   Birdsong, Judge.

Andre White appeals his judgment of conviction and sentence of aggravated assault by shooting the victim with a pistol. Appellant’s trial counsel died subsequent to trial, and appellant filed a habeas corpus petition based on three allegations of inadequacy of counsel. None of these allegations involves the specific enumeration of error asserted in this appeal. The superior court did not rule on the ineffective assistance issue, but after finding that appellant did not receive an appeal through no fault of his own, granted appellant the right to file an out-of-time appeal.

Appellant’s sole enumeration of error is that the record fails to show an intelligent and express waiver of the right to trial by jury. This issue may be raised for the first time on appeal. Wooten v. State, 162 Ga. App. 719, 720 (293 SE2d 11).

“A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Citations and punctuation omitted.) Lark v. State, 190 Ga. App. 821, 822 (3) (380 SE2d 505); Hill v. State, 181 Ga. App. 473 (1) (352 SE2d 651).

The transcript reflects this colloquy: “[Defense Counsel:] I’m going to write on this indictment ‘jury waived’ and have my client sign it. The Court: All right. [Defense Counsel:] [T]his. is your decision, right? Is this your decision to waive. . . . [Accused:] Yes. The Court: All right, are you ready to proceed. . . . [Defense Counsel:] Yes, I am, judge.” (Emphasis supplied.) When the court reconvened, following a brief recess and before trial proceeded on the merits, the trial judge pertinently announced, “[Accused] has waived jury trial, agreeing for his case to go to trial before the judge sitting without a jury” (Emphasis supplied.) Moreover, during his opening statement and before any witnesses on the merits were called to testify, defense counsel stated in open court, “We’re concerned with only one thing, the shooting that took place on the date in question. And I think after you hear the evidence you will conclude that this man is not guilty of any crime; that he exercised his right of self-defense. ...” (Emphasis supplied.) At no time did appellant object to proceeding without a jury, or raise any questions concerning such procedure. Further, the first page of the indictment reflects the notation, “Jury waived this May 11, 1988,” together with the signature of the defendant, “Andre L. White.”

Decided October 4, 1990.

The facts of this case clearly are distinguishable from those found in Lark, Hill, and Wooten. In this case the record affirmatively shows that the accused personally, with assistance from his counsel, waived his right to trial by jury both orally on the record and in writing on the indictment. The record further reflects that the accused was timely placed on notice that, as a result of having waived trial by jury, the trial court would be “sitting without a jury,” that the trial court would “hear the evidence,” and would conclude whether appellant “exercised his right of self-defense,” and whether appellant was “not guilty of any crime.” The accused, thereafter, posed no objections to trial without jury, and posed no questions which would raise an issue that he did not understand fully the effect of his personal waiver. Compare Jackson v. State, 170 Ga. App. 172 (2) (316 SE2d 816).

Considering the record in its entirety, we find it does adequately reflect appellant was cognizant that he had waived his right to trial by jury, and that such waiver was knowingly made by him and with his personal and intelligent participation.

Additionally, it reasonably may be inferred from the joint participation in the waiver by both appellant and his counsel, on the record, that this was a matter which they had discussed aforehand. Appellant does not assert on appeal that trial counsel inadequately advised him regarding his right to trial by jury. In regard to this strategic matter, counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” See generally Strickland v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674).

Appellant’s enumeration of error is without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Kenneth D. Kondritzer, for appellant.

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


author: Beasley, Judge.

text:
    A90A0834.
    FAMIGLIETTI et al. v. BREVARD MEDICAL INVESTORS, LTD. et al.
    (397 SE2d 720)
   Beasley, Judge.

Brevard Medical Investors, Ltd., was formed by Stiles A. Kellett, Jr., and Samuel B. Kellett to build and own a nursing home in Brevard County, Florida (referred to collectively as “Brevard”). It was to be operated by Convalescent Services, Inc., a Georgia corporation owned by the Kelletts. Richard Famiglietti and Federated Health Corporation sued Brevard for breach of two contracts to purchase real estate and for fraudulent misrepresentations made in connection with an amendment to one of the contracts. The jury rendered a verdict for $1,027,170: $500,000 for fraud, $295,000 for breach of contract, $54,202 prejudgment interest, $77,968 attorney fees, and $100,000 punitive damages. Famiglietti and Federated appeal the grant of Brevard’s motion for a judgment notwithstanding the verdict and a conditional new trial.

1. “ ‘[T]he primary question for determination is whether the evidence introduced, with all reasonable deductions . . . demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. (Cits.) (T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.’ Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (329 SE2d 918) (1985). The question is whether the evidence demands a verdict for the movant; if there is no evidence to support the verdict, the motion must be granted. City of Atlanta v. West, 160 Ga. App. 609, 611 (2) (287 SE2d 558) (1981).

The evidence showed that Brevard filed an application for a certificate of need (“CON”) to obtain permission from the State of Florida to build a nursing home in July 1984. It was updated on May 2, 1986. Appellants and other parties filed competing applications. In May 1986, Famiglietti met with a representative of Convalescent Services, and it was subsequently agreed that Brevard would purchase a certain parcel of land from appellants provided it was properly zoned and could be developed as a nursing home without incurring any unusual costs. It was further agreed that appellants would withdraw their CON application. This agreement was expressed in two documents: a contract to purchase a certain parcel of real estate for $550,000, less certain credits for development and utilities, and provided certain warranties; and an agreement that appellants would withdraw their CON application. On July 16, 1986, the appellants withdrew their CON application.

The day after a CON was granted to Brevard, two of Brevard’s representatives traveled to Florida and met with a real estate broker who showed them alternative sites for the construction of a nursing home. Appellants were never notified that Brevard was considering another site, and the real estate broker was not informed of the existing contract on appellant’s property. Brevard purchased one of the sites viewed on this trip after it terminated its contracts with appellants and constructed a nursing home on it.

On September 10, 1986, four days before the scheduled closing date for the land purchase, and one week after the issuance of the CON and the trip to inspect other sites, Brevard requested, and appellants executed, an amendment to the purchase agreement granting an extension of time on the original contract. This extension moved the closing date past the date the grant of the CON could be appealed. At the time the extension was granted, Brevard knew of a potential problem with the placement of a retention pond on the property and the condition of the soil, but it did not inform appellants of these problems. There were conflicting reports as to whether building costs would be increased because of the soil conditions.

When appellants inquired as to the reason for the requested extension, Brevard’s representative stated that they were having some problems concerning the dedication of a private road and the installation of a sewer lift station and needed “a little bit more information on that” because it was necessary for the financing. A telephone call from Brevard followed by a termination letter received by appellants approximately 13 days before the extension was due to expire, was appellants’ first indication that there were any problems with the project. The two reasons previously mentioned for the grant of the extension had been resolved. When appellants asked for an opportunity to work out the newly alleged problems, Brevard’s spokesman stated that they needed to cancel this contract and go on to other things.

The jury was charged on the five elements of fraud as found in OCGA § 51-6-2 (a), as well as fraud as to future statements made with no present intention to perform, the subtle nature of fraud and all its ramifications, and its authorization to find fraud when certain factors weigh in favor of it.

The evidence authorized the jury to find that appellees’ agent made misrepresentations as to the reason an extension was sought for closing the purchase agreement, and the jury could have found that the search for a new site immediately after signing the contracts was indicative of appellees’ intent not to perform under the contract once the CON was awarded. See Insilco Corp. v. FNB, 156 Ga. App. 382 (274 SE2d 767) (1980). Under OCGA § 51-6-2 (a), a “willful misrepresentation of a material fact, made to induce another to act, upon which such a person acts to his injury, will give him a right of action.” See Preiser v. Jim Letts Oldsmobile, 160 Ga. App. 658, 660 (288 SE2d 219) (1981). The materiality of the misrepresentations is a jury question. King v. Towns, 102 Ga. App. 895 (118 SE2d 121) (1960). Whether a party exercised due diligence to ascertain the truth is also for jury resolution. King v. Towns, supra. The jury heard the evidence over the course of a week, was charged all the applicable legal principles, and apparently fully understood the subtle nature of fraud.

We cannot say that there was no evidence to support a finding of fraud. The trial court erred in granting the motion for a j.n.o.v. as to this issue.

2. The jury verdict should stand with regard to the awards for breach of the purchase agreement, unless the grant of new trial properly supervenes. The sole basis urged for discarding the verdict is not whether a breach was proved but rather that there was no evidence of damages, in one particular aspect thereof, pursuant to the legal measure. What is perceived is a lack of any competent evidence of the fair market value of the land on the date of the breach. But the evidentiary question does not control.

OCGA § 9-11-50 (b) allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. It provides, however, a post-verdict opportunity for a “determination of the legal questions raised by the motion [for a directed verdict].” If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment “in accordance with [the] motion for directed verdict.”

It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion. This Court has repeatedly recognized this. In Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 469 (1) (287 SE2d 257) (1981), the Court pointed out that j.n.o.v. “may be entertained only if the movant... is seeking to have judgment entered ‘in accordance with’ [the] motion [for directed verdict].” It was held that the trial court’s ruling on the motion on a new ground “was without authority.” Id. at 470. See also AAA Delivery Serv. v. Morse Electro Prods. Corp., 140 Ga. App. 502 (1) (231 SE2d 362) (1976). We recently reaffirmed this long-standing procedural rule in Brantley Co. v. Simmons, 196 Ga. App. 233 (395 SE2d 656) (1990).

Grounds asserted in a motion for j.n.o.v. but not in the motion for directed verdict are not considered on appeal either. Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560 (1) (359 SE2d 383) (1987); Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987); Fidelity &c. Ins. Co. v. Massey, 162 Ga. App. 249, 250 (291 SE2d 97) (1982). The point is that a motion for j.n.o.v. is simply a reasserted motion for directed verdict, with a second opportunity for the trial court to rule on it before time and expenses are incurred and appellate judicial resources are expended. It is an instrument designed to “reduce court costs and delay,” to use an ever sought-after objective. As the Supreme Court described it in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 421 (1) (249 SE2d 224) (1978): “CPA § 50 (b) . . . allows the trial court to defer ruling on a motion for directed verdict and submit the case to the jury subject to a later determination of the legal questions raised by the motion.” Additionally, its availability in the wings allows the jury trial to proceed to conclusion without having to start all over again if the trial judge is incorrect in granting the motion for directed verdict in the first place. Of course, if the verdict is for the movant, the motion becomes moot. See Mayor &c. of Savannah, supra at 422.

Here, the ground was raised by way of a motion to strike the testimony of Famiglietti and Dr. Scott, after the court had rejected each of the grounds of the motion for directed verdict. A motion to strike is not a precursor to a j.n.o.v. motion, and no authority has been unearthed by appellees or the Court to support the proposition that a trial court would be authorized to consider the grounds of a motion to strike evidence when ruling on a j.n.o.v. motion. Motions to strike evidence and motions for directed verdict are quite different. Moreover, the court may not excise some of the evidence admitted and then rule on the j.n.o.v. motion viewed with that evidence absent. Bullard v. Carreras, 183 Ga. App. 539, 542 (3) (a) (359 SE2d 429) (1987).

Defendants did not move for directed verdict on the breach of contract claim in any regard except as to attorney fees, much less on the specific ground of lack of foundation for Famiglietti’s opinion evidence of value. As a matter of fact, in asserting their grounds for partial directed verdict, defendants stated their position after plaintiff’s case in chief, with respect to what was to go to the jury: “This is a breach of contract case involving two contracts, and the issues that the jury needs to determine is (sic) whether or not the defendants breached the contract or cancelled it in accordance with its terms; and if they breached, what are the damages.” Evidently defendants acknowledged that there was evidence of damages for breach of contract even without Famiglietti’s opinion of the value of the property at the time of the breach; otherwise they would have made this a ground for directed verdict on the contract claim. At the close of their evidence, defendants renewed the motion for directed verdict on the same grounds as their original motion and reiterated: “We got (sic) a breach of contract case, and there’s no fraud ... I don’t think [there is] anybody in here who thinks this is anything other than a breach of contract action.”

Defendants never urged, until the motion for j.n.o.v., that there was no evidence of value to support the damage element of the contract claim so as to remove that claim from jury consideration; they simply asked that some of that evidence be stricken. Thus the trial court was not authorized to widen its reconsideration of the motion for directed verdict at j.n.o.v. time. Had defendants wished to preserve the issue for j.n.o.v., they could easily have incorporated it into the motion for directed verdict which they argued at some length.

To stretch the limits of j.n.o.v. in this case would be particularly unjust, in that plaintiffs were precluded from giving additional evidence of value in rebuttal. They sought to enter explanatory testimony from Famiglietti and also from the broker who had sold the property to him and had made a per-acre appraisal on April 16, based on comparables as well as other factors. That appraisal was just six months before the breach. If the motion for directed verdict had included the subject ground, plaintiffs could have asked to reopen their case and submitted this evidence at that time. See Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725, 726 (1) (307 SE2d 671) (1983).

3. As the jury was charged on the various aspects of fraud and the evidence supports the jury verdict, and the jury was charged on punitive damages, that portion of the jury verdict awarding punitive damages was improperly struck by the court in granting a j.n.o.v.

4. The jury was charged^that the contracts contained provisions for attorney fees and that they, could also be recovered for fraud. Appellees did not appeal from the charge as given. Attorney fees may be awarded for fraud and deceit under OCGA § 13-6-11 (formerly Code Ann. § 20-1404). Roberts Pest Control v. McDonald, 132 Ga. App. 257, 260 (208 SE2d 13) (1974). This portion of the jury verdict was also improperly reversed by the grant of a j.n.o.v.

5. As to the grant of a new trial for defendants, final appellate disposition is premature. OCGA § 9-11-50 (c) requires the j.n.o.v. - granting trial court to “specify the grounds for granting or denying the motion for new trial.” OCGA § 5-5-51 requires the trial court which grants a new trial in its discretion to “set forth by written order the reason or reasons for the exercise of [its] discretion.”

Decided September 19, 1990

Rehearing denied October 5, 1990

Alston & Bird, Oscar N. Persons, Jennifer A. Brown, for appellants.

Schreeder, Wheeler & Flint, Bavid Flint, Susan H. Sarch, for appellees.

Neither the order conditionally denying a new trial to plaintiffs in the event the j.n.o.v. is affirmed, nor the order conditionally granting a new trial to defendants in the event the j.n.o.v. is reversed, reveals the grounds or reasons for the rulings. Thus we are in no position to examine whether they are reversible. “While ordinarily the first grant of a new trial will not be disturbed by this court, where . . . the first grant of a new trial is based on a special ground involving a question of law, the trial court’s order is reviewable on appeal.” Cobb County Kennestone Hosp. Auth. v. Crumbley, 179 Ga. App. 896, 897 (348 SE2d 49) (1986).

These statutory mandates seek to avert repeated trips to the same court, but when they are not complied with there is no waiver of the question, as there is when the trial court’s order is deficient under OCGA § 9-11-52 (c). Consequently, remand with direction is in order. Cf. Sigmon v. Womack, 158 Ga. App. 47, 51 (2) (279 SE2d 254) (1981). Compare also Smith v. Telecable of Columbus, 238 Ga. 559 (234 SE2d 24) (1977). Of course, it must be kept in mind that both decisions precede the enactment of OCGA § 5-5-51 in 1985.

Judgment reversed and case remanded with direction.

Been, P. J., and Pope, J., concur.