text:
    A92A2223.
    CITY OF HAMPTON et al. v. BRISCOE. BRISCOE v. CITY OF HAMPTON.
    A92A2234.
    (428 SE2d 411)
   Andrews, Judge.

We granted the City of Hampton’s application for leave to appeal the partial denial of its motion for summary judgment in plaintiff Briscoe’s action against it for inverse condemnation. The City of Hampton appealed in Case Nos. A92A2223 and A92A2234 is Briscoe’s cross-appeal.

The lawsuit arose from the following facts. Briscoe owns property in Hampton, Georgia. The property is located in a light manufacturing (M-l) zoning district. On August 18, 1989, Briscoe requested the issuance of a business license from the Hampton city clerk for a general merchandise auction on the property. He was advised that a business license could not be issued because of the fact that the use was not permitted in an M-l district.

Nevertheless, Briscoe attended a city council meeting on September 12, 1989, and requested the council to issue the license. The city council voted to issue the license at that meeting. The minutes of the meeting during which the permission for the license was granted are attached as an exhibit to plaintiff’s complaint. They show that during this meeting, the council concluded that “an auction would be determined to be similar and compatible with business [sic] allowed in a M-l zoning.”

In November 1989, Briscoe appeared again before the city council to have an additional license issued to expand the hours of the business and to include an outdoor automobile auction as part of the business. The minutes from this meeting are also included in the record, which show that the council voted unanimously not to reissue a 1990 license for his business.

The city council, realizing that Briscoe’s intended use was not permitted in the light manufacturing district and that the previous license he received had been issued in error, denied his application. The council further advised Briscoe that the first license would not be reissued when it expired at the end of 1989, though he would be reissued a license if he applied for one and had the property zoned appropriately. These facts are set forth in the affidavit of the mayor, attached to the defendants’ motion for summary judgment. Also attached to this affidavit is a letter dated December 21, 1989 to Briscoe which states that he was informed at that meeting that his license would be revoked December 31, 1989, although if “the zoning of the property was brought into conformity with the business activity you desire to conduct on the property, the business licenses would be reissued to you for the year 1990.” The letter also informed Briscoe that he “must re-apply for licenses for the businesses he desires to conduct on his property for the year 1990.” In Briscoe’s deposition, he admitted that he did not have the property rezoned, based on his opinion that the property was more valuable as a manufacturing property than as a commercial one.

On April 17, 1990, Briscoe filed this lawsuit for inverse condemnation against the City of Hampton, the mayor, and various city council members, alleging that he had obtained a vested right in the business license and that the City’s refusal to reissue the license or compensate him for the expenses and improvements to his property which he made in reliance upon the license amounted to a taking without just compensation.

The City answered and filed a motion for summary judgment in which it argued that because the use to which Briscoe had put his property was improper under the zoning ordinance, the license was invalid and therefore no vested rights attached to it. The trial court granted the City’s motion and ruled that Briscoe had no vested property interest resulting from the issuance of the license. Nevertheless, the trial court determined that questions of fact remained as to whether Briscoe was entitled to recover expenses incurred in reliance on the issuance of the license. The City filed its application for interlocutory appeal with respect to the aspect of its motion for summary judgment which was denied, which we granted.

Here, the City argues that the trial court erred in ruling that a question of fact existed as to whether Briscoe was entitled to recover damages incurred in reliance upon a business license, when the license was invalid, the use was not permitted under the zoning ordinance and no vested rights attached to the invalid license. The City argues that reliance damages are inseparable from vested rights and that Briscoe cannot recover damages since he had no vested rights to begin with. Conversely, in his cross-appeal, Briscoe argues that the trial court erred in holding that he did not acquire a vested property right in his business license and he is entitled to reliance damages.

We agree with the City’s argument that in order to recover damages here, Briscoe must show both a valid license and reliance on that license. In other words, Briscoe cannot recover damages if he had no vested right in the first place. Our determination thus becomes whether the license was valid, so as to confer vested rights, or void, in which case no damages are recoverable.

First, the fact that this case involves the issuance of a business license, not a building permit, indicates that Briscoe’s arguments are weaker than if he were arguing over the rights a permit conferred on him. In Cobb County v. Peavy, 248 Ga. 870, 872 (1) (a) (286 SE2d 732) (1982), though not clearly articulating what rights do vest in a holder of a business license, the Supreme Court differentiated between a business license and a building permit. “ ‘[A] building permit,’ ([cit.]) will create a vested right in the existing zoning ordinances. ... In contrast, a business license is typically not a device for ensuring compliance with zoning ordinances. ‘Although the general aim of both zoning and licensing regulations is the promotion of the general welfare, each is independent of the other and seeks to accomplish its purpose by a different means. The fact that a zoning ordinance permits a use in a particular district does not authorize the use there without a license. On the other hand, a license or permit does not authorize a use in violation of zoning laws. In other words, a license or permit does not relieve one from complying with a zoning ordinance, and this generally is true of a state license or permit.’ [Cit.] The license appellee obtained from the Cobb County Department of Revenue Collections was clearly not intended to serve a zoning compliance function. Accordingly, we conclude that appellee did not acquire vested rights under the prior zoning ordinance by virtue of her procurement of a business license. Cf. Clark v. International Horizons, 243 Ga. 63 (252 SE2d 488) (1979).” See also WMM Properties v. Cobb County, 255 Ga. 436, 438 (1) (a) (339 SE2d 252) (1986).

Here, the City argues that even under standards applicable to permits, the prior issuance of the license did not confer any rights on Briscoe. The City contends that the license was invalid in the first place and that while a validly issued permit confers vested rights, see generally Schulman v. Fulton County, 249 Ga. 852 (295 SE2d 102) (1982), no such rights are conferred by an invalidly issued permit. “A permit issued for a use or structure which is forbidden by the ordinance is beyond the power of the officer to issue; consequently, it has no legal status, is invalid, and is itself entirely without power to clothe its holder with any legal rights thereunder.” (Citations and punctuation omitted.) Corey Outdoor Advertising v. Bd. of Zoning, 254 Ga. 221, 225 (4) (327 SE2d 178) (1985). “The expenditure of even substantial sums in reliance upon a permit found to be void is generally held not to raise an estoppel against its revocation or against enforcement of the ordinance found to be violated by the use or structures maintained pursuant to the permit.” (Citations and punctuation omitted.) Corey, supra at 226; see also Matheson v. DeKalb County, 257 Ga. 48 (3) (354 SE2d 121) (1987). “Where a permit is issued by a governing body in violation of an ordinance, even under a mistake of fact, it is void, and its holder does not acquire any rights; even a substantial expenditure in reliance on a void permit does not raise an estoppel.” Id. at 49.

Here, the City argues that Briscoe’s business license of September 1989 was invalid for two reasons. First, citing Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (324 SE2d 776) (1984), and City of Atlanta v. Bull, 161 Ga. App. 648 (288 SE2d 335) (1982), the City contends that under the applicable city ordinance only the city clerk had the authority to issue the license and that the issuance of the license by the council was improper. Secondly, the City argues that the business license was invalid because Briscoe’s property was zoned for light manufacturing, and an auction business was required to be in a commercial district.

The record before us contains a copy of the city ordinance which provides that no new license may be issued for any business not in full compliance with zoning laws. The ordinance also provides that only the city clerk has the authority to issue a business license. The zoning ordinance, also in the record, provides that unless a use is specifically listed in a particular zoning district, the use is prohibited. An auction business is listed as a commercial use, and is not on the list of uses permitted in M-l zones. For this use to be permitted on Briscoe’s property it would need to be zoned C-2. Accordingly, it appears that the City’s arguments regarding the invalidity of the license in the first place are proper.

Decided February 24, 1993.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, Smith,

Welch & Studdard, A. J. Welch, Jr., for City of Hampton.

William H. Turner, Jr., for Briscoe.

Briscoe argues that City of Summerville v. Ga. Power Co., 205 Ga. 843 (55 SE2d 540) (1949), and Barker v. Forsyth County, 248 Ga. 73 (281 SE2d 549) (1981), support his theory. He contends that the zoning ordinance was adopted on the same day as his first business license was issued and that therefore his license was not in violation of the zoning ordinance and was valid. Furthermore, he contends that the council’s finding at the September meeting that his auction use was “similar and compatible with businesses presently allowed in the area,” prevents a finding that his license was invalid. Finally, he cites Harris v. Entertainment Systems, 259 Ga. 701 (386 SE2d 140) (1989), and contends that once his license was issued, he obtained a property interest in it, which appellants could not take without due process.

We find Briscoe’s arguments unavailing. Here, because there is no evidence that the council was permitted to issue the license and because Briscoe’s use did not comply with the zoning ordinance, it appears that the business license was invalid from its inception. Contrary to Briscoe’s assertions, we find no violation of his due process rights and find that the refusal to reissue his business license was proper. We further note that the fact that Briscoe did not apply for rezoning and reapply for a license renders his arguments less compelling in that he has not been forbidden from obtaining a license, should he apply for different zoning.

We conclude that Briscoe did not acquire any vested rights pursuant to his business license and find that summary judgment was properly granted with respect to that aspect of his claim. Because Briscoe had no vested rights, he could not recover damages and the trial court erred in determining that an issue of fact remained regarding that aspect of the case; and the City of Hampton was entitled to the entry of summary judgment.

Judgment affirmed in Case No. A92A2234; reversed in Case No. A92A2223. Birdsong, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A2247, A92A2248.
    TRUAX v. THE STATE (two cases).
    (428 SE2d 611)
   Andrews, Judge.

Sharon Truax, appellant in Case No. A92A2247, and her son Daniel, appellant in Case No. A92A2248, appeal the denial of their motions for new trial after both were convicted of entering an automobile to commit theft and he was convicted of misdemeanor escape. Their appeals will be considered together.

Viewed in favor of the jury’s verdict, Howell v. State, 188 Ga. App. 425 (1) (373 SE2d 216) (1988), the evidence was that around 10:00 p.m. on August 13, 1991, as he was heading home in an unmarked car after finishing his shift, sheriff’s investigator Kelley saw Ms. Truax driving her white Toyota. He recognized her and the car because she and her son lived down the street from him. She was alone in the car. She turned up the road leading to the high school, turned around, and returned to Highway 145. Because of the late hour and her unusual activity, Kelley began to follow her. There had been a number of thefts from the Franklin County road department lot and he parked in a residential driveway from which he could view the lot. About five minutes later, he observed Ms. Truax come down Highway 145 from the opposite direction and pull up near the entrance to the road department lot, where she stopped. The lot was dark and locked for the night. Kelley heard a car door slam and he got in his car and followed her. There were now two people in the car. He pulled her car over and asked where she was going. When she replied that she was going home, he inquired why she had stopped at the road department and she would not answer. At that point, Kelley walked to the passenger side and observed Daniel Truax in the passenger seat and on the floorboard between his legs was a Tumlin marine battery. Kelley asked Daniel to get out of the car and asked Ms. Truax where she had obtained the battery. She said she had bought it within the last couple of days from Mr. Lewallen. It was raining that evening and there was a pair of wet gloves on the front seat. The battery also was wet. Kelley then informed the Truaxes that they would have to ride over to the sheriff’s office to straighten out the matter. Daniel rode with Kelley and Ms. Truax followed them in her car. According to Kelley, Ms. Truax appeared nervous during the encounter.

Upon arriving at the station, they all went into the front office of the sheriff’s department where the radio operator was located. Kelley told Daniel to stay there. When asked if Daniel had been free to leave, Kelley testified “No. That was the reason I placed him in my vehicle.”

Kelley then went to a rear office to discuss another matter with other officers. While he was there, the radio officer came to ask if Daniel was supposed to stay and informed Kelley that Daniel had just walked out. They attempted to locate him at that time, but were unsuccessful.

Kelley then called Lewallen and inquired if Truax had purchased a Tomlin battery from him in the last couple of days. Lewallen informed him that he had stopped working for the used car lot about two weeks previously. He additionally told Kelley that marine batteries were not usually sold there. When Kelley informed Ms. Truax of this, she snapped her fingers and cursed.

Kelley then returned to the road department where he was joined by Kennedy who was in charge of the department. Kennedy unlocked the gate and they checked the vehicles. They found an ambulance with the hood unlatched. While ambulances normally have two batteries, there was only one in place and an empty space where the other should have been. The remaining battery was a marine Tumlin battery, like the one found in Truax’s car. Kelley also found the spot in the fence where entrance had apparently been obtained, about 50 feet from the gate.

At trial, Ms. Truax and her niece testified that, around the first of August, they had gone to Hartwell and purchased the battery for the Toyota. When asked why she initially said she purchased it from Lewallen, she blamed medication which she said caused memory problems and denied making that statement to Kelley when stopped.

1. At the close of all evidence, defendants made motions for directed verdicts, which were denied. Both enumerate the denial as error.

OCGA § 16-8-18 provides that if a person enters an automobile or vehicle with the intent to commit a theft or felony therein, he is guilty of a felony. While, here, no one saw the actual entry into the ambulance, it was after hours at a government facility with a locked gate. An ambulance was missing a battery, the hood was up, and the gate had been breached. The Truaxes were stopped near the lot with the same type battery in their possession. Whether the circumstances are sufficient to exclude every reasonable hypothesis save that of the guilt of the accused is a question for the jury. Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992). There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime, the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Groble v. State, 192 Ga. App. 260 (1) (384 SE2d 281) (1989).

2. Daniel Truax also contests the sufficiency of the evidence on his escape conviction, contending there was no proof that he was under “arrest” during the incident.

OCGA § 16-10-52 (a) (2) provides that a person commits escape when he “[b]eing in lawful custody or lawful confinement prior to conviction, intentionally escapes from such custody or confinement.”

Decided February 24, 1993.

Lavender & Lavender, Robert W. Lavender, Michelle C. Feinberg, for appellants.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

When Daniel was separated from Ms. Truax and placed in investigator Kelley’s police vehicle for the trip to the jail to further investigate the matter, the jury could reasonably conclude that “ ‘a reasonable person in the suspect’s position would have thought the detention would not be temporary.’ [Cit.]” Smith v. State, 202 Ga. App. 701 (1) (415 SE2d 495) (1992). Likewise, when seated in the anteroom of the police station in the presence of the radio officer and told to wait by Kelley, a reasonable person would not have thought he was free to go. Id.

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


author: Pope, Chief Judge.

text:
    A92A2254.
    ADAMS v. THE STATE.
    (428 SE2d 613)
   Pope, Chief Judge.

Appellant Norman Adams pled guilty to the offense of burglary on October 25, 1991 and received a five-year probated sentence. Approximately eight months later, his probation officer filed a petition seeking to revoke his probation because he had violated the terms and conditions of his sentence by allegedly committing the offense of aggravated assault on a police officer on April 1, 1992 and by failing to pay his fine and probation fee. He appeals from the revocation of his probation.

1. In his first three enumerations of error, the appellant argues the trial court violated his right to due process of law by failing to appoint counsel for the probation revocation hearing, failing to determine if appellant was competent to stand trial, and by conducting the revocation hearing at a time the appellant was under the influence of drugs. Because these enumerations are closely related, we will address them together.

“The procedure to be applied in determining whether an indigent probationer is entitled to appointed counsel at a revocation hearing is set forth in Gagnon v. Scarpelli, 411 U. S. 778, 790-791 (93 SC 1756, 36 LE2d 656) (1973) as follows:

“ ‘Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.’ ” (Emphasis omitted.) Elkins v. State, 147 Ga. App. 837, 838 (250 SE2d 535) (1978).

We initially note appellant did not request counsel for the probation revocation hearing. The acknowledgment section of the Petition for Revocation of Probation contains the following language: “I hereby acknowledge service of the foregoing petition and that I am aware that I may employ legal representation at said hearing or be represented otherwise as the Court may direct.” Appellant signed that section of the petition. There is no written request for counsel in the record. The record also reveals that there was no oral request for counsel either. However, there was discussion about the appointment of counsel during the revocation hearing. The public defender who represented appellant when he was charged with burglary and who has been appointed to represent appellant on the aggravated assault charge was present in the courtroom during the revocation hearing. When the appellant took the stand to testify on his own behalf, the prosecutor questioned him about whether he understood that he would be giving up his right to remain silent. After appellant testified he understood he would be giving up that right, the public defender had the following colloquy with the court:

“[Public Defender]: Excuse me, Your Honor. I didn’t hear the District Attorney go over his right to invoke his right to an attorney, because Mr. Adams has invoked his right to an attorney.

“The Court: Well, he hasn’t invoked it as to the probation revocation. That’s what we’re trying.

“[Public Defender]: Is the Court going to provide him with an attorney in the probation revocation?

“The Court: No, it’s not required unless there’s very unusual circumstances, not just factual matters. So this looks like more of a factual matter case than anything else.

“[Public Defender]: I understand what the Court’s saying. But the State is seeking to give this Defendant his rights, and in so doing, one of the Miranda rights is his right to an attorney. And I’m indicating to the Court that he has invoked that right, previous to this time.

“Also, Judge, having represented him previously or currently on the substantive charges, I think that it would be incumbent upon the Court to be aware that this client has some mental problems. He’s been diagnosed, and I’m not even certain, at this particular time, what kind of medications he’s — he may be on. And in the subsequent case, we filed the — a notice of the insanity defense. I make the Court aware of that. Thank you.”

Gagnon requires the appropriate agency to look at the facts of each probation revocation proceeding and determine whether fundamental fairness, the touchstone of due process, requires the State to provide counsel to the indigent probationer. Under the facts of this case, we hold that notions of fundamental fairness require that the trial court should have ascertained whether the appellant knowingly waived his right to request counsel at his probation revocation hearing when that issue was brought to its attention. The record before this court is replete with evidence of appellant’s mental incapacity. The transcript of appellant’s guilty plea to the burglary charge, which occurred a few months before appellant’s probation was revoked, contained evidence that appellant was being treated with behavior modification drugs, he had difficulty communicating with persons defending him, he had recently been treated at the Georgia Regional Medical Center and that he had an “invisible friend.” At the probation hearing, the trial court was made aware the appellant was still taking behavior modification drugs, had filed an insanity plea to the charge underlying the revocation proceeding and was uncommonly interested in mass murderers.

Furthermore, the acknowledgment section of the petition to revoke appellant’s probation is vague and does not adequately inform an indigent person, such as appellant, that they may request that the court appoint counsel for them. As the record reflects, appellant requested counsel for the underlying aggravated assault charge. It is likely, especially given appellant’s apparent mental incapacity, he could have believed that was sufficient to request counsel for all proceedings related to the aggravated assault charge, including the probation revocation proceeding.

For all these reasons we hold that the order of revocation is vacated and the case is remanded so the trial court can ascertain whether appellant knowingly waived his right to request counsel for the probation revocation hearing. If the trial court finds appellant did not knowingly waive his right to request counsel the trial court shall consider the factors set forth in Gagnon, 411 U. S. 778, to decide if fundamental fairness dictates that counsel should be appointed for appellant. Should the trial court decide that counsel should be appointed for appellant for the probation revocation proceedings, a new revocation hearing shall be held in which the appellant is afforded the opportunity to be represented by counsel. See generally Elkins, 147 Ga. App. 838. If the trial court determines counsel should not be appointed for appellant, the trial court shall issue an order specifying why the appointment of counsel is not necessary under the facts of this case.

Decided February 24, 1993.

J. M. Raffauf, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

2. Appellant argues the trial court violated his Fifth Amendment right by questioning him without his having the benefit of counsel about his alleged aggravated assault of a police officer. First, we note there was no objection below which would preserve this issue for appeal. Furthermore, the answers given by appellant to the trial court’s questions were completely self-serving; therefore, at most these questions could constitute only harmless error.

3. Appellant argues his Fourth and Fourteenth Amendment rights were violated when an illegal and warrantless search was conducted of his room. This alleged error was also not preserved by objection below. Also, appellant consented to the search of his room and the evidence presented about what was observed in his room was not relevant to the crime charged and at most was additional evidence of appellant’s mental incapacity.

Judgment vacated and case remanded with direction. Johnson, J., concurs. Carley, P. J., concurs in the judgment only.


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A92A2290.
    GREENWAY v. THE STATE.
    (428 SE2d 415)
   McMurray, Presiding Judge.

Defendant Greenway appeals his conviction of five counts of rape, five counts of burglary, and single counts of aggravated sodomy, aggravated assault, criminal attempt to commit burglary, and possession of tools for the commission of crime. Held:

1. Defendant’s first enumeration of error challenges the sufficiency of the evidence to authorize his convictions. The argument presented in support of this enumeration of error is directed primarily to the offenses involving just two of the victims.

The State’s evidence in regard to four of the victims included expert testimony that the deoxyribonucleic acid (“DNA”) of semen samples taken from the victims matched the genetic profile of DNA in a known sample of defendant’s blood. An expert testified that the probability of selecting an unrelated individual from the Caucasian population who had a genetic profile matching the semen taken from victim M. H. was one of 7,000 or one of 14,000, depending on which of two databases was used. Defendant relies on the fact that such a statistic means he is one of approximately 20,000 individuals in the country whose DNA would match the genetic profile of the semen sample taken from M. H. However, while the State is required to prove defendant’s guilt beyond a reasonable doubt, it is not required to establish that fact to a mathematical certainty. Vance v. State, 262 Ga. 236, 237 (2), 238, fn. 4 (416 SE2d 516). First, we note that the approximation of the number of Caucasian individuals with the same genetic profile includes females and individuals of all ages. Secondly, defendant’s conviction is not predicated entirely upon the DNA evidence as there is additional circumstantial evidence of his guilt including that showing similar crimes committed by defendant.

In connection with the offenses against victim M. H., defendant relies upon testimony from a physician that at that time defendant’s right arm and hand were immobilized in a splint as a result of surgery, and the absence of any testimony from M. H. regarding her attacker’s arm being handicapped. However, the physician also explained that the splint was held in place by an elastic bandage. Thus, defendant could have removed the splint himself.

Defendant also questions whether the State’s evidence identifying him as the perpetrator of the crimes against victim T. W. is sufficient. This victim identified defendant from a combination of a photo line-up and from an audiotape of an interview of defendant by police. The absence of DNA evidence as to this victim does not preclude defendant’s conviction for the offenses against this victim. The jury was presented with sufficient identification evidence through the testimony of the victim. Lowe v. State, 185 Ga. App. 606, 607 (2) (365 SE2d 479). Any issues arising from defendant’s attempt to impeach this victim were also for resolution by the jury.

As to each of the remaining offenses, defendant was identified as the perpetrator by DNA evidence or visual identification by the victim. A careful review of the entire record in this case reveals that there was ample evidence from which a rational trier of fact could determine the guilt of defendant beyond a reasonable doubt of all of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Battles v. State, 205 Ga. App. 510, 512 (422 SE2d 672).

2. Defendant enumerates as error the denial of his motion for severance. The defendant’s motion sought separate trials as to the charge or charges involving each alleged victim.

“Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462 (211 SE2d 752). However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.” Mack v. State, 163 Ga. App. 778 (1) (296 SE2d 115).

The charges against defendant clearly show a recurring pattern of conduct suggesting a common scheme or modus operandi. Each incident involved the early morning entry or attempted entry of a ground level apartment occupied by a lone female. In each of the incidents that defendant entered the apartment, he entered through a window or sliding glass door and left by the front door, sexually assaulted the victim, and told the victim that he would not be there long and that it would not take long. In most of the incidents defendant had trouble obtaining an erection and masturbated in order to achieve one, used a bandanna or handkerchief to conceal his identity, and possessed a knife. The criminal attempt charge involved a failed attempt to gain entrance, after which defendant was apprehended. Defendant was identified as the perpetrator of all of the offenses by either DNA evidence or the testimony of the victims. The trial court did not abuse its discretion in denying defendant’s motion for severance. Exley v. State, 198 Ga. App. 748, 750 (4) (402 SE2d 798); Seidel v. State, 197 Ga. App. 14, 15 (3) (397 SE2d 480); Phillips v. State, 160 Ga. App. 345 (1), 346 (287 SE2d 69).

3. The next enumeration of error complains of the trial court’s refusal to strike juror Holt for cause. “ ‘ “In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. (Cit.)” (Cit.)’ Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717). ‘ “The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause. (Cits.)” (Cit.)’ Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416). ‘While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. (Cit.) The trial court has the discretion as to whether to strike a juror for cause. (Cits.) We find no abuse of the trial court’s discretion. The court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and found that the juror(s) in question could render a fair and impartial verdict.’ Lattany v. State, 193 Ga. App. 438 (388 SE2d 23). Accord Ward v. State, 193 Ga. App. 137, 140 (8) (387 SE2d 150). We find no abuse of discretion here.” Nobles v. State, 201 Ga. App. 483, 487 (7) (411 SE2d 294).

4. At a pre-trial hearing on defendant’s motion in limine seeking to exclude DNA identification evidence, the State moved for the rule of sequestration. Defense counsel responded that the rule was inapplicable since he had only one witness, a DNA expert, whom he desired to use both to assist him in the cross-examination of the State’s expert and as the defendant’s expert witness. Nonetheless, after some colloquy the trial court ruled that if the defense expert was used to assist defense counsel in cross-examination, he would not be permitted to testify. Thus, defense counsel was compelled to choose whether to use the defense expert to assist in cross-examination or as a witness but not permitted to use him for both purposes. In his fourth enumeration of error, defendant contends that the trial court erred in thereby limiting his use of his expert witness.

Our sequestration statute, OCGA § 24-9-61, requires only that witnesses of the other party be examined out of the hearing of each other. Therefore, no violation of the statute occurs where a witness hears the testimony of the witnesses of the opposing party. Justice v. Kern & Co., 197 Ga. App. 272 (2), 273 (398 SE2d 223). It follows that the trial court’s ruling was not required by OCGA § 24-9-61.

Nonetheless, any resulting error was harmless. The only issue concerning DNA identification raised on appeal concerns the State’s expert’s assumption that the database used in her calculations was in Hardy-Weinberg equilibrium. Defendant’s expert opined that this assumption was erroneous, due to the problem of population substructuring. See Caldwell v. State, 260 Ga. 278, 288 (1) (e) (393 SE2d 436). Since the State’s expert, who testified at the pre-trial hearing, did not present testimony supporting the reasonableness of the assumption of Hardy-Weinberg equilibrium, it appears that defense counsel was not prevented from developing the evidence on any contested issue. In this connection, we should note that the State’s evidence as to some aspects of the reliability of DNA identification consisted of certain written exhibits. See Harper v. State, 249 Ga. 519, 525 (292 SE2d 389). At trial the State bolstered its evidence on several issues, including whether there was Hardy-Weinberg equilibrium and sub-structuring, by introducing the testimony of additional expert witnesses and defendant has raised no issues concerning the admission of this evidence at trial or application of the rule of sequestration at trial. Gregg v. State, 201 Ga. App. 238, 239 (3) (a), 240 (411 SE2d 65).

Defendant also enumerates as error the admission of the State’s DNA identification evidence predicated on the assumption of Hardy-Weinberg equilibrium in the population of the database. In Caldwell v. State, 260 Ga. 278, 288 (1) (e), supra, the State failed to establish that the population in the database used was in Hardy-Weinberg equilibrium. In the case sub judice, evidence was presented that new developments have dispelled concern that substructuring actually exists and rendered the assumption of Hardy-Weinberg equilibrium a scientifically verifiable conclusion. The superior court was authorized on the basis of the evidence of record to conclude that the DNA identification process including the assumption of Hardy-Weinberg equilibrium had reached a state of verifiable scientific certainty. Consequently, there was no error in the admission of the DNA identification evidence in this case.

5. While defendant enumerates as error the admission of evidence concerning two victims’ pre-trial identifications of him by voice recognition, no issue in this regard to admission of this evidence was raised at trial. This issue may not be presented for the first time on appeal. Melton v. State, 253 Ga. 178, 179 (2) (317 SE2d 839).

6. Finally, defendant contends that the trial court erred in denying his motion for new trial based on newly-discovered evidence. The standard for granting a new trial on the basis of newly-discovered evidence is well established. “ ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ Emmett v. State, 232 Ga. 110, 117 (205 SE2d 231) (1974); Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971); Burge v. State, 133 Ga. 431, 432 (66 SE 243) (1909); Berry v. State, 10 Ga. 511, 527 (1851); see Code Ann. § 70-204. All six requirements must be complied with to secure a new trial. Offutt v. State, 238 Ga. 454, 455 (233 SE2d 191) (1977); Corn v. State, 142 Ga. App. 798, 799 (237 SE2d 203) (1977).” Timberlake v. State, 246 Ga. 488, 490 (1), 491 (271 SE2d 792).

The evidence upon which defendant relies shows a physical resemblance between himself and a subject who had been observed repeatedly attempting to enter ground floor apartment windows before being apprehended. Other than the newly-found subject’s method of attempting entry to the apartments, there is nothing to connect him with the crimes of which defendant was convicted. The evidence presented by defendant in support of his motion was not so material that it would probably produce a different verdict. Therefore, the trial court did not err in denying defendant’s motion for new trial based on newly-discovered evidence. Japhet v. State, 176 Ga. App. 189 (1), 190 (335 SE2d 425).

Judgment affirmed. Cooper, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

Although concurring with the majority opinion, I wish to emphasize the trial court’s error in ruling that if the defense expert witness assisted defense counsel during cross-examination of the State’s witnesses, that expert would not be permitted to testify. As explained by the majority opinion, OCGA § 24-9-61 generally requires examination of a party’s own witnesses out of the hearing of each other, upon invocation of the rule by the other party; it does not prohibit one party’s witness hearing the testimony of the other party’s witnesses. See Stevens v. State, 247 Ga. 698, 702 (6) (278 SE2d 398) (1981); Hayes v. State, 182 Ga. App. 26, 28 (2) (354 SE2d 655) (1987). That statute provided no basis for the trial court’s limitation on the defendant’s use of his sole witness, who happened to be an expert on DNA evidence.

The purpose of the sequestration statute “is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness.” Lackey v. State, 246 Ga. 331, 334 (5) (271 SE2d 478) (1980). Certainly, the purpose of the statute was not served by forcing upon the defendant the choice of giving up the testimony of his one and only witness, if that witness assisted him as a DNA expert during the trial.

Where the sequestration rule has been properly invoked, it is within the discretion of the trial court to permit a witness to remain in the courtroom to assist either party. Dye v. State, 220 Ga. 113 (2) (137 SE2d 465) (1964); Justice v. State, 213 Ga. 166 (97 SE2d 569) (1957). “The trial judge should exercise his discretion so that ‘the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided. . . .’ [Cits.]” Parham v. State, 135 Ga. App. 315, 321 (217 SE2d 493) (1975).

In the instant case, the State relied heavily upon DNA evidence in proving the charges against the defendant. Familiarity with the use of DNA evidence has not yet become common knowledge in the courtroom, and even the Supreme Court has noted the beneficial assistance of an expert witness in defending against such evidence. See Caldwell v. State, 260 Ga. 278, 290 (1) (f) (393 SE2d 436) (1990). Allowing the defense expert witness to assist during cross-examination and also testify would not have deprived the State of its “fair rights,” as it had the benefit of several DNA experts, and would not have impaired the efficiency of the court. In fact, by enabling defense counsel to engage in a more informed cross-examination, it might even have increased the efficiency of the proceeding. Accordingly, even if OCGA § 24-9-61 were applicable when a party has only one witness, the trial court’s limitation on the defendant’s use of the DNA expert witness in this case constituted an abuse of discretion.

Decided February 24, 1993.

Richard E. Hicks, for appellant.

Thomas J. Charron, District Attorney, Jack E. Mallard, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In contending that OCGA § 24-9-61 authorizes sequestration of a solitary defense expert witness to prevent the expert’s hearing the testimony of the other witnesses, the State misplaces its reliance upon Bartell v. State, 181 Ga. App. 148 (1) (351 SE2d 495) (1986). With regard to the question of whether the statute even applies to such a situation, Bartell is silent as to whether the other witnesses were the State’s witnesses, defense witnesses, or both. However, assuming the applicability of the rule to a solitary witness, the sequestration of the expert witness in Bartell resulted from the trial court’s concern that to do otherwise would give the defense an unfair advantage, and such a concern was not present in the instant case. Further, the need for and use of the witness as an accident reconstruction expert differed greatly from the need for and use of a DNA expert witness here.

Nevertheless, despite the trial court’s erroneous limitation on the use of the defense expert witness, it appears that the defense counsel was able to develop fully the evidence contesting the validity of the DNA evidence. For that reason, as concluded by the majority opinion, the trial court’s error was harmless under the particular circumstances presented in this case.


author: Johnson, Judge.

text:
    A92A1670.
    FERGUSON v. COLUMBIA PROPERTIES, INC. et al.
    (428 SE2d 422)
   Johnson, Judge.

Vonda Fay Ferguson filed suit against Columbia Properties, Inc., The Kroger Company, Hails Construction Company, and Barry O’Neill for injuries allegedly sustained when she slipped and fell on the premises of a shopping center. Ms. Ferguson fell while descending a ramp leading to the parking lot of a Kroger store. She was carrying two bags of groceries when her foot slipped on a metal staple, measuring approximately three-eighths of an inch across, imbedded in the concrete allegedly causing her to lose her footing. The ramp and the staple were painted yellow. She did not see the staple prior to her fall. Ferguson alleges her injuries were proximately caused by Hails’ defective construction of the ramp, as well as negligent failure to warn of the dangerous condition of the ramp and failure to exercise ordinary care in keeping the premises and approaches safe on the part of O’Neill (the owner of the property), Columbia Properties (the property management company), and Kroger (the tenant). Summary judgment was granted in favor of O’Neill, Columbia Properties and Kroger, and denied as to Hails Construction. Ferguson appeals.

Decided February 25, 1993.

Bannister & Black, Charles C. Black, for appellant.

Barksdale & Mobley, M. Scott Barksdale, Bentley, Karesh & Seacrest, Gary L. Seacrest, Richard B. Crohan, Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Daniel J. Huff, for appellees.

Ferguson asserts that summary judgment was improperly granted in favor of the owner of the property, Barry O’Neill, Kroger and Columbia Properties. We disagree. “[W]here the allegations of the petition show that the defect, if any, in the premises alleged to have caused plaintiff’s injury was so slight that no careful or prudent man would reasonably anticipate any danger from its existence, no cause of action is set forth. [Occupiers] of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. . . . [0]ne coming upon such premises is not entitled to an absolutely smooth or level way of travel.” (Citations and punctuation omitted.) Associated Distributors v. Canup, 115 Ga. App. 152, 153 (154 SE2d 32) (1967). Accord Hughes v. Winn-Dixie Stores, 142 Ga. App. 110 (1) (235 SE2d 619) (1977). A photograph illustrating the size of the staple is contained in the record. When compared to a Lincoln penny placed beside it, the staple appears to be roughly the length of the president’s head.

Ferguson testified that she had shopped at this Kroger two or three times per week for approximately a year, using the same ramp. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Rossano v. Am. Legion Post No. 29, 189 Ga. App. 610, 612 (376 SE2d 698) (1988). See generally Rose v. Kennesaw House, 203 Ga. App. 648 (417 SE2d 379). (1992). We conclude that the trial court did not err in granting summary judgment to O’Neill, Columbia Properties and Kroger.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Blackburn, Judge.

text:
    A92A1766.
    RIDER v. THE STATE.
    (428 SE2d 423)
   Blackburn, Judge.

Phillip L. Rider was convicted of simple battery and acquitted of aggravated assault in an incident involving his former girl friend. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant first enumerates as error the trial court’s decision to allow the State, over appellant’s objection, to adduce testimony from the victim concerning prior difficulties between her and appellant without having given the advance notice required by USCR 31.1, 31.3.

The victim testified on direct examination that appellant had summoned her to his home to retrieve a television set they had bought together but for which he was no longer able to make the payments. She testified that after they exchanged heated words over her wish to take some photographs in appellant’s possession, appellant kicked her in the back, slapped her, and struck her on the top of her head. On cross-examination, appellant’s counsel sought to establish that the victim was angry with appellant because he had broken up with her and was now seeing another woman. The victim responded that she was angry with appellant but “didn’t want to start another fight.” Counsel then asked whether the couple had “other fights” and inquired “[w]hat were those fights over?” On redirect, the State then sought to question the victim concerning the details of other fights with appellant. In response to appellant’s objection, the court held an extensive hearing outside the presence of the jury and ruled the evidence was admissible because appellant’s defense and line of questioning had opened the door to the challenged testimony.

The Supreme Court held in Maxwell v. State, 262 Ga. 73, 74-75 (2) (414 SE2d 470) (1992) that the prior notice requirements of the Uniform Superior Court Rules and the procedure set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) apply to evidence of prior difficulties between the defendant and the victim. It is undisputed that not all of those requirements were met here. Nonetheless, after a careful review of the trial transcript, we agree with the trial court’s characterization of appellant’s acts. Appellant sought to exclude further details concerning the same area of inquiry he had introduced. “One cannot complain of a result he procured or aided in causing ([cit.]) and induced error is not an appropriate basis for claiming prejudice. [Cits.]” Hawkins v. State, 195 Ga. App. 739 (395 SE2d 251) (1990). Accord Littlefield v. State, 197 Ga. App. 343 (2) (398 SE2d 375) (1990). Moreover, given that appellant admitted pushing and slapping the victim, the evidence against him was overwhelming, and thus “it is highly probable that the admission of the evidence in question did not contribute to the verdict. [Cit.]” Loggins v. State, 260 Ga. 1, 2 (2) (388 SE2d 675) (1990).

Decided February 25, 1993.

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

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

2. Appellant also contends the trial court erred by refusing his request to charge the jury on the language of OCGA § 16-5-25. It is not error to fail to give the exact language requested by the defendant when the same principles are fairly given to the jury in the court’s general charge. Radford v. State, 202 Ga. App. 532, 534 (1) (415 SE2d 34) (1992). The court did instruct the jury in substantially the same language of OCGA § 16-5-25 (indeed, in a manner more favorable to appellant than OCGA § 16-5-25). Accordingly, we find no error. See Radford, supra.

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


text:
    A92A1838.
    HAYES v. THE STATE.
    (428 SE2d 425)
   Blackburn, Judge.

The appellant pled guilty to and was convicted of kidnapping with bodily injury in DeKalb County and his conviction was affirmed by this court in Hayes v. State, 190 Ga. App. XXVIII (1989). On appeal, he asserts as error the trial court’s denial of his discovery request.

Since the appellant’s conviction, he has made several motions for the production of documents to the DeKalb County Superior Court. On June 8, 1989, the court ordered the clerk of court to provide the appellant with copies of the transcript as well as other documents contained in the court files pursuant to one of the motions filed by the appellant. Copies of all transcripts and documents were mailed to the appellant on June 23, 1989. In 1991, the appellant filed a petition for habeas corpus relief in the Superior Court of Ware County, the county in which he was detained, against several governmental entities and officials, including the State of Georgia and the DeKalb County Superior Court. The appellant subsequently served upon the Superior Court of DeKalb County a “Motion to Compel Production of Documents” in connection with his habeas petition, seeking an “order” to compel all of the respondents in the habeas corpus petition to comply with his previous discovery requests. The DeKalb County Superior Court denied the request, declaring that all matters contained within the appellee’s files had been previously released to the appellant. This appeal followed.

Decided February 25, 1993.

Joe V. Hayes, pro se.

Robert E. Wilson, District Attorney, Elizabeth W. Morn, Assistant District Attorney, for appellee.

The appellant contends that the trial court erred in failing to compel all of the respondents in the habeas corpus action to comply with his discovery requests and in determining that it had provided all of the necessary documents to him for post-conviction relief. However, the appellant has attempted to directly appeal the trial court’s response to his request for discovery under OCGA § 5-6-34 (a), but the order of the DeKalb County Superior Court in response to his request for discovery was not an appealable “order” from the court in which his habeas petition was pending and from which a direct appeal may lie. There has not been an order issued from the Ware County Superior Court compelling the discovery of these materials. Further, even if the order had been from the Ware County Superior Court, the appeal would be dismissed because the appellant failed to obtain a certificate of immediate review as required by OCGA § 5-6-34 (b). As this court held in Rogers v. Dept. of Human Resources, 195 Ga. App. 118, 119 (392 SE2d 713) (1990), an order denying discovery “is premature in the absence of a certificate of immediate review.” The appellant did not comply with the requirements of OCGA § 5-6-34 and consequently, his appeal must be dismissed.

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


text:
    A92A1979.
    FUSSELL v. CARL E. JONES DEVELOPMENT COMPANY, INC. et al.
    (428 SE2d 426)
   Blackburn, Judge.

John W. Fussell brought suit against several defendants, asserting claims for fraud, negligent construction, and breach of warranty arising from his purchase of a newly constructed townhome. The trial court granted summary judgment on all claims as to one defendant and as to all defendants on the claim for breach of warranty, but denied the remaining defendants’ motion for summary judgment on the negligent construction and fraud claims. Appeal was taken from portions of this ruling, and this court affirmed in Fussell v. Jones, 198 Ga. App. 399 (401 SE2d 593) (1991). The case then proceeded to trial against the remaining defendants, and the jury rendered a verdict for the defendants. Fussell appeals from the denial of his motion for new trial.

The facts underlying appellant’s claim are set forth in Fussell v. Jones, supra. Prior to trial, the parties prepared and the court entered a consolidated pretrial order setting forth the parties’ contentions and listing the judgment forms to be used. During the trial, appellant sought to adduce evidence regarding negligent construction of the townhome and the damages he incurred as a result, but the trial court rejected this evidence, finding that prior to trial appellant had elected to pursue a fraud claim and seek rescission only.

1. In two enumerations appellant contends the trial court erred by excluding evidence of the tort of negligent construction and by refusing to allow the jury to consider an award of damages for negligent construction. He maintains the pretrial order included both claims and that the court erred by concluding that the grant of summary judgment to appellees on the breach of warranty claim precluded appellant from pursuing at trial the alternative theories of fraud and negligent construction. We agree.

(a) The trial court apparently concluded that because appellant had elected to rescind the contract and assert a claim for fraud, he could not maintain an action for negligence. With regard to his fraud claim, to the extent appellant was claiming fraud in the inducement of the contract, he was required to elect between rescinding the contract and suing for fraud and affirming the contract and claiming damages for its breach. Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883 (354 SE2d 210) (1987). However, a negligent construction claim arises not from a breach of contract claim but from breach of a duty implied by law to perform the work in accordance with industry standards. Hudgins v. Bacon, 171 Ga. App. 856, 859-860 (321 SE2d 359) (1984); Howell v. Ayers, 129 Ga. App. 899, 900 (1) (202 SE2d 189) (1973). This cause of action arises in tort and exists independently of any claim for breach of contract. Sam Finley, Inc. v. Barnes, 156 Ga. App. 802 (1) (275 SE2d 380) (1980). Thus, appellant was entitled to pursue these inconsistent remedies for the same transaction until he obtained satisfaction. See OCGA § 9-2-4; see generally UIV Corp. v. Oswald, 139 Ga. App. 697 (229 SE2d 512) (1976).

(b) Furthermore, we do not agree with appellee’s contention that appellant failed to include his claim for negligent construction in the pretrial order and thus waived his right to assert it at trial. A pretrial order, “when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b). The claims, issues, and evidence are limited by the order and the course of the action is narrowed to expedite the proceeding. If a claim or issue is omitted from the order, it is waived. Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1984). Nonetheless, “ ‘[a] pre-trial order should be liberally construed to allow the consideration of all questions fairly within the ambit of contested issues.’ ” Echols v. Bridges, 239 Ga. 25, 27 (235 SE2d 535) (1977).

Decided February 25, 1993.

Anthony Kirkland, for appellant.

S. F. Carley, for appellees.

The pretrial order does contain some inconsistencies in the statement of appellant’s case. The order provides that appellant is asserting claims for negligent construction and fraud and lists the issues for jury determination as, inter alia, “Negligence of Builder/Contractor” and “Whether or not [appellees] have perpetrated a fraud upon [appellant],” but then provides a suggested verdict form only for the fraud claim. However, considering the duty of the courts to construe the pretrial order liberally, Echols, supra, we find that the pretrial order did fairly raise the issue of negligent construction and put appellees on notice that appellant was seeking damages for this negligence. See generally Fleet Transport Co. v. Holland, 166 Ga. App. 337, 339 (3) (304 SE2d 76) (1983). Accordingly, we affirm the judgment entered on the fraud claim but reverse the trial court’s denial of appellant’s motion for new trial and remand the action for a new trial on appellant’s claim for negligent construction.

2. It follows that upon retrial of the negligent construction claim appellant is entitled, upon proper request, to have the jury charged on the proper measure of damages for negligent construction. For statements of the applicable law, see Piedmont Builders v. Fullerton, 157 Ga. App. 126 (276 SE2d 277) (1981); Four Oaks Properties v. Carusi, 156 Ga. App. 422, 423 (3) (274 SE2d 783) (1980).

3. We find no merit in appellant’s enumerations of error concerning the trial court’s failure to give his requested jury charges on expenses of litigation and attorney fees. The portions of the transcript provided to this court contain no competent evidence of attorney fees, and the pretrial order does not put appellees on notice that appellant was seeking recovery of fees and expenses under either OCGA § 13-6-11 or OCGA § 9-15-14, which were the principles of law on which appellant sought to have the jury instructed.

Judgment affirmed in part and reversed in part and case remanded with direction. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2010.
    BRUNSON v. THE STATE.
    (428 SE2d 428)
   Blackburn, Judge.

The appellant, Harold Brunson, was convicted of possession of cocaine, possession of heroin, and possession of more than one ounce of marijuana. On appeal, he contends that the trial court erred in admitting evidence of a prior similar transaction.

On September 11, 1991, while executing an arrest warrant on the appellant for simple battery, two DeKalb County deputy sheriffs observed what appeared to be cocaine and marijuana on a coffee table in the living room of the appellant’s residence. Also on the table was an open paper sack that contained marijuana. During a “protective sweep” of the house, one of the officers found a partially opened shaving kit on the floor, in which there were several blue glassine envelopes containing a mixture of heroin and cocaine. Another individual, Rudolph Jackson, was with the appellant at the time, and when he tried to hide something under the sofa, the officers looked there and found a tray on which lay a clear plastic bag and several small red bags containing marijuana. They also found a jewelry box which contained a bottle of rock cocaine, and several small blue, red, and clear envelopes containing a mixture of heroin and cocaine. Five blue glassine envelopes containing a mixture of heroin and cocaine were found in the appellant’s right trouser pocket. The officers subsequently obtained a search warrant for the appellant’s residence and its curtilage, and during the course of that search, nine red envelopes containing heroin were found under the driver’s seat in the appellant’s vehicle.

During the trial, a witness for the appellant testified that several men had lived at the appellant’s residence until the appellant’s arrest. However, he was unaware of their full names or their present whereabouts. Rudolph Jackson also testified and stated that several other men had lived at the appellant’s house. He emphasized that he had been unaware of the presence of any drugs in the premises, or of the appellant’s possession or use of any drugs.

In rebuttal, the state was allowed to produce evidence of the appellant’s prior conviction in 1986 for trafficking in heroin and possession of cocaine with intent to distribute. That evidence showed that when the appellant was stopped for a traffic offense, he admitted that he had been smoking marijuana. A subsequent search of his vehicle uncovered thirty white plastic packets, ten blue packets, and six pink packets of heroin and cocaine underneath the driver’s seat. The appellant had pleaded guilty to the charged offenses on that occasion, and was sentenced to concurrent terms of seven years imprisonment on the trafficking charge and five years imprisonment on the cocaine possession charge.

The general rule in this state is that evidence of other criminal acts by a defendant is inadmissible unless the defendant chooses to put his character in issue. Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952). However, in some circumstances, evidence of independent crimes may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Before such evidence may be admitted, the state must show that the defendant was the perpetrator of the independent crime, and that there is sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). It must also be emphasized that evidence of independent crimes is never admissible unless its relevancy to the issues on trial outweighs the prejudice it creates. Robinson v. State, 192 Ga. App. 32, 34 (383 SE2d 593) (1989).

In the instant case, the appellant concedes that he was the perpetrator of the 1986 offenses involving trafficking heroin and possession of cocaine. However, he contends that those prior offenses were not sufficiently similar to the current charges, and were too remote in time, to be admissible. During the pretrial hearing to determine the admissibility of the similar transaction evidence, the trial court was satisfied that sufficient similarity was shown by the fact that the prior offenses and the current charges involved an unusual combination of cocaine and heroin, the discovery of contraband under the driver’s seat in the appellant’s vehicle in each incident, and particularly by the color-coded packaging of the contraband. As noted by the state, the color scheme of the packaging was tantamount to a “signature,” and we agree that the evidence of the prior convictions was admissible to show the appellant’s scheme or course of conduct. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

The trial court’s primary concern about the admissibility of the evidence of the appellant’s 1986 conviction was in balancing the relevancy of the evidence with the inherent prejudice created by such evidence. In fact, out of this concern, the trial court deferred admitting the evidence until the defense rested. Because of the evidence presented by the defense regarding equal access by several other individuals who lived in the appellant’s residence at the time of the arrest, but whose identity or whereabouts are now unknown, the trial court decided that the state needed the similar transaction evidence to connect the appellant to the drugs that were found in his residence and motor vehicle. Under these circumstances, we find no error in the trial court’s determination that the relevancy of the evidence of independent crimes outweighed its prejudice.

With regard to the appellant’s contention that the prior convictions were too remote to be admissible in this case, we note that the appellant was in prison serving his sentences on those earlier convictions until February 1990. Only 19 months passed from the date of his release until his arrest for the current charges. “The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. [Cit.]” Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985). Even if the entire intervening period from the appellant’s 1986 conviction to the date of his current charges was considered, those prior offenses were not too remote for admission. Cf. Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991).

Decided February 25, 1993.

John H. Tarpley, Dwight L. Thomas, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

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


text:
    A92A2147.
    DIMARCO’S, INC. et al. v. NEIDLINGER.
    (428 SE2d 431)
   Blackburn, Judge.

Daniel Neidlinger brought suit against Dimarco’s, Inc. and its employee Harold Walter Hinton, seeking to recover damages for an alleged assault by Hinton committed in the course of his employment. The action was tried before a jury in a bifurcated proceeding pursuant to OCGA § 51-12-5.1 (c) and the jury awarded compensatory and punitive damages to Neidlinger. Defendants appeal from the denial of their motion for new trial.

The evidence adduced at trial established that appellee and his wife went to a furniture store owned and operated by appellant Dimarco’s to exchange an item they had purchased at another Dimarco’s store. Several witnesses testified that appellant Hinton, the store manager, became irate after an encounter with appellee and ordered him out of the store. When appellee refused, Hinton began kicking appellee and striking him with his fists and with a broken piece of furniture. Hinton pursued appellee out the door and into the parking lot, continuing to strike him. Appellee submitted evidence of his injuries and medical expenses. Hinton was not present at the trial and appellants presented no witnesses.

1. Appellants contend the trial court erred by denying their motion in limine and admitting, over objection, a certified copy of Hinton’s conviction for manslaughter 14 years earlier. This evidence was admissible during the punitive damages phase of the trial. Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985). Thus, the question presented on appeal is whether the trial court abused its discretion by admitting this evidence during the liability phase.

“The general character of the parties and especially their conduct in other transactions are irrelevant matters unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. “Similar acts or omissions on other and different occasions are not generally admissible to provide like acts or omissions at a different time or place. [Cit.]” Skil Corp. v. Lugsdin, 168 Ga. App. 754 (1) (309 SE2d 921) (1983). However, such testimony may be admitted if relevant to an issue in the case and if the evidence “does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise. [Cits.]” Charles Parrott & Assoc. v. Hunt, 167 Ga. App. 106, 109 (2) (305 SE2d 879) (1983). See Wright v. Dilbeck, 122 Ga. App. 214, 216-218 (4) (176 SE2d 715) (1970) (in wrongful death case arising out of train collision, evidence of prior similar incidents admissible to show railroad’s knowledge of dangerous condition).

In cases involving the intentional torts of assault and battery, evidence of prior violent or peaceable conduct by a party has been held to be admissible when relevant to an issue in the case. In Swinney v. Wright, 35 Ga. App. 45, 48 (132 SE 228) (1926), the plaintiff contended that the defendant made a violent, malicious, and unwarranted attack on him. Accordingly, the court held, “[t]he character of the defendant for violence or peaceableness was thus necessarily involved by the very nature of the action and by the character of the damages claimed. Evidence going to show the reputation of the defendant for peaceableness was therefore properly admitted ... to [throw] light upon the question of the truth or falsity of the acts complained of. . . .” Id. In a subsequent assault case, Stanley v. Willingham, 93 Ga. App. 421 (1) (91 SE2d 791) (1956), each party claimed that the other assaulted him. Citing Swinney, supra, the court held that “[i]n such circumstances the characters of both parties for peaceableness and violence were in issue and the court did not err in admitting testimony on the subject. [Cit.]” But see Security Life Ins. Co. v. Newsome, 122 Ga. App. 137, 138 (2) (176 SE2d 463) (1970) (in assault and battery action, not reversible error to exclude evidence of defendant’s prior violent behavior).

In the case at bar, appellee presented evidence that Hinton violently attacked him in an irrational and malicious manner , and without provocation. Under the reasoning of Swinney and Stanley, the trial court was authorized to admit evidence of a prior violent act as relevant to the issue of Hinton’s bent of mind, habit, and course of conduct. Accordingly, we find no abuse of the trial court’s discretion in overruling appellants’ motion in limine and admitting the evidence at issue. See generally Skil Corp., supra at 754-756 (1).

2. Appellants also enumerate as error the trial court’s denial of their motion for continuance made on the ground that Hinton was unable to attend the trial. “It is well established that all continuances, for which express provision has not been made are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion. [Cits.]” Payton v. Green, 179 Ga. App. 438, 439 (2) (346 SE2d 884) (1986). Although appellants set forth in their brief the reasons why they contend the continuance was necessary, no such evidence appears in the record. Nor does the record contain the showing required by OCGA § 9-10-154. We cannot consider facts related in the briefs that are not a part of the record, and in the absence of an affirmative showing of error on the record the trial court’s ruling will not be disturbed. Thomas v. RGL Assoc., 200 Ga. App. 283 (407 SE2d 420) (1991). Accordingly, we find no error in the denial of the motion for continuance. See Payton, supra at 439-440 (2).

Decided February 25, 1993.

B. J. Smith, for appellants.

Hughes & Gibson, Ralph E. Hughes, for appellee.

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


text:
    A92A2407.
    WILSON v. THE STATE.
    (428 SE2d 433)
   Blackburn, Judge.

David George Wilson was charged with two counts of armed robbery and one count each of aggravated assault; possession of cocaine with intent to distribute; possession of a firearm during the commission of a crime; and possession of a firearm by a convicted felon. He was convicted of aggravated assault, simple possession of cocaine, and one count of armed robbery, and acquitted of the remaining charges. He appeals from the denial of his motion for new trial.

1. Appellant first contends the evidence was insufficient to support the verdict of guilty on the charge of armed robbery. Construed to uphold the conviction, the evidence adduced at trial revealed that at about 8:00 p.m. on the night of May 13, 1991, Tracie Blankenship was working as a cashier and money counter at a DeKalb County cafeteria when a man approached her and demanded all the money in the cash drawer. Blankenship testified that the perpetrator, who smelled of alcohol and appeared intoxicated, pulled up his shirt to display what appeared to be an automatic pistol tucked in his waistband. Blankenship then backed out of her booth and went to the manager’s office about 500 feet away to report the incident. When she returned moments later, both the man and $570.95 in cash were gone. She identified appellant as the perpetrator. Another witness who had been dining in the cafeteria testified that she saw the man in question lean over the counter and pull cash from the drawer. She and another diner then followed him outside and wrote down his tag number. Neither of these witnesses saw a weapon.

A notice went out to area police officers and appellant was apprehended shortly afterwards. He had $466 in cash and seven rocks of cocaine at his arrest but had no gun on his person or in his car or apartment. The arresting officer testified that appellant was not interviewed until the next day because he was too intoxicated at the time of his arrest. In his statement, appellant admitted going into the cafeteria and demanding money but denied having a gun.

Appellant’s contention that no evidence was adduced that he was the person who took the money is not supported by the record, as the diner testified that she observed a man matching appellant’s description reach into the cash drawer and remove money. In addition, Blankenship’s testimony that appellant approached her with a gun and demanded money and that he and the money were gone when she returned moments later constitutes circumstantial evidence that appellant took the missing cash. See Welch v. State, 235 Ga. 243, 244 (219 SE2d 151) (1975).

Moreover, we reject appellant’s contention that the State did not prove a taking “from the person or the immediate presence of another” as required by OCGA § 16-8-41 (a). “One’s ‘immediate presence’ in this context stretches fairly far, and robbery convictions are usually upheld even out of the physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant.” Welch, supra at 245. “The meaning of [taking from the presence of the owner] is, not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice.” (Citation and punctuation omitted.) Id. at 246. Evidence that Blankenship was in charge of the cash drawer from which money was taken while she stepped away briefly to alert her manager was sufficient to show a taking from her “immediate presence.” See id. at 245-246; see also Sypho v. State, 175 Ga. App. 833, 834 (2) (334 SE2d 878) (1985). The evidence was sufficient to authorize the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Waters v. State, 161 Ga. App. 555 (289 SE2d 21) (1982).

2. Appellant’s contention that the trial court erred by entering a verdict of guilty on the armed robbery charge and not guilty on the firearms possession charges is without merit. As appellant concedes, the inconsistent verdict rule in criminal cases has been abolished in Georgia, Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), and adoption of appellant’s argument would require overruling the Supreme Court’s decision in Milam, which this court cannot do. Moreover, the verdicts are not necessarily inconsistent. Given that no witness to the cafeteria robbery other than Blankenship saw a gun, and considering further that she only got a brief glimpse from several feet away, the jury was authorized to conclude that appellant possessed a replica or device having the appearance of a weapon, not an operable gun. While that evidence would be sufficient to support a conviction for armed robbery, see OCGA § 16-8-41 (a), it would not be sufficient to prove violations of OCGA §§ 16-11-131 and 16-11-106.

Decided February 25, 1993.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

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


text:
    A92A1773.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. HOUSTON COUNTY.
    (428 SE2d 374)
   Johnson, Judge.

On November 27, 1989, Bernard Dale Camps was arrested and charged with theft by taking and obstruction of a law enforcement officer. That same day, while in custody at the Houston County jail, Camps was severely injured when he attempted suicide by hanging. The Houston County Sheriffs Department transported Camps to the Medical Center of Central Georgia, operated by the Macon-Bibb County Hospital Authority. Camps was admitted for treatment. During the entire time that he was hospitalized, Camps was comatose and never regained consciousness. On January 5, 1990, while Camps was still in the hospital, the State Court of Houston County, acting on the request of the county, ordered the sheriff’s department to release Camps from custody on his own recognizance. Camps’ release was ordered in an admitted attempt to reduce Houston County’s liability for Camps’ medical and hospital expenses. It is not disputed that Camps was physically incapable of leaving the hospital on his own accord following that order because he remained in a coma. Never having regained consciousness, Camps was discharged from the hospital to another institution on March 13, 1990, after incurring medical and hospital expenses of $93,302.25.

The hospital authority filed a complaint against Houston County seeking payment of the medical and hospital expenses incurred by Camps, who is now deceased. The parties filed cross-motions for summary judgment. The court entered orders denying the hospital authority’s motion for summary judgment and granting the county’s motion for summary judgment. The hospital authority appeals.

1. The hospital authority asserts that the court erred in denying its motion for summary judgment and in granting the county’s motion for summary judgment because the county is required by OCGA § 42-5-2 to pay Camps’ medical and hospital expenses. We agree and reverse the trial court’s rulings.

OCGA § 42-5-2 provides: “[I]t shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention. . . -” Houston County argues that this statute does not apply to the instant case because the legislature intended the word “inmate” to refer only to a prisoner who has been convicted of a crime and not to a pre-trial detainee such as Camps. The county’s argument is not persuasive. “Where the language of a statute is plain and susceptible of but one. natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. [Cit.]” Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107 (410 SE2d 446) (1991). The statute in this case plainly provides that a governmental unit must furnish needed medical and hospital care to an inmate in the unit’s custody. The plain language of the statute makes no distinction between an inmate who has been convicted of a crime and one who has not been convicted, and there is nothing in the statute which indicates that the legislature intended to limit the meaning of the term “inmate” to a person who has been convicted of a crime.

This court does not have the authority to impose such a limitation on the plain language of the statute. We must construe the statute in connection and in harmony with the existing law. Atlanta Journal &c. v. Sims, 200 Ga. App. 236, 237 (407 SE2d 464) (1991). The legislature has defined the term “inmate” elsewhere within Title 42 of the Code, albeit in a different chapter. “ ‘Inmate’ means a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense.” (Emphasis supplied.) OCGA § 42-4-30 (2). We must presume that the legislature did not intend the term “inmate” to have contradictory meanings within the same title of the Code. Thus we conclude that the legislature, in using the term “inmate” in OCGA § 42-5-2, meant not only a person who has been convicted of an offense, but also a person who is detained by reason of being charged with a crime. Camps, who was in custody at the Houston County jail by reason of being charged with theft by taking and obstruction of an officer, was therefore an inmate within the meaning of OCGA § 42-5-2.

2. The county also contends that it is not responsible under the statute for Camps’ medical and hospital care because his injuries were self-inflicted. This contention is without merit. The plain language of OCGA § 42-5-2, however, does not provide governmental units with such an exemption from their responsibility to provide needed medical and hospital care to inmates. This court cannot impose such a limitation on the meaning and applicability of the statute. Lunda Constr. Co., supra.

3. Houston County’s claim that it is protected against the hospital’s lawsuit by sovereign immunity is without merit. “The state [and its subdivisions are] immune to suit for any cause of action unless that immunity is expressly waived by constitutional provision or legislative enactment. [Cits.]” James v. Richmond County Health Dept., 168 Ga. App. 416 (309 SE2d 411) (1983). The county’s immunity was waived by the legislature’s enactment of OCGA § 42-5-2, and its responsibility to pay all medical and hospital expenses may not be avoided by the defense of sovereign immunity.

4. Based on our rulings in Divisions 1, 2 and 3, there are no genuine issues of material fact as to Houston County’s liability under OCGA § 42-5-2. Moreover, there are no genuine issues of material fact as to the amount of medical and hospital expenses for which the county is liable. The parties stipulated that Camps incurred reasonable and necessary medical and hospital expenses of $93,302.25 between November 27, 1989, and March 13, 1990. The county is liable for that full amount. The county’s attempt to reduce its liability by way of the court order that Camps be released from custody on January 5, 1990, when he was obviously not physically capable of being released, was an improper attempt to circumvent the county’s statutorily imposed responsibility for Camps’ care. Because there are no genuine issues of material fact, the court erred in denying the hospital’s motion for summary judgment and in granting the county’s motion for summary judgment.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Decided February 8, 1993

Reconsideration denied February 26, 1993.

Sell & Melton, John A. Draughon, for appellant.

O’Neal & Long, Michael J. Long, for appellee.

Alston & Bird, Jack S. Schroder, Jr., Richard A. Snow, amici curiae.

       The legislature has amended this Code section to further provide, “The officer in charge will provide an inmate access to medical services or hospital care and may arrange for the inmate’s health insurance carrier to pay the health care provider for the services or care rendered . . . the costs of any medical services, emergency medical and hospital care, or follow-up medical or hospital care as provided in subsection (a) of this Code section for which a local government unit is responsible shall mean the costs of such medical services and hospital care which have not been paid by the inmate’s health insurance carrier or the Department of Medical Assistance.” OCGA § 42-5-2 (b) (1), (2), effective July 1, 1992.

       The legislature recently set forth this same definition of the word “inmate” in OCGA § 42-4-70 (2), effective July 1, 1992.


text:
    A92A1850.
    SCOTT v. THE STATE.
    (428 SE2d 359)
   Pope, Chief Judge.

Defendant W. Stephen Scott appeals his conviction for driving under the influence of alcohol. In the early morning hours of December 23, 1990, defendant and a companion were traveling to a party. A roadblock was set up along their route to the party. The officer who detained defendant at the roadblock testified that a strong odor of alcohol emanated from the vehicle and the defendant’s eyes appeared red and glassy. Defendant and his companion admitted they both had an open mixed drink in the car at the time they were stopped at the roadblock, but both stated that was the first alcoholic drink either had ingested during the evening. Defendant told the officer he had been drinking and blew into the officer’s hat and took a breath test on a portable Alcosensor. Defendant was then placed under arrest for driving under the influence and transported to the sheriff’s office where another breath test was administered on an Intoximeter 3000 machine. The test results showed defendant’s blood alcohol content was .12 grams.

Defendant was originally charged by accusation by the district attorney of Putnam County. That accusation charged defendant with violating OCGA § 40-6-391 in the manner proscribed by subsection (a) (4). Defendant’s case, however, was transferred to the State Court of Putnam County and the solicitor of Putnam County issued the accusation under which defendant was tried. That accusation charged defendant with unlawfully “[operating a motor vehicle on Georgia highway while under the influence of alcohol.”

A bench trial was conducted in this case during which sufficient evidence was presented for the trial court to find defendant guilty of violating OCGA § 40-6-391 in the manner proscribed by subsection (a) (4). During defendant’s closing argument he proposed for the first time that the accusation was insufficient to charge him with a violation of OCGA § 40-6-391 in the manner proscribed by subsection (a) (4), the accusation only charged him with a violation of OCGA § 40-6-391 in the manner proscribed by subsection (a) (1), and because there was no evidence he was a less safe driver he was entitled to acquittal. The trial court agreed the evidence was insufficient to find defendant guilty of violating OCGA § 40-6-391 in the manner proscribed by subsection (a) (1), but held the accusation was sufficient to charge defendant with a violation of OCGA § 40-6-391 in the manner proscribed by subsection (a) (4) and found him guilty of violating the statute in that manner. Defendant appeals and urges us to find that the language of the accusation was sufficient to charge him only with a violation of OCGA § 40-6-391 in the manner proscribed by subsection (a) (1).

We hold the language of the accusation was sufficient to charge defendant with driving under the influence of alcohol as proscribed by both OCGA § 40-6-391 (a) (1) and (a) (4). “OCGA § 40-6-391 establishes one crime, driving under the influence, and subsections (a) (1) and (a) (4) merely set out two different methods of proving that same crime.” Kuptz v. State, 179 Ga. App. 150, 151 (4) (345 SE2d 670) (1986); see also Lester v. State, 253 Ga. 235, 238 (320 SE2d 142) (1984); Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770) (1986). “ ‘The true test of the sufficiency of an indictment [or accusation] is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offen(s)e, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment [or accusation] is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse.’ . . . [Cit.]” Broski v. State, 196 Ga. App. 116, 117 (395 SE2d 317) (1990). The accusation was sufficient to give defendant notice that the State would seek to prove the crime of driving under the influence of alcohol in either the manner set forth in OCGA § 40-6-391 (a) (1) or (a) (4).

At the time the accusation was returned against defendant, OCGA § 40-6-391 (a) (4) allowed the State to prove the crime established by the DUI statute by proving the defendant drove or was in physical control of a vehicle while the defendant’s “alcohol concentration is 0.12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.” Impaired driving ability is not an element of proof under that subsection of the statute, only the act of driving with a blood/alcohol ratio of .12 percent. Lattarulo v. State, 261 Ga. 124 (401 SE2d 516) (1991), cert. denied,_U. S__(112 SC 86, 116 LE2d 59) (1991); Lester v. State, 253 Ga. 235, 237-238 (320 SE2d 142) (1984). On the other hand, to prove a violation of OCGA § 40-6-391 in the manner proscribed by subsection (a) (1), the State must prove defendant was a less safe driver because of the influence of alcohol.

The parties do not cite and we are not familiar with any case in which we have had occasion to decide whether the failure to specify which method of proof the State intends to use to show the defendant violated OCGA § 40-6-391 (a) is a fatal defect in the accusation. Cf. Broski, 196 Ga. App. at 116 (1) (holding an accusation charging defendant with driving under the influence of alcohol by being in actual physical control of a moving vehicle while under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) was not defective because it did not contain the language “to the extent that it is less safe for the person to drive”); Kuptz, 179 Ga. App. at 150 (4) (holding an accusation couched in the disjunctive, that is, charging defendant with “driving a motor vehicle while under the influence of alcohol or drugs or driving while there was .12 percent or more by weight of alcohol in his blood, in violation of OCGA § 40-6-391 (a) (1) or (a) (4)” was not defective). However, we have had occasion to consider similar arguments in cases involving other crimes that could be committed in more than one way. Barton v. State, 79 Ga. App. 380 (53 SE2d 707) (1949); Jones v. State, 75 Ga. App. 610 (44 SE2d 174) (1947). It is well-settled that when an indictment or accusation charges a crime which is capable of being committed in more than one way, but fails to charge the manner in which the crime was committed, the indictment or accusation is subject to special demurrer because a defendant is entitled to know how the State will prove the crime charged. Barton, 79 Ga. App. at 386-387; Jones, 75 Ga. App. at 615. Such objections to accusations must be made before arraignment, however, and are deemed waived if not made at the proper time. Watson v. State, 190 Ga. App. 671, 673 (3) (379 SE2d 811) (1989). Because defendant did not challenge the accusation until closing argument, he has waived his right to object to the accusation. The evidence was sufficient for the trial court to find defendant guilty of driving under the influence in the manner proscribed by OCGA § 40-6-391 (a) (4) beyond a reasonable doubt; therefore, defendant’s conviction must be affirmed.

Decided January 25, 1993

Reconsideration denied February 26, 1993

Thomas J. Phillips, Jr., Shane M. Geeter, for appellant.

Huskins & Huskins, Donald W. Huskins, for appellee.

We take this opportunity to caution all persons charged with drawing accusations and indictments to state specifically how the State intends to prove the defendant violated OCGA § 40-6-391 in the indictment or affidavit. The defendant’s confusion in this case is understandable. Although the issue of what subsection of OCGA § 40-6-391 (a) the State was proceeding under was not an issue in these cases, in other cases in which similar language was used in the accusation or indictment, the State was proceeding under OCGA § 40-6-391 (a) (1) rather than (a) (4). See Hurd v. State, 201 Ga. App. 373 (411 SE2d 111) (1991); Hall v. State, 200 Ga. App. 585, 587 (3) (409 SE2d 221) (1991); Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989); Campbell v. State, 189 Ga. App. 303 (375 SE2d 654) (1988); and Hadden v. State, 180 Ga. App. 496 (349 SE2d 770) (1986).

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

       We note that because there are only two ways to prove a defendant was driving under the influence of alcohol contrary to the laws of the State of Georgia, the methods proscribed by OCGA § 40-6-391 (a) (1) and (a) (4), the defendant was put on notice by the accusation that the State would attempt to prove he committed the crime of driving under the influence of alcohol in either of those two ways; this is essentially the same notice the defendant received and this court approved in Kuptz.