text:
    A93A1907.
    THOMAS v. PASSENGER.
    (440 SE2d 228)
   Andrews, Judge.

This is the second appearance of this case which arose from an automobile accident involving plaintiff Thomas. In the first, Thomas v. Schouten, 210 Ga. App. 244 (435 SE2d 746) (1993), plaintiff Marie Thomas appealed the grant of summary judgment to defendant Schouten. We affirmed the trial court’s decision. Here, Thomas appeals the state court’s grant of defendant Passenger’s motion to dismiss.

Thomas filed the complaint in this action on October 28, 1991, for injuries she claimed to have received in an automobile accident on December 21, 1989. On October 29, 1991, a return of service was entered indicating that defendant Passenger was not to be found in the jurisdiction of the court and that he resided in Woodland, Tennessee. On February 10, 1992, the court ordered that since Passenger could not be found within the state, service be made upon him by publication. Passenger was personally served with the complaint on September 30, 1992 and filed an answer raising appropriate service defenses.

On January 5, 1993, Passenger filed a motion to dismiss based on Thomas’ failure to perfect service within the applicable statute of limitation. In conjunction therewith, Passenger filed his own affidavit which stated that he had moved several times since the accident, but that he had lived in Woodbury, Tennessee since October 1991. He stated that he had not attempted to hide or avoid service and that the correct telephone number for his parents’ residence was listed on the sheriff’s October 1991 return of service. Also filed with the motion to dismiss was the affidavit of Passenger’s mother, which stated that the listed telephone number was correct and had been her number for the preceding three years.

On March 29, 1993, the court granted the motion to dismiss. In so doing, citing Smith v. Commercial Union Assurance Co., 246 Ga. 50 (268 SE2d 632) (1980), the court found that the order for service by publication was not sufficient to confer in personam jurisdiction upon Passenger in the suit for personal injuries. The court found that such order did not represent a finding by the court that Thomas had exercised due diligence in an attempt to locate Passenger to perfect personal service. Compare Starr v. Wimbush, 201 Ga. App. 280 (1) (410 SE2d 776) (1991). Further, the court found that the plaintiff’s obligation to continue to exercise due diligence to serve Passenger did not expire with the order for service by publication and that Thomas had not acted in a reasonable and diligent manner to effect personal service. Accordingly, the court held that the service in September 1992 did not relate back to the original filing of the complaint, since Thomas was guilty of laches.

Thomas enumerates three errors. First, she claims that the court erred in finding that its order granting service by publication did not represent a finding of due diligence where the record showed that personal service had been attempted before she sought service by publication. Secondly, she claims that the trial court erred in finding that her complaint is barred where the record showed that Passenger “became a transient subsequent to the filing of the complaint.” Finally, Thomas claims that the trial court erred in finding that service did not relate back to the original filing of the complaint.

Although Thomas’ first argument — that the order for service by publication represents a finding that she had acted with due diligence in attempting personal service up to that point in time — may be correct, it is not dispositive of the issue here. Thomas cites OCGA § 9-11-4 (e) (1) (A) and Abba Gana v. Abba Gana, 251 Ga. 340 (304 SE2d 909) (1983), which support the proposition that in order for a court to authorize service by publication, it must find the plaintiff acted with due diligence in pursuing “every reasonably available channel of information.” In Douglas v. Woon, 205 Ga. App. 355 (1) (422 SE2d 61) (1992), the court stated that “by granting the order permitting service by publication the trial court, in effect made a finding of due diligence.” Id. at 356. See also Smith v. Johnson, 209 Ga. App. 305 (433 SE2d 404) (1993).

Decided December 20, 1993

Reconsideration denied January 12, 1994

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Nonetheless, resolution of this question is not controlling in this case. Assuming arguendo, that the court erred in finding that service by publication did not constitute a finding of due diligence until that time, personal service on Passenger was not effected until nearly seven months later in September 1992. Thomas has made no showing as to any diligence exercised within these intervening months. Therefore, the issue Thomas raises regarding whether the order granting service by publication establishes her due diligence up to that point does not resolve our present inquiry. Because there was no showing of any diligence for the months preceding personal service, any error regarding the due diligence for service by publication was harmless. Accordingly, this enumeration is without merit. Compare Smith, supra (trial court made no finding regarding laches after the service by publication and case remanded for consideration of diligence factors).

Citing Siler v. Johns, 173 Ga. App. 692 (327 SE2d 810) (1985), Thomas’ second and third arguments urge error with the court’s finding that she did not exercise due diligence and the corresponding determination that the complaint is barred by the statute of limitation. Thomas argues that the fact that Passenger moved frequently made him a “transient” and her failure to serve him was justified. Nonetheless, unlike in Siler, Thomas does not detail any effort she undertook to serve Passenger in the seven-month gap between service by publication and the date of service.

“The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990). Thomas did not carry her burden of showing due diligence, no abuse of discretion appears and the trial court did not err in dismissing the complaint.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Groover & Childs, Frank H. Childs, Jr., for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A2382.
    PLEATS, INC. v. OMSA, INC.
    (440 SE2d 214)
   Birdsong, Presiding Judge.

Pleats, Inc. appeals the order of the state court granting appellee OMSA, Inc.’s motion to dismiss or in the alternative motion for summary judgment, and from the order granting appellee’s motion to open default and denying appellant’s motion for default judgment. Pleats, a Georgia corporation with its principal place of business in Georgia, brought suit for breach of contract in state court against OMSA, Inc., on February 12, 1992; OMSA conducts business in Texas and maintains no Georgia office or sales staff; on March 12, 1992, OMSA was served in El Paso, Texas, with process, including a duplicate original complaint. Date of service of summons was not entered upon the process. Affidavit of service was sworn to on March 23, 1992. On Wednesday, April 15, 1992, OMSA answered and sought removal of the case to the U. S. District Court; costs were not tendered with the answer. The answer contained certain general denials and averred five specific claims of defense, including lack of jurisdiction, improper venue, insufficiency of service of process, and absence of privity of contract between the parties. On April 30, 1992, Pleats moved to remand the action to state court because the removal petition was filed more than 30 days after service. OMSA agreed to remand and a consent order was filed on May 18, 1992, in federal court remanding the suit. In Fulton County State Court, appellant filed a motion for default judgment; the trial court denied appellant’s motion and allowed appellee to open default. Subsequently, appellee moved to compel discovery and to extend the discovery period. Appellant responded by filing a motion to vacate the order opening default and to enter judgment against OMSA. Appellee’s motions were granted and appellant’s motions were denied. Held:

1. The trial court did not err in opening default and denying the motion for default judgment. The vice-president of OMSA filed an affidavit stating he had mistakenly believed process had been served upon him on March 17, 1992, he had been given no sheriff’s entry of service or other form bearing actual date of service, and he had reported to his attorney that service of process was on March 17. It was also stated therein that OMSA has valid defenses to appellant’s claims. Those defenses were listed. OMSA’s attorney filed an affidavit confirming the vice-president had reported that process was served on March 17, 1992. In this affidavit, it was stated that an associate had been sent to state court to check the docket and confirm date of service, but that the sheriff’s entry of service was not on file with the court clerk and, in fact, was not so filed until June 4, 1992, more than 45 days from the original date of service. Acting on the information supplied by his client, OMSA’s attorney filed a notice of remand, a petition for remand, and an answer, believing each to have been filed within 30 days of service of process. OMSA’s attorney also claimed that had he known the case was then in default, a check for costs would have been tendered with the answer; it was only upon notification by Pleats’ attorney through a motion for remand to state court that OMSA’s attorney discovered service had been perfected on March 12, 1992, and that he believes the defenses asserted in the vice-president’s affidavit are viable, that OMSA is ready to plead instanter, and that OMSA is ready to proceed to trial. Under oath, Pleats has claimed no specific prejudice by virtue of default opening.

OCGA § 9-11-55 (b) allows a prejudgment default to be opened upon payment of costs, in the trial court’s discretion, on one of three grounds if four conditions are met. See generally Muscogee Realty &c. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199). Regarding appellee’s claim of mistake of fact as to service date, generally, in cases concerning default judgments this court will not substitute its judgment for that of the trial judge who had the opportunity to determine witness credibility and/or to weigh the evidence before it. See Coleman v. Superior Ins. Co., 204 Ga. App. 78, 79 (418 SE2d 390). Moreover, excusable neglect and proper cause cannot be determined by fixed rules, but rather must be decided based on the operative circumstances in each particular case. See Miller v. Tranakos, 198 Ga. App. 668, 670 (1) (402 SE2d 772); Jim Walter Homes v. Roberts, 196 Ga. App. 618, 621 (4) (396 SE2d 787). This determination will not be reversed by an appellate court absent a manifest abuse of discretion. Sagnibene v. Budget Rent-A-Car Systems, 209 Ga. App. 44, 46 (432 SE2d 639). “ ‘The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment . . . should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense.’ ” (Citation omitted.) Id. Appellant has failed to establish that appellee did not act with reasonable promptness after receiving default notice; appellant likewise has failed to show that it sustained unique harm or suffered specific prejudice from the opening of default. While we will carefully scrutinize claims of mistake as to the date of service of process, examining the circumstances of this case, we find no manifest abuse of discretion in opening default or in denying appellant’s request for default judgment. Compare Sagnibene, supra, with West v. Smith, 196 Ga. App. 69 (395 SE2d 302) where no issue was raised that responsive pleadings were filed a day late until it was too late for the default to be opened as a matter of right.

2. Appellant, citing Stout v. Signate Holding, 184 Ga. App. 154 (361 SE2d 36), asserts appellee waived the defense of personal jurisdiction by being in default. Appellee counters that appellant did not timely raise this issue before the trial court; the record supports appellee’s contention. Appellant has failed to preserve this issue on appeal by failing to raise it timely before the trial court. Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581); Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637 (1) (385 SE2d 746).

3. After opening default, the trial court granted the motion to dismiss “on the grounds that [it] lacks jurisdiction over the person of [appellee] as contemplated by OCGA § 9-11-12 (b) (2) and that venue is improper as to [appellee] as contemplated by OCGA § 9-11-12 (b) (3) for the reason that the minimum contact requirements of OCGA § 9-10-90 et seq. have not been met.” The trial court concluded that appellee’s alternative motion for summary judgment had been rendered moot.

(a) The facts in this case, as reported in the affidavits and depositions of record, are in dispute. “ ‘Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.] A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court. To demonstrate that the court lacks jurisdiction, defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. [Cits.] Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. [Cit.]

“ ‘The trial court considering a motion to dismiss for lack of jurisdiction has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b). [Cit.] If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. [Cit.] Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. [Cits.]’ ” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435). But compare Harvey v. Harvey, 147 Ga. App. 154 (1) (248 SE2d 214) involving a denial of a motion to quash service for lack of personal jurisdiction and employing a “some evidence” standard.

(b) “Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he . . . [transacts any business within this State. Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, the defendant must have purposefully directed his activities at residents of the forum, and the litigation must result from alleged injuries that arise out of or relate to those activities. The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum State, that is, whether the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Mere telephone or mail contact with an out-of-state defendant is insufficient to establish the purposeful activity with Georgia required by the Long Arm statute. Also, an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts. Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant has purposefully established minimum contacts within the forum.” (Citations and punctuation omitted.) Garrett Assoc. v. Mediplex Group, 209 Ga. App. 738, 739 (434 SE2d 568).

Pleats’ president went to Mexico to arrange for the manufacture and shipment of pants by a man named Romano whose factory previously had accomplished work for Pleats. However, at the time, Romano was manufacturing some clothing for a company named Promotora; rather than interrupt this venture, Cohen, the president of Promotora, offered to have the goods cut by a company called OMSA in Texas and thereafter assembled in Mexico. (Certain tariff charges apparently are avoided by this procedure.) Appellant claims Cohen held himself out as the president of OMSA, or represented that he was an agent of OMSA, and did not reveal his relationship to Promotora; OMSA and Cohen denied all these claims under oath. “ ‘The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law.’ ” (Citation omitted.) Stone v. First Nat. Bank of Atlanta, 159 Ga. App. 812, 814 (4) (285 SE2d 207).

In Mexico certain contract negotiations took place. Pleats’ president concedes in his deposition that, at that meeting, Mr. Cohen supplied the price at which OMSA would manufacture the pants; he offered that OMSA would accept piece goods from Pleats (Pleats’ piece goods were physically located in Texas at this time), manufacture the pants according to Pleats’ specifications sent from Georgia, and return the finished goods to Georgia at a location selected by Pleats. Although Pleats claims further negotiations and acceptance of the contract occurred during telephone calls made by its president in Georgia to OMSA or its agents in Texas, it concedes the essential terms of the written contract were that Pleats would supply the piece goods (fabric) and pocketing, OMSA would cut and sew the garment to Pleats’ specifications for $5.90 per pair, and that OMSA agreed the finished goods would be shipped back to Georgia to Pleats for delivery to its customers. The only reasonable inference which can be drawn from the existing record is that the essential elements of the contract substantially were negotiated in Mexico. This case is factually distinguishable from Davis Metals v. Allen, 230 Ga. 623 (198 SE2d 285) and Garrett Assoc. v. Mediplex Group, supra. Although not directly in point, we find the precedent of Mayacamas Corp. v. Gulfstream &c. Corp., 190 Ga. App. 892 (380 SE2d 303) more persuasive and here controlling. As in Mayacamas at 894, “[t]here was no subsequent course of dealing established between the parties as a result of the contract, nor did the future consequences of the contract come to fruition.” Further, the fact that officers of OMSA may have attended a bobbin show in Georgia “was fortuitous, and cannot be said to constitute transacting business in this state without a showing that [such] attendance was important to the performance of the contract.” Id. The trial court did not err as enumerated.

Decided December 3, 1993

Reconsideration dismissed January 12, 1994.

Herbert P. Schlanger, for appellant.

Crim & Bossier, Harry W. Bassler, Thomas S. Bechtel, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A93A1832.
    SHAW v. THE STATE.
    (440 SE2d 245)
   Cooper, Judge.

Robert Leon Shaw was tried before a jury and found guilty of three counts of burglary. A motion for new trial was denied, and he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdicts of guilt and the denial of his motion for new trial.

1. The general grounds are enumerated as to each conviction. Viewed in the light most favorable to the verdict, the evidence adduced below would authorize the following: In the mid-morning hours of October 10,1991, the home of Ernest Barton was burglarized. Jewelry and a VCR were taken while other portable valuables were left undisturbed. Appellant was identified as the man seen running from the back door of Mr. Barton’s home. He jumped into a small black car, Georgia tag number HKD 591, and drove off. On October 16, Officer Clark of the Bartow County Sheriff’s Department investigated two reported daytime burglaries at adjacent homes on Dean Road. Cathy Porter Jones identified appellant as the strange man she found in her home holding her VCR and a jewelry box in his hands. The door had been forced open. After grappling with Ms. Jones, appellant drove off in a black automobile, Georgia tag number HKD 591. Dot Hall testified that her home, next to Ms. Jones’ residence, also had been burglarized that morning. The door had been similarly forced and jewelry and a VCR were missing. The next day, police located a black vehicle with the tag number HKD 591. This vehicle was registered to a Ronnie Reynolds and had been reported stolen as of October 16, 1991. Inside of this vehicle were articles of jewelry identified by Ms. Jones as items stolen from her home in the burglary of October 16.

As to the burglaries of the Barton and Jones’ residences, where appellant was caught red-handed by eyewitnesses, the evidence adduced below was sufficient to authorize a rational trier of fact reasonably to find proof of appellant’s guilt beyond a reasonable doubt. Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993); Wooten v. State, 160 Ga. App. 747 (3) (288 SE2d 94) (1981). As to the intervening burglary of the Hall residence, the evidence is entirely circumstantial. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. In this case, no one saw appellant enter the Hall residence, there is no fingerprint evidence establishing appellant’s presence inside the residence, and none of the items stolen from the home were discovered in appellant’s possession. It is undisputed, however, that the Hall residence was subject to an unauthorized and forcible entry during which a VCR and some jewelry were stolen. The jury was authorized to find that appellant had the opportunity to burglarize the Hall residence, since they believed beyond a reasonable doubt that appellant burglarized the adjacent Jones’ residence that same morning. The modus operandi, whereby appellant kicked in the door and stole only VCR’s and jewelry during the rash of mid-morning burglaries, leaving items which had been neatly placed to one side of the VCR, is in the nature of a signature and thus is some evidence of the identity of the perpetrator of the Hall burglary. Felker v. State, 252 Ga. 351 (1a) (314 SE2d 621) (1984). The circumstantial evidence in this case is sufficient to authorize an inference of guilt which excludes any reasonable hypothesis that anyone other than appellant committed the Hall burglary. Id. at 360 (1a). The general grounds are without merit.

Decided January 12, 1994.

T. Neal Brunt, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assis tant District Attorney, for appellee.

2. As a special ground for new trial, appellant urged the ineffectiveness of trial counsel arising out of the following circumstances: As part of its case-in-chief, the State had the eyewitnesses recount for the jury their identification of appellant from a photographic line-up. The exhibits of the photographic array were edited by the State to delete any showing of police identification numbers as part of the mug shots. However, when defense counsel sought to cross-examine the eyewitnesses, he did so with a series of photographic arrays, including an exhibit which had not been so edited when tendered as a defense exhibit. Appellant contends that trial counsel unprofessionally placed his character in issue and enumerates as error the overruling of his motion for new trial on this ground. The State responds that this was induced error.

Although the State appears to concede that trial counsel’s use of the unedited photographic line-up is professional error, we agree with the trial court that, in this instance, the substance of the matter is more properly analyzed as trial tactics and strategy. A passing reference to the fact that the accused has been arrested does not place his character in issue. Miller v. State, 260 Ga. 191 (11) (391 SE2d 642) (1990). This defense exhibit, a picture of appellant with a police identification number, likewise is not evidence of a prior conviction and so did not place appellant’s character in evidence. Little v. State, 135 Ga. App. 772 (1) (219 SE2d 19) (1975). The use of this exhibit for such patently legitimate purposes of cross-examination is not any evidence that trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and federal constitutions. Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589) (1957). The trial court correctly denied appellant’s motion for new trial on the ground of ineffective assistance of trial counsel. See generally Kight v. State, 181 Ga. App. 874 (3) (354 SE2d 202) (1987).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A2174.
    BAXTER v. THE STATE.
    (440 SE2d 72)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of burglary. The evidence adduced at trial reveals that the victim left her dwelling house at about 1:00 p.m. on August 8, 1989, returned home at about 3:00 that afternoon and discovered that her house had been burglarized. The evidence also reveals that the burglar gained entry to the premises via shattering a kitchen window; that defendant’s fingerprints were found inside and outside the shattered window and that defendant had no authority to be on the victim’s premises.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant contends the State’s fingerprint evidence is insufficient to support his conviction as there might have been other explanations for the presence of his fingerprints outside the burglarized premises.

“ ‘To warrant a conviction based solely on fingerprint evidence the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed. The cases require the State to prove to the exclusion of every reasonable hypothesis, that the fingerprints could only have been impressed at the time the crime was committed. (Cit.) . . . (I)t is not necessary that such (circumstantial) evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. When a jury hears the evidence, it decides questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. (Cit.)

“ ‘Our review of the transcript [in the case sub judice] demonstrates that the State met its burden of proving, to the exclusion of every other reasonable hypothesis, that [defendant’s fingerprints,] which [were] on the broken glass of the window [and on the window frame] through which entry was gained to the burgled residence, could only have been impressed at the time the crime was committed. . . . (T)here was no evidence presenting any other reasonable explanation as to how [defendant’s fingerprints] came to be on the window. (Cits.)’ Brown v. State, 175 Ga. App. 778 (334 SE2d 365) (1985).” Hutchinson v. State, 179 Ga. App. 485 (1) (347 SE2d 315). Accordingly, we find the evidence sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Knight v. State, 185 Ga. App. 619, 621 (3) (365 SE2d 484).

Decided January 12, 1994.

Darrel L. Hopson, for appellant.

Robert E. Keller, District Attorney, for appellee.

2. Defendant contends in his second enumeration that he was denied effective assistance of trial counsel, arguing that he did not testify on his own behalf at trial because his trial attorney inaccurately advised him that he could not be convicted on circumstantial evidence. This contention is without merit as errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. Concepcion v. State, 205 Ga. App. 138 (421 SE2d 554).

3. In his third enumeration, defendant contends the trial court erred in denying defendant’s motion for new trial for the reasons asserted in his first and second enumerations of error. This contention is without merit for the reasons stated in Divisions 1 and 2 of this opinion.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A2204.
    BARNETT v. THE STATE.
    (440 SE2d 247)
   Beasley, Presiding Judge.

Barnett appeals from his conviction for carrying a concealed weapon, OCGA § 16-11-126 (a), carrying a pistol without a license, OCGA § 16-11-128 (a), carrying a pistol at a public gathering, OCGA § 16-11-127 (a), discharging a firearm near a public highway, OCGA § 16-11-103, and reckless conduct, OCGA § 16-5-60 (b). His motion for new trial was denied. The sole enumeration of error is the admission of certain testimony under the res gestae exception to the hearsay rule.

Two uniformed off-duty deputy sheriffs were working in the parking lot of a tavern at the 2:00 a.m. closing time. The first officer testified that he heard three gunshots but was not in a position to see a gun being fired. Both officers drew their revolvers and proceeded to a position at the top of a hill from which they could see appellant and observed him place a dark object in his waistband. They approached appellant and ordered him to get on the ground, but he instead began moving toward a parked car. An employee of the tavern came up behind appellant and pushed him against a parked car while the deputies closed in. Appellant reached back for his waistband and the officers ordered him not to pull the gun. The employee grabbed appellant’s arm. As they struggled a gun fell from appellant’s waistband onto the ground. Appellant was subdued and the gun, from which three bullets had been fired, was retrieved.

A deputy characterized the bystanders in the parking lot as having been in an excited state: “[T]here’s a lot of commotion going on in the parking lot. People are irate because . . . they’ve been shot at. . . [W]e had a potential riot situation on our hands.” He testified that before the officers even reached appellant, “you could hear the people hollering and screaming that they’d been shot at.” The second deputy testified that within 30 seconds after he heard the gunshots, a group of approximately a dozen people ran past the officers shouting in an excited fashion, “he’s got a gun,” while pointing to appellant. The testimony was ruled admissible over appellant’s hearsay objection, as part of the res gestae exception to the hearsay rule.

Such a determination will not be disturbed unless clearly erroneous. Robinson v. State, 197 Ga. App. 600 (399 SE2d 94) (1990).

Appellant’s claim of error is couched only in federal constitutional terms, and only on the basis that Ohio v. Roberts, 448 U. S. 56, 63 (100 SC 2531, 65 LE2d 597) (1980), mandates a showing by the prosecution that the hearsay declarants were unavailable to testify. In the absence of such a showing, he contends that admission of the hearsay evidence violated the Confrontation Clause of the Sixth Amendment. However, the Supreme Court more recently rejected such an expansive reading of the Confrontation Clause in United States v. Inadi, 475 U. S. 387 (106 SC 1121, 89 LE2d 390) (1986), and White v. Illinois, _U. S._ (112 SC 736, 116 LE2d 848) (1992).

In White, the Court rejected the concept that the Confrontation Clause requires either production of the witness or a showing of his nonavailability before testimony can be admitted under either the “spontaneous declaration” or “medical examination” exceptions to the hearsay rule. The Court reasoned: “[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. . . . [A] statement that qualifies for admission under a ‘firmly rooted’ hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability. [Cit.] . . . [Establishing a generally applicable unavailability rule would have few practical benefits while imposing pointless litigation costs. . . . We therefore see no basis in Roberts or Inadi for excluding from trial, under the aegis of the Confrontation Clause, evidence embraced within such exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment.” 116 LE2d at 859-860.

Decided January 12, 1994.

James W. Smith, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Richard L. Dickson, Assistant District Attorneys, for appellee.

Appellant does not contend that the declarations lack the spontaneity or other indicia of trustworthiness necessary to fall within the res gestae exception. See OCGA § 24-3-3. See generally Wallace v. State, 151 Ga. App. 171 (259 SE2d 172) (1979). His sole complaint, that the witnesses were not shown to be unavailable, is without merit. Accord Ewald v. State, 156 Ga. App. 68 (1) (274 SE2d 31) (1980).

Judgment affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A2336.
    McKNIGHT v. THE STATE.
    (440 SE2d 249)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated child molestation. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion for new trial in light of newly discovered evidence that the eight-year-old victim recanted his accusation that defendant committed the act of aggravated child molestation charged in the indictment.

“[A] new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. See Croy v. State, 195 Ga. App. 500, 501 (393 SE2d 756) (1990).” Gates v. State, 205 Ga. App. 333, 334 (3), 335 (422 SE2d 232). In the case sub judice, the effect of the newly discovered evidence offered by defendant at the motion for new trial hearing would merely go to impeach the victim’s testimony that defendant subjected him to the act of aggravated child molestation as alleged in the indictment. Consequently, the trial court did not err in denying defendant’s motion for new trial based on newly discovered evidence.

2. In his final two enumerations, defendant challenges the sufficiency of the evidence and contends the trial court erred in denying his motion for directed verdict of acquittal.

The victim testified that defendant committed the act of aggravated child molestation as alleged in the indictment. This evidence and testimony from the victim’s mother that the victim reported defendant’s sexual assault in the manner charged in the indictment is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); McGuire v. State, 209 Ga. App. 813, 814 (1a) (434 SE2d 802).

Decided January 12, 1994.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2456.
    PRUITT v. THE STATE.
    (440 SE2d 248)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of pointing a gun at another. The evidence adduced at trial reveals that defendant pointed a pistol at a United States Postal Service mail carrier (“the victim”) after the victim delivered a package to the defendant’s residence. This appeal followed entry of judgment on defendant’s conviction. Held:

1. In his first four enumerations, defendant asserts the general grounds and contends the trial court erred in denying his motion for a directed verdict of acquittal.

The victim testified that defendant pointed a pistol at him and stated, “ ‘you want some of this, you want some of this[,]’ ” moments after the men concluded a verbal altercation. An eyewitness corroborated the victim, testifying that defendant “pointed . . . what appeared to be a gun, towards the van [the victim was operating].” This evidence is sufficient to authorize the jury’s finding that the defendant is guilty, beyond a reasonable doubt, of pointing a gun at the victim in violation of OCGA § 16-11-102. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying defendant’s motion for a directed verdict of acquittal. Ford v. State, 163 Ga. App. 745 (296 SE2d 85).

2. In his fifth and sixth enumerations, defendant contends the trial court erred in failing to give his requests to charge on justification and habitation.

“ ‘ “A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” (Cit.)’ Grant v. State, 197 Ga. App. 878, 880 (2) (399 SE2d 743) (1990).” Jirles v. State, 204 Ga. App. 268 (2) (419 SE2d 117) (1992). In the case sub judice, defendant’s testimony reveals that the victim and defendant exchanged words at the front door of defendant’s apartment and that the victim left the scene of the verbal altercation when defendant retreated into his dwelling place. The defendant testified that he went inside his apartment after the victim’s verbal assault; that he closed the entrance door to his apartment; that he retrieved a weapon (a pepper canister) from his apartment and that he went outside and pointed the weapon at the victim. Defendant admitted that he was not in imminent fear of assault from the victim when he pointed the weapon at the victim and that the victim was not threatening to invade defendant’s abode when he pointed the weapon at the victim. Defendant explained that he pointed the weapon at the victim because he “wanted to demonstrate that [he] would defend [himself].” These circumstances do not authorize charges on the use of force in defense of self or habitation. See OCGA §§ 16-3-21 and 16-3-23. Consequently, the trial court did not err in refusing to give defendant’s requests to charge on the defenses of justification.

Decided January 12, 1994.

Joseph M. Todd, for appellant.

Keith C. Martin, Solicitor, Leigh A. Moore, Evelyn Proctor, Assistant Solicitors, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A93A1745.
    KERSEY v. UNITED STATES SHOE CORPORATION et al.
    (440 SE2d 250)
   Andrews, Judge.

Kersey brought this action alleging libel, slander and breach of an employment contract against her former employer, United States Shoe Corporation, Women’s Specialty Retailing Group (U. S. Shoe), and Shapiro and Robblin, both employees of U. S. Shoe. The trial court granted summary judgment in favor of the defendants and Kersey appeals.

In 1989, Kersey was promoted by U. S. Shoe from her job as a store manager of a women’s clothing store to the position of district manager in charge of various U. S. Shoe stores. In March 1990, Shapiro, who was Kersey’s regional supervisor at U. S. Shoe, received a report from a U. S. Shoe employee that while she was a store manager, Kersey had participated in cheating in a dress selling contest sponsored by U. S. Shoe in 1988, enabling Kersey’s store to win the contest over other U. S. Shoe stores, and also resulting in payment of cash bonuses by U. S. Shoe to Kersey and other store employees. Shapiro asked Robblin, a security manager at U. S. Shoe, to investígate the report of contest cheating. Robblin spoke with Cinelli, who was Kersey’s assistant manager at the store during the contest. Cinelli told Robblin that in violation of company rules Kersey’s store won the contest by falsely inflating contest dress sales by showing non-dress sales as dress sales, and that she had personal knowledge of Kersey’s participation in these efforts.

Thereafter, Robblin interviewed Kersey and informed her that a U. S. Shoe employee had told him that Kersey had knowledge of and participated in cheating at her store in the 1988 dress contest. According to Robblin, Kersey admitted that she cheated in the contest and agreed to pay back the bonus money she had been awarded. The record reflects that during the interview with Robblin, Kersey signed a promissory note agreeing to repay U. S. Shoe the sum of $500, and wrote and signed an explanation accompanying the note stating: “I have agreed to reimburse [U. S. Shoe] for $500.00 due to the fact that I disqualify myself from winning the dress contest in 1988 in which I received aproximately [sic] $500. This is due to my knowledge of breaking of the rules in which I had knowledge of on 1-3 occasions where non-dresses were rung as dresses.” After the meeting with Robblin, Kersey met again with Shapiro and Robblin. Shapiro stated that during this meeting Kersey admitted she cheated in the dress contest, and he told her that she was being terminated from her job for cheating on the contest.

In her deposition, Kersey acknowledged that she agreed to pay back the $500 contest winnings, and that she wrote and signed the explanation accompanying the repayment note, but she further testified she did not cheat in the contest, and had no knowledge of employee cheating. Kersey explained that she agreed to repay the $500 only after she learned for the first time from Robblin that someone in her store had admitted to cheating during the contest, and she felt this disqualified the entire store.

A few days after the meetings with Shapiro and Robblin, Shapiro sent a letter to Kersey confirming her termination and stating that “code 56 (Proven Dishonesty) has been used on the termination report.” A copy of this letter was sent intra-company to high-level management. Kersey subsequently sent a letter to the same management personnel stating that the cheating accusations were false, that she did not commit any dishonest act, and requesting that the termination code be changed from proven dishonesty. Thereafter, Kersey received a letter from the company employee relations manager informing her that: “Based on your length of service with the Company, we have agreed to change your termination code from ‘proven dishonesty’ to ‘resigned by mutual agreement.’ However, this does not lessen the seriousness of the matter, or the way the Company views it.” A copy of this letter was sent intra-company to Shapiro and high-level management. Shapiro later called a meeting of the store managers who had been under Kersey’s supervision and told them that Kersey had been terminated for cheating on the dress contest. Kersey also contends that the meeting in which Shapiro terminated her for contest cheating was overheard by an unidentified passerby. In the present action, Kersey claims the allegations of cheating were false, that the above communications were published by the defendants, and that they constituted a libelous and slanderous defamation of her reputation.

Damage to Kersey’s reputation is actionable only if it resulted from the defendants’ non-privileged publication of false words regarding her termination from employment. Brewer v. MARTA, 204 Ga. App. 241, 242 (419 SE2d 60) (1992). We need not determine whether the communications at issue were intra-corporate, and therefore not published within the meaning of the law, or whether the communications were privileged within the meaning of OCGA § 51-5-7. See Kurtz v. Williams, 188 Ga. App. 14 (371 SE2d 878) (1988); Green v. Sun Trust Banks, 197 Ga. App. 804, 809-810 (399 SE2d 712) (1990). “The truth of the charge made may always be proved in justification of an alleged libel or slander.” OCGA § 51-5-6. Although truthfulness is normally a question of fact for the jury (Thrasher v. Cox Enterprises, 209 Ga. App. 716 (434 SE2d 497) (1993)), where the party claiming to have been defamed has conclusively acknowledged the truthfulness of the communication at issue, it may be resolved as a matter of law. Carey v. Glen Restaurants, 166 Ga. App. 638 (305 SE2d 171) (1983). “A plaintiff cannot recover for [alleged defamation] where he admits the truth of the [communications] attributed to the defendant.” Medlin v. Carpenter, 174 Ga. App. 50, 54 (329 SE2d 159) (1985) .

Kersey testified that she did not cheat in the dress contest, and had no knowledge of cheating. However, she also gave sworn testimony acknowledging that she repaid the $500 in bonus money she received when her store won the contest because, “I had knowledge of on 1-3 occasions where non-dresses were rung as dresses.” She later attempted to explain this contradiction by stating that she first learned from Robblin that cheating had occurred in her store, and felt this disqualified her winnings. “Although all evidence on summary judgment is normally construed in favor of the non-moving party, testimony by a non-moving party in his own behalf which is contradictory, vague or equivocal will be construed against such party, unless a reasonable explanation is offered to explain the contradiction. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986) . Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law for the trial court. Id. at 30; Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475

Decided January 13, 1994.

Moore & Moore, Theron M. Moore, Bradley W. Bledsoe, for appellant.

Smith, Gambrell & Russell, David M. Brown, Lisa L. Ballentine, Andrea Doneff, for appellees.

(359 SE2d 231) (1987).” Worley v. State Farm Mut. Auto. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244) (1993). Although the trial court’s order granting summary judgment to the defendants does not indicate the basis upon which it was granted, an order right for any reason will be affirmed. Spiezio v. American Gen. Finance, 204 Ga. App. 350, 352 (419 SE2d 149) (1992). On the present record, the trial judge was authorized to conclude that Kersey gave contradictory testimony as to whether she had knowledge of and was involved in cheating which occurred in the store she managed, and that she failed to give a reasonable explanation for the contradiction. Accordingly, the trial court was further authorized to eliminate the testimony favorable to Kersey on this issue and conclude as a matter of law that she had acknowledged her complicity in the dress contest cheating which was the basis for her termination and the communications at issue. Prophecy, supra at 28.

Kersey’s additional claim for breach of an employment contract was not supported in her brief by citation of authority or argument and is deemed abandoned. Court of Appeals Rule 15 (c) (2). The trial court correctly granted summary judgment in favor of the defendants.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A1806.
    BROWN v. THE STATE.
    (440 SE2d 253)
   Beasley, Presiding Judge.

Brown entered a negotiated plea of guilty to possession of cocaine, OCGA § 16-13-30 (a), expressly conditioned upon the right to appeal the denial of his motion to suppress the contraband. See generally Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992).

Acting on a tip from a concerned citizen that a black male wearing a red hat, green shirt and blue pants was selling cocaine on Hughes Street, two uniformed police officers proceeded together to that location. The area was known to the officers for its heavy drug activity. Based on their observation of two men near the intersection of Hughes and Broad Streets, it was believed they “had disrupted a [drug] deal.” One of the men matched the description given of the cocaine seller. The officers observed him attempt to do something with his right hand, concealing it behind him. As the suspects saw the officers, they began to disperse but remained there when told by an officer, “just a minute; we want to talk to you.”

Decided January 13, 1994.

Ken D. Kondritzer, for appellant.

Michael H. Crawford, District Attorney, for appellee.

One officer approached the man matching the citizen’s description and asked to see what was in his hand. The officer then observed “the dope in his hand ... in plain view.” He was holding two tiny rocks which he handed to the officer, who immediately arrested him and placed him in the patrol car. The officer then approached appellant, the other man who had been involved in the suspected drug transaction with the arrestee. He had remained at the rear of the patrol car when asked by the officer not to leave. The officer informed him they were investigating drug dealing on the part of his companion. They asked if he would empty his pockets on the trunk of the patrol car. He agreed and was arrested for possession when he removed a quantity of crack cocaine from his pocket. When asked his reason for suspecting appellant, the officer testified: “[A]s they came into our view and from our information, we thought we had disrupted an actual transaction of the drug deal and that the one with the red hat and green shirt had actually sold to [appellant], who was trying to leave.”

Based on the citizen’s tip, the known prevalence of drug activity in the area, and the observations which led to the conclusion that the officers had interrupted a drug sale in progress, the officers were authorized under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to detain and question both participants in the suspected illegal transaction. Appellant was more than merely present on the scene. He was an active participant in what appeared to the officers to be a cocaine sale.

Appellant voluntarily relinquished the contents of his pocket. The evidence did not show duress. It is not essential to the validity of the consent that appellant be told he has a right to refuse. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975).

In denying the motion to suppress the trial court considered the location, the officers’ observations and the brief period of time in which the events transpired. Considering the totality of the circumstances, the motion to suppress the contraband was properly denied.

Judgment affirmed.

Cooper and Smith; JJ., concur.


author: Pope, Chief Judge.

text:
    A93A1840.
    GEORGIA INSURERS INSOLVENCY POOL v. SOUTHEAST ATLANTIC CARGO OPERATORS, INC.
    (440 SE2d 254)
   Pope, Chief Judge.

Defendant Georgia Insurers Insolvency Pool (“GIIP”) appeals from the trial court’s grant of summary judgment to plaintiff Southeast Atlantic Cargo Operators, Inc. (“SEACO”) and denial of summary judgment to GIIP.

One of SEACO’s employees was seriously injured while working in a warehouse operated by the Georgia Ports Authority (“GPA”). The employee sued GPA, and GPA in turn brought a third-party indemnity action against SEACO. SEACO’s insurer was declared insolvent in May 1986, while the third-party claim was pending, so GIIP took over SEACO’s defense in accordance with the Georgia Insurers Insolvency Pool Act (OCGA § 33-36-1 et seq.). GPA settled with the employee for more than $1.3 million and then pursued its indemnity action against SEACO. After defending SEACO for 18 months, GIIP informed SEACO in December 1987 that it would not pay any portion of any judgment for GPA because GPA had a net worth of more than $3 million. See OCGA § 33-36-3 (2) (F). GIIP offered to continue providing a defense, but SEACO declined this offer and hired its own counsel. A jury determined that SEACO was responsible for 40 percent of the employee’s damages, or $625,332.96, and this verdict was affirmed on appeal. See Ga. Ports Auth. v. SEACO, 202 Ga. App. 318 (414 SE2d 232) (1991). SEACO paid the judgment and then filed a claim with GIIP for reimbursement in the amount of $100,000. See OCGA § 33-36-3 (2) (D, E). When GIIP denied any liability based on OCGA § 33-36-3 (2) (F), SEACO brought this action.

1. OCGA § 33-36-3 (2) (F) provides: “A covered claim shall not include any obligation to insurers, insurance pools, underwriting associations, or any person which has a net worth greater than $3 million at the time of the insured event.” (Emphasis supplied.) It is undisputed that GPA had assets in excess of $3 million at the time of the worker’s accident, and SEACO did not. Thus, GIIP argues that it is the assets of GPA, the third-party claimant, which are relevant, and that GIIP is not liable because of GPA’s wealth. We disagree under the specific circumstances of this case. It is true that the Act contemplates third-party claims, see, e.g., OCGA § 33-36-3 (2) (E), and that in some cases the assets of the third party will be determinative for purposes of OCGA § 33-36-3 (2) (F). In this case, however, the third-party claimant has already recovered, and it is SEACO, the insured, which has actually filed the claim against GIIP.

Anytime a business entity goes under, there will inevitably be losses that someone has to bear. GIIP was established by the Legislature to ensure that, at least to the extent of $100,000, the insureds of insolvent insurers would not be the ones to bear the loss. See United Budget Co. v. GIIP, 253 Ga. 435, 437 (321 SE2d 333) (1984). Instead, GIIP would step in to defend the insured and pay claims up to $100,000. OCGA § 33-36-3 (2) (D, E). Because GIIP resources are limited, however, the Legislature determined that parties with assets of over $3 million should not be able to make claims against the fund, because they are in a position to better bear the inevitable loss themselves. See GIIP v. Elbert County, 258 Ga. 317 (2) (368 SE2d 500) (1988). If GUP’s position is accepted and recovery is denied in this case, SEACO, the insured, will have to bear the loss. Thus, we agree with the trial court that the claim in question is an obligation owed to SEACO rather than GPA, and it is therefore SEACO’s net worth that is relevant for purposes of OCGA § 33-36-3 (2) (F) under these circumstances.

2. GIIP further contends that SEACO “waived” its right to any recovery from GIIP because it could and should have asserted OCGA § 33-36-3 (2) (F) in its own defense against GPA, thereby reducing GPA’s recovery against it by $100,000. Cf. Peeples Indus. v. Parker Hannifin Corp., 189 Ga. App. 857, 858 (377 SE2d 691) (1989) (describing such a defense without approving or disapproving it). The existence of such a defense on the part of the insured where the third party could not claim against GIIP directly would make sense, as it would further the Act’s purpose of protecting insureds of insolvent insurers while simultaneously serving the purpose of OCGA § 33-36-3 (2) (F) by letting $100,000 of the loss fall on a party which the Legislature has determined can bear it, thus preserving the limited resources of GIIP for those who the Legislature has determined most need them. Even if we assume the existence of such a defense, however, we cannot agree that SEACO’s failure to rely on it waived its right to recover from GIIP in this case, for it is undisputed that GIIP provided SEACO’s defense to the third-party claim for a year and a half (during which time it filed an answer, a motion to dismiss and a pre-trial order) and did not itself assert this defense.

Judgment affirmed.

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

Decided January 13, 1994.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, Stuart Theodore, for appellant.

Adams & Ellis, George L. Lewis, for appellee.

       Although Roy Link, GUP’s representative, testified that he “relayed” to SEACO’s counsel GIIP’s position that SEACO should be entitled to a $100,000 credit against any liability to GPA on its part, he did not state when or how. Link never actually spoke with Edwin Robb, SEACO’s counsel, during the period Robb represented SEACO on this claim. Moreover, Edward Brennan, the counsel who previously represented SEACO on behalf of GIIP, stated that, according to his file on the matter, a defense for SEACO based on OCGA § 33-36-3 (2) (F) was not brought up by Link until 1990, after the second and final pre-trial order was filed.


text:
    A93A1879.
    ALLSTATE INSURANCE COMPANY v. WOOD.
    (440 SE2d 78)
   Pope, Chief Judge.

This case involves the application of the “second permittee doctrine.” We hold the trial court correctly applied that doctrine to the facts of this case and Allstate Insurance Company is obligated to provide Pamela Wood with liability coverage and a defense to the claims asserted against her in the underlying action by plaintiff Campbell.

On April 1, 1990, plaintiff Campbell was a passenger in a Geo Tracker (the “subject vehicle” or “vehicle”) driven by Pamela Wood. While Wood was driving the vehicle that day, a collision occurred between it and another vehicle, and Campbell sustained injuries during the collision.

Campbell brought suit against Wood, the owner of the vehicle Wood was driving, and the driver of the other vehicle involved in the collision. Wood filed a third-party complaint against Allstate Insurance Company alleging that Allstate insured the vehicle she was driving on the date of the collision and had a duty to defend her in the lawsuit filed by Campbell because she was a permissive driver of the subject vehicle and the collision was an insured event.

The subject vehicle was owned by Louise Simmons, who testified that she purchased the vehicle with Wendy Waters, her boyfriend’s daughter, “in mind.” An informal agreement was reached that Waters would reimburse Simmons for payments made on the vehicle, and that when it was paid for, the vehicle would be given to Waters. Although Waters never reimbursed Simmons for the two payments Simmons made on the vehicle before the accident, she was allowed to frequently drive the vehicle. In fact, Simmons testified that Waters drove it as much as she did.

On the day in question, Waters, with Simmons’ permission, drove the vehicle to Dublin. Simmons averred in an affidavit that the permission she gave Waters to use the subject vehicle included driving around Dublin and socializing with her friends, but did not include consuming alcohol in the vehicle, allowing others to consume alcohol in the vehicle, or allowing others to drive the vehicle.

When Waters arrived in the Dublin area she went to see some friends and they decided to ride around in the vehicle. Waters gave Wood permission to drive the vehicle while they drove around Dublin. At the time of the collision, Wood was entering the highway with the purpose of taking a friend who had been riding with them to his car. Waters had gotten out of the vehicle just before the collision but did not revoke Wood’s permission to drive the vehicle.

1. The Allstate policy insuring the subject vehicle defines “persons insured” to include “(a) you, (b) any resident, and (c) any other person using it with your permission.” (Emphasis and indentations omitted.) As the trial court correctly noted, the “second permittee doctrine” as set forth in our decision in Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989) provides: “In essence, the permission to use contained in an omnibus clause refers to the purpose for which permission was given and not to the operation of the vehicle. Thus, where a third person utilizes a vehicle via another person who did have permission from the owner, the fact that such third person had neither express nor implied permission from the owner is irrelevant. So is the fact the third person had no license to drive or was expressly forbidden to drive by the owner. ‘(T)he policy only requires permission for the purpose to be served.’ [Cits.] As long as the use falls within the scope of the permission then it is permissive within the policy terminology.” In this case, the relevant inquiries therefore are: (1) whether Simmons’ permission to the first permittee, Waters, included using the vehicle for socializing; and (2) if the scope of the permission Wood received from Waters exceeded the permission Waters had from Simmons. There is no evidence to dispute the averment in Simmons’ affidavit and testimony during her deposition that Waters had permission to use the vehicle while in Dublin for the purpose of socializing with friends. Waters’ and Simmons’ failure to specifically discuss that use is not fatal under the facts of this case, given Simmons’ express acknowledgment that Waters had her permission to use the vehicle for that purpose and Waters’ extensive use of the vehicle prior to the accident. The evidence is also undisputed that Waters gave Wood permission to drive the vehicle while they socialized, and Wood had not departed from that purpose at the time of the accident. Accordingly, the trial court correctly applied the “second permittee doctrine” to the facts of this case.

We reject Allstate’s argument that even if Simmons’ permission to Waters included socializing with friends, the presence of alcohol in the vehicle extended the use of the vehicle beyond the scope of the permission. As our Supreme Court noted in Strickland v. Ga. Cas. &c. Co., 224 Ga. 487 (162 SE2d 421) (1968), the purposes of an insurance policy would be defeated if the named insured could permit the use of a vehicle but at the same time prohibit its negligent use. Id. at 489-490. Furthermore, there is no evidence that the presence of alcohol was a factor in the underlying collision, as all evidence indicates that Wood had not consumed alcohol on the day of the collision, and in fact, that was why she was driving the subject vehicle at the time of the collision.

Decided January 13, 1994.

Bonnie K. Cole, Robert S. Slocumb, for appellant.

Reynolds & McArthur, Bradley J. Suruant, Miller & Towson, Wallace Miller III, for appellee.

Contrary to Allstate’s contentions otherwise, Allstate Ins. Co. v. Martin, 136 Ga. App. 257 (220 SE2d 732) (1975), aff’d sub nom. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 236 Ga. 710 (225 SE2d 1) (1976) is factually distinguishable from this case. In that case the undisputed evidence showed that the second permittee had departed from the permission given by the first permittee at the time of the accident. In this case, Waters had permission to use the vehicle to socialize. Waters, in turn, gave Wood permission to use the vehicle for that purpose, and Wood had not departed from that purpose at the time of the collision.

2. Wood’s motion to impose a penalty for frivolous appeal against Allstate is denied.

Judgment affirmed.

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


text:
    A93A1911.
    TACKETT et al. v. THE STATE.
    (440 SE2d 74)
   Andrews, Judge.

Anthony Ray Tackett and Mary Ann Adams entered pleas of nolo contendere to charges of violating the Georgia Controlled Substances Act. As part of their negotiated plea, the prosecutor and the trial court agreed to an express reservation of appellants’ right to bring this appeal from the denial of their motions to suppress. See Claffey v. State, 209 Ga. App. 455 (433 SE2d 441) (1993); Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991). Tackett and Adams enumerate three errors from the trial court’s failure to grant their motions to suppress.

The court held a hearing on Tackett’s motion, which motion Adams adopted. At the hearing, Detective Mike Leonard of the Dalton Police Department, testified that on August 27, 1992, he submitted an affidavit for a search warrant to be executed at a residence in which he thought appellant Tackett resided. The affidavit, which contained all of the information presented to the magistrate, stated: “During the last three weeks, affiant has been conducting an investigation into illegal drug activity (selling marijuana) at and around the residence of Tony Tackett located at Pleasant Drive, Dalton, Whitfield County, Georgia. During the past 72 hours, affiant has made one controlled buy from Tony Tackett at his residence on Pleasant Drive. The controlled buy was made by a confidential informant who was assisting affiant in the investigation. The controlled buy was controlled by affiant. The confidential informant was seen by affiant entering the residence of Tony Tackett during the controlled buy of marijuana and all conversations by confidential informant and Tony Tackett were monitored by affiant during the controlled buy. While inside the residence of Tony Tackett, the confidential informant did observe a quantity of marijuana inside the residence during the controlled buy. Affiant has known confidential informant for the past two years and affiant has never found the informant untruthful. The confidential informant has provided other information to affiant previously which affiant has deemed true and accurate. Furthermore, the confidential informant has displayed a truthful demeanor while giving said information, and the confidential informant has nothing to gain by giving false information. For reasons stated above, affiant has probable cause to believe a quantity of marijuana is located at the residence of Tony Tackett. Other party clause. The confidential informant has in the past observed other people purchasing marijuana from inside the residence of Tony Tackett. In affiant’s experience that marijuana is easily hidden or disposed of, affiant is requesting a other party clause.”

In addition to that affidavit, an affidavit describing the trailer residence was submitted.

Leonard obtained a search warrant for the premises and a search was conducted at Tackett’s residence at about 11:30 p.m. on August 27. Three bags of marijuana were found in the residence: one bag near a waterbed; one bag in Ms. Adam’s purse; and one bag on Tackett’s person. Adams admitted that the marijuana in the purse belonged to her. There was evidence that Adams lived at the trailer with Tackett.

1. In their first enumeration of error, appellants claim that the information used to secure the search warrant was secured by illegal means. In support of their argument, they cite Dobbins v. State, 262 Ga. 161 (415 SE2d 168) (1992), in which no valid consent to the conversation was involved. Given the facts of this case, Dobbins does not control.

Next, appellants argue that there was no evidence that the confidential informant consented to having his conversation monitored, nor was there any evidence that other persons present at Tackett’s residence on the evening of the controlled buy consented to the recording. In this case, the warrant and supporting affidavit were produced. Detective Leonard testified that he put the body wire on the informant near his waist. “The informant’s consent is implied by the fact that he permitted the officer to place a ‘body bug’ on him.” (Citation omitted.) Willis v. State, 193 Ga. App. 659, 660 (3) (388 SE2d 869) (1989). There was no evidence that the provisions of OCGA § 16-11-66 were inapplicable or that the placement of the “body bug” was improper. Appellants’ argument is without merit. See Goodwin v. State, 154 Ga. App. 46, 49 (1) (b) (267 SE2d 488) (1980) (if one of the parties divulges the conversation to others, he has consented to its interception and there is no need to prove such informant’s consent to the monitoring); see generally State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978); State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984) (discusses burden of proof in a motion to suppress). Furthermore, there was no evidence that the informant improperly recorded the conversation between himself, Tackett and other parties.

2. In their second enumeration of error, appellants claim that there was insufficient evidence contained in the affidavit to establish probable cause. Appellants raise several specific arguments in this regard, focusing on the fact that the affidavit does not establish that the affiant officer conducted an independent verification of the information.

This enumeration is without merit and the trial court’s denial of the motions to suppress was proper. “In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by this court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . . Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding’ that probable cause existed. (Cit.)” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). “An informant’s veracity, reliability, and basis of knowledge are ‘highly relevant in determining the value of his report’ and while these elements are not ‘entirely separate and independent elements to be rigidly exacted in every case,’ they are ‘closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.’ Illinois v. Gates, supra at 230.” State v. Brown, 186 Ga. App. 155, 157 (2) (366 SE2d 816) (1988). Here, the magistrate who issued the warrant had a substantial basis for concluding that probable cause existed. See generally Wilbanks v. State, 176 Ga. App. 533 (3) (336 SE2d 312) (1985); State v. McKendree, 188 Ga. App. 290 (372 SE2d 673) (1988).

Decided January 13, 1994.

Harriss, Hartman, Aaron, Wharton & Boyd, John L. O’Dell, for appellants.

Jack O. Partain III, District Attorney, Bert M. Poston, Jr., Assistant District Attorney, for appellee.

3. Finally, appellants argue that the motion to suppress should have been granted as to Adams because she was neither named in the warrant nor did independent probable cause exist for a search of her purse.

As stated above, Adams adopted in writing Tackett’s motion to suppress. The grounds asserted here were not raised in that motion. “OCGA § 17-5-30 establishes the statutory procedure which must be followed to suppress as evidence anything obtained as a result of an unlawful search or seizure on certain specified grounds. . . . OCGA § 17-5-30 (b) expressly requires that the motion to suppress shall be in writing and state facts showing that the search and seizure were unlawful. .. . [A] 11 motions to suppress, whether based on statutory or non-statutory grounds must state facts and not merely conclusions.” (Citations, punctuation and emphasis omitted.) Boatright v. State, 192 Ga. App. 112, 117 (8) (385 SE2d 298) (1989).

Although the motion to suppress contained details regarding Tackett’s arguments, neither the arguments asserted in this enumeration, nor the pertinent facts thereto were presented in the motion to suppress. In the arguably pertinent portion of the motion to suppress, it argues only that the search exceeded the scope of the warrant, and was unconstitutional and illegal. “We find that the trial judge correctly concluded that the motion to suppress did not state facts showing that the search and seizure were illegal. Rather, the motion contains only a series of conclusions unsupported by statements of fact. Accordingly, the motion did not meet the statutory requirements of OCGA § 17-5-30 (b), and the trial court did not err in its disposition of. the motion.” See also Taylor v. State, 197 Ga. App. 678 (1) (399 SE2d 213) (1990).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A1925.
    SAWYERS v. THE STATE.
    (440 SE2d 256)
   Cooper, Judge.

Defendant appeals from his conviction of robbery and the denial of his motion for new trial.

The evidence adduced at trial showed that on the evening of October 25, 1990, at approximately 9:45 p.m., the victim was returning from a shopping trip at Lenox Square Mall and pulled her car into a parking space close to her apartment building. A man approached as she walked toward her building and demanded that she hand over her purse. When the victim resisted, the assailant placed her in a choke-hold and dragged her to a corner of the building. The victim struggled and screamed for help. The assailant held a knife or some other object against her throat. An apartment maintenance man ran over, and the assailant claimed he was having an argument with his girl friend. The victim managed to get away and ran to the landing of her building which was well-lit. The assailant and the maintenance man followed, and the three of them stood in the landing staring at each other for several moments. The maintenance man suggested that the assailant leave, and the assailant eventually grabbed the victim’s purse and ran away.

The victim described the assailant to police as a young well-groomed black male with short hair and a thin mustache, wearing a brown sweater and brown corduroy pants. The maintenance man gave essentially the same description although he also recalled the assailant wearing wire-rimmed glasses and an earring. Approximately 30 minutes after the robbery, police found a man matching the description in the next block and returned to the victim’s apartment with the man, who was subsequently identified as defendant. Both the victim and the maintenance man separately identified the defendant as the assailant. They also both identified defendant at trial as the assailant. Defendant denied committing the robbery, contending he had been the victim of a robbery that same evening.

1. Defendant contends the trial court erred in denying his motion to suppress the out-of-court identification because it was unduly suggestive. “Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, [and] the level of certainty demonstrated by the witness at the confrontation.” (Citations and punctuation omitted.) Allen v. State, 203 Ga. App. 851, 852 (418 SE2d 125) (1992). Defendant was apprehended near the robbery scene approximately 30 minutes after it occurred. He was positively identified by both the victim and the witness who had ample opportunity to view him at the time of the robbery in a well-lighted area. Although defendant was shirtless and not wearing glasses at the time he was apprehended, both the victim and the witness otherwise gave accurate descriptions of appellant to police. Under the totality of the circumstances, we find no substantial likelihood of misidentification in this case, and the trial court did not err in denying the motion to suppress.

2. Defendant asserts the trial court erred in admitting as a similar transaction evidence of a prior conviction for a robbery committed in 1985. Specifically, defendant contends the State failed to prove there were sufficient similarities between the previous robbery and the instant offense. At trial, a young woman testified that on January 17, 1985, at approximately 9:45 p.m., she was walking alone towards her car at Lenox Square Mall when she was approached by the defendant who pressed something against her back and demanded that she hand over her purse. The woman did not resist and handed over her purse. The State further introduced evidence that defendant had pled guilty and was convicted of that robbery in May 1985.

In order for evidence of a similar offense to be admissible, there must be, inter alia, “sufficient similarity or connection between the independent crime (or transaction) and the offense charged.” (Citation and punctuation omitted.) Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87) (1992). Both incidents involved females leaving Lenox Square Mall alone at closing time and being approached by the defendant who may have had a weapon and demanded that the women hand over their purses. We find sufficient similarity between the prior offense and the crime charged. Accordingly, the trial court did not abuse its discretion in admitting evidence of the 1985 robbery as a similar transaction.

3. Defendant also contends the trial court erred in refusing to allow an expert witness to testify concerning potential inaccuracies in eyewitness identification. “The law generally disallows expert testimony regarding inaccuracies in eyewitness identification.” (Citation omitted.) Henderson v. State, 200 Ga. App. 200, 202 (4) (407 SE2d 448) (1991). “The determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Citation omitted.) Norris v. State, 258 Ga. 889 (1) (376 SE2d 653) (1989). The trial court did not err in excluding expert testimony on this issue.

4. Defendant alleges he was denied due process because the prosecutor conducted an improper inflammatory cross-examination of him. Defendant does not set out in his brief the specific instances of the prosecutor’s alleged misconduct. In any event, our review of the record reveals that the prosecutor simply conducted a thorough and sifting cross-examination of defendant. See OCGA § 24-9-64; Brantley v. State, 262 Ga. 786 (8) (427 SE2d 758) (1993).

Decided January 13, 1994.

Suparna Malempati, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

5. Defendant next takes issue with the trial court’s instructions to the jury that should they find defendant guilty beyond a reasonable doubt of the offenses charged, “it would be [their] duty to convict.” Defendant contends it was reversible error to give such a charge because it may have confused the jury as to the definition of reasonable doubt. The Supreme Court considered an identical charge in Sutton v. State, 262 Ga. 181 (2) (415 SE2d 627) (1992), wherein it found no reversible error, but suggested that the better practice would be to advise the jury that they “ ‘would be authorized to find the defendant guilty.’ ” Id. at 181 (2). The holding of Sutton also applies in this case. See Taylor v. State, 262 Ga. 584 (2b) (422 SE2d 430) (1992). Accordingly, we find no reversible error.

6. Defendant finally contends the trial court erred in denying his motion for new trial because the evidence was insufficient to support a guilty verdict. As related above, the evidence presented at trial was sufficient to allow rational jurors to find defendant guilty of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1944.
    BENJAMIN v. THE STATE.
    (440 SE2d 259)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and kidnapping. He appeals from the judgment of conviction and sentence entered on the jury verdict.

1. Appellant contends there was insufficient evidence at trial to support the jury’s verdict. The evidence adduced at trial showed that on December 18, 1991, at approximately 7:00 p.m., an employee at a Sandy Springs theater observed three black men whispering to each other outside the box office. The men left and returned approximately two hours later, purchasing tickets for the second show. A short time after they entered the theater, the men forced several employees at gunpoint to an upstairs office where they tied the employees’ hands and forced them to lie on the floor. The men robbed several of the victims individually and took money from the safe. Police confronted the robbers as they left the theater, one of whom dropped a bag of money. One robber escaped, and the other two ran into woods near the theater where they were later apprehended. A police officer identified appellant at trial as one of the robbers who had been apprehended. Several theater employees identified appellant from a photographic line-up and at trial as one of the robbers. Police recovered a mach-11 automatic weapon and a 9 mm pistol from the theater.

The evidence further showed that one week earlier, a similar robbery occurred at a convenience store in Morgan County, Georgia, in which three black men tied up the store manager at gunpoint and robbed the store. They used a mach-11 automatic weapon and took a 9 mm pistol from the manager. A cartridge fired from the 9 mm pistol in the store robbery matched the 9 mm pistol recovered from the theater. The store manager identified appellant at trial, and both the manager and a witness to the store robbery identified appellant from a photographic line-up. We find the evidence presented at trial was sufficient to allow rational jurors to find appellant guilty beyond a reasonable doubt of all charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred in failing to give curative instructions or grant a mistrial after a State’s witness improperly placed his character in issue. Specifically, appellant claims a detective at trial named him as a suspect in an uncharged armed robbery. In response to the prosecutor’s question concerning how the photographic line-up in the convenience store robbery was prepared, the detective testified: “I got some photos from [a] Thompson, Georgia, G.B.I. Agent . . . who was investigating an armed robbery that had occurred in a [restaurant] in that county in October, I believe, where three subjects had used uzi-type weapons and robbed the [restaurant]. He had photographs of the three subjects. They had been stopped and questioned but had not at that time been charged.” Counsel for appellant did not object to this testimony. The agent further explained that he had also utilized photographs of three other individuals in the line-up who were similar in appearance. Counsel for appellant then cross-examined the detective regarding the photographic line-up, eliciting that the suspects in the restaurant robbery had been questioned but released. Counsel then moved for a mistrial and curative instructions on the ground the detective’s reference to appellant being a suspect in the restaurant robbery placed his character in issue. The trial court denied the motion. Later, outside the presence of the jury, appellant’s counsel again moved for a mistrial, which the trial court denied.

Decided January 13, 1994.

Michael A. Barkin, for appellant.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Barry I. Mortge, Assistant District Attorneys, for appellee.

“A motion for mistrial not made contemporaneously with the alleged misconduct renders the motion untimely.” (Citations omitted.) Lewis v. State, 186 Ga. App. 349, 352 (6) (367 SE2d 123) (1988). Furthermore, the detective’s statement did not identify appellant as one of the suspects in the restaurant robbery; he simply stated that the photographic line-up consisted of photographs of three suspects in a prior robbery and photographs of three other individuals bearing a similar appearance. Moreover, even if the jury could reasonably infer that appellant was one of the suspects from the prior robbery, the detective’s statement was not sufficient to place appellant’s character in issue. Even a police officer’s references to “a vocation on file of [the defendant]” or the defendant’s picture being in a mug book have been determined not to place a defendant’s character in issue. See Gooden v. State, 204 Ga. App. 62 (2) (418 SE2d 632) (1992); McKenzie v. State, 187 Ga. App. 840 (6) (371 SE2d 869) (1988). Accordingly, we find no abuse of discretion in the trial court’s refusal to grant a mistrial or give curative instructions.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2081.
    BALLEW v. THE STATE.
    (440 SE2d 76)
   Andrews, Judge.

Ballew pled guilty to possession of marijuana with intent to distribute and possession of alprazolam. In accepting the guilty plea, the trial court expressly approved the reservation of the defendant’s right to appeal the court’s refusal to grant him discharge and acquittal based on the State’s failure to try him within the required time after he filed a demand for trial pursuant to OCGA § 17-7-170. Mims v. State, 201 Ga. App. 277, 278-279 (410 SE2d 824) (1991); Smith v. State, 199 Ga. App. 771 (406 SE2d 118) (1991).

After being charged in October 1991 and indicted in January 1992 in the Union County Superior Court, Ballew filed his demand to be tried within the present or next following term of court pursuant to OCGA § 17-7-170 on May 18, 1992, during the January term of court. Thereafter, both the January 1992 term of court and the following July 1992 term of court expired, and Ballew’s case was set for trial in the January 1993 term of court. It is undisputed that juries were empaneled and qualified to try the case in the January 1992 term after the demand for trial was filed, and during the following July 1992 term.

Nevertheless, the State contended in the trial court that Ballew was not entitled to automatic discharge and acquittal for the failure to try him within two terms because Ballew waived the requirements of OCGA § 17-7-170 by filing a motion to suppress, and subsequently consenting to a continuance of the case so that the motion could be ruled on by the trial court. The State has not filed a brief in this court in response to Ballew’s enumeration of error and brief.

Ballew filed a motion to suppress on May 5, 1992, but no ruling was rendered until it was denied in the January 1993 term of court. “The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. ... A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” (Citations and punctuation omitted; emphasis in original.) State v. Waters, 170 Ga. App. 505, 508 (317 SE2d 614) (1984). The State has the burden of showing that the defendant or his counsel took such affirmative action resulting in a waiver of the requirements of OCGA § 17-7-170. Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989).

Where the defendant files a motion to suppress, the motion is granted by the trial court, and the State elects to file a direct appeal pursuant to OCGA § 5-7-1, the defendant is deemed to have consented to a delay in the trial of his case tolling the time requirements of OCGA § 17-7-170 pending final resolution of the issue of evidentiary admissibility. Waters, supra at 508. Here, however, the motion was not granted and appealed by the State, but denied more than two terms after the demand for trial was filed. A hearing was held on the motion to suppress on November 30, 1992 during the July 1992 term of court. After the hearing, the trial court took the motion under advisement and stated: “We’re not going to try your client today or this week either, because of your recent appointment.” Ballew’s counsel, who had been appointed by the trial court on November 5, 1992, made no statement in response. The record is not clear as to whether there were subsequent weeks in the term in which juries were empaneled and qualified to try the case.

Although the trial judge acted out of a concern that new trial counsel may not have had sufficient time to prepare for trial, there is nothing in the record to indicate that defense counsel was not prepared to try the case. Moreover, there is no indication that the recent appointment of new defense counsel was a result of action taken by the defendant or counsel. Rather, it appears that the July 1992 transfer of Union County Superior Court from the Mountain Circuit to the newly created Enotah Circuit resulted in the replacement of the public defender representing Ballew by an appointed attorney under a new system for indigent criminal defense. There is no evidence that Ballew took any action by which he or counsel representing him caused or consented to a delay of the trial to a subsequent term. Ciprotti v. State, 190 Ga. App. 639, 640 (379 SE2d 802) (1989). Although defense counsel said nothing when the trial court announced in his presence that it was continuing the case, we cannot infer under these circumstances that silence was an affirmative action clearly waiving the requirements of OCGA § 17-7-170, and a consent to pass the case to a subsequent term. Lusher v. State, 192 Ga. App. 606, 609 (386 SE2d 364) (1989).

Decided January 13, 1994.

Claude S. Beck, for appellant.

C. David Turk III, District Attorney, for appellee.

Ballew was entitled to discharge and acquittal pursuant to OCGA § 17-7-170.

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.