author: Pope, Judge.

text:
    A90A0054.
    CONSOLIDATED FEDERAL CORPORATION v. CAIN et al.
    (394 SE2d 605)
   Pope, Judge.

Plaintiff/appellant Consolidated Federal Corporation and defendants/appellees Frank and Eudene Cain entered into a written agreement pursuant to the terms of which defendants were to construct a house for plaintiff on a lot located in Gwinnett County, Georgia. Defendants failed to deliver the house for the price agreed upon in the contract ($37,152) and plaintiff brought suit seeking specific performance or, in the alternative, damages for breach of contract. Defendants answered and counterclaimed, seeking damages of $59,351.91, which they contended was the amount owed to them for labor, material and services performed in connection with construction of the house, as well as attorney fees and expenses of litigation. The jury returned a verdict in favor of defendants, awarding them $57,951 compensatory damages, conditioned upon defendants conveying the property to plaintiff, and $4,226.05 in attorney fees. The appeal follows the trial court’s denial of plaintiff’s motion for j.n.o.v. or in the alternative new trial. We affirm.

1. Plaintiff first contends that the trial court erred in allowing, over objection, testimony that plaintiff’s representatives orally instructed defendants to make certain changes and modifications to the house while it was under construction. Although paragraph 7 of the building contract required all change orders to be in writing and signed by both parties to the contract, the trial court permitted defendants to present evidence that they were orally instructed by plaintiff’s representatives to make these changes, and that these changes resulted in construction costs which were substantially higher than the price specified in the contract. Plaintiff’s representatives also testified at trial, and denied that they made any oral requests for changes or modifications.

“It has long been the law of this state that the provisions of a building contract requiring a written change order before beginning work for which recovery is sought are valid and binding provisions. [Cits.] However, where the parties by a course of conduct have departed from the terms of the contract and operated without prior written change orders, there may be a waiver, or oral variation of the provisions of the contract. [Cits.] As was said in McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (66 SE 146) [(1909)]: Where a contract prescribes conditions precedent to a party’s right to set up a cause of action or defense, and the terms are reasonable, the opposite party may usually successfully plead a failure to comply with the conditions, as a reason for the court’s refusal to entertain the action or defense. But forfeiture of rights is not favored, and the courts will readily seize upon circumstances arising in the subsequent conduct or transactions of the parties and imply a waiver, in order to prevent a forfeiture because of non-compliance with formal prerequisites. [Cit.] Under the evidence here the trior of fact was authorized to find there was a waiver of the contract provisions requiring written change orders as to [the items testified to by defendants and other witnesses at trial], it follows, therefore, that [this evidence was] not inadmissible because of an absence of written change orders or an absence of agreement thereto.” (Indention and punctuation deleted.) Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 377-378 (228 SE2d 586) (1976).

2. For the reasons stated in Division 1, supra, the trial court did not err in instructing the jury that “where the parties by a course of conduct have departed from the terms of the contract and have operated without prior written change orders, there may be a waiver, or oral variation of the provisions of the contract [requiring written change orders].

Decided May 16, 1990.

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. McCune, for appellant.

Pruitt & Britt, Glyndon C. Pruitt, Walter M. Britt, for appellees.

3. We have examined plaintiff’s remaining enumerations of error and find them also to be without merit.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0234.
    ANDERSON v. THE STATE.
    (394 SE2d 607)
   Birdsong, Judge.

Mark A. Anderson was convicted of aggravated assault in an incident for which his brother, tried separately, was convicted of malice murder.

The facts generally agreed upon are these: the deceased Jerry Cowan and three friends came home from working on December 4, 1988, to find Mark Anderson, his brother Ricky, and cousin Lane Anderson all drinking beer with the deceased’s wife Patty. The deceased Mr. Cowan was not entirely pleased by these visitors’ presence and behavior and told his wife he wanted the Andersons to leave. Mr. Cowan and his friends then left, hoping the Andersons would take the hint and leave, but when he returned with his friends an hour later, he found his wife sitting on Mark’s knee. Mr. Cowan confronted his wife and knocked her off appellant’s knee. Appellant’s brother Ricky then confronted Mr. Cowan; a brief melee ensued among the visitors, after which Ricky announced he was leaving. The brothers went to their car. However, Ricky Anderson then returned to ask Cowan outside to talk; or, according to another witness’ version, Ricky resisted an attempt by Cowan’s friend to get him in his car and insisted on returning to Cowan’s house, stood face to face with Cowan and put his hands on Cowan, saying: “Come on outside, I want to talk to you. ...” Cowan did go outside and the fighting recommenced between him and Ricky Anderson.

The details of what happened next vary according to the witnesses, but it is in evidence generally that appellant Mark Anderson announced he “had to get into it” also. Appellant Mark Anderson slashed Cowan with a knife in the abdomen. Cowan stumbled back to the house porch, grabbing his stomach and saying to his wife he had been cut by Mark. At this point, Ricky Anderson shot Cowan dead with a rifle; the bullet entered the back of Cowan’s head and severed the brain stem. It is undisputed that during all this time Cowan was unarmed.

Appellant Mark Anderson complains that Jerry Cowan was the aggressor, not he; that the knife wound he inflicted on Cowan was not deadly and did not even pierce the abdominal wall; and that he had run and was 100 yards away when Ricky Anderson shot Cowan, and that he had nothing to do with Ricky Anderson’s shooting Cowan. He enumerates four specific errors below. Held:

1. Appellant contends he was entitled to a directed verdict of acquittal on the indictment counts against him for malice murder and felony murder. He argues that he was not the aggressor and that his knife wound to Cowan was not deadly and did not contribute to his death.

A directed verdict of acquittal is not authorized unless there is “no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” (Emphasis supplied.) OCGA § 17-9-1 (a). Thus, if there is any evidence upon which a guilty verdict may be supported, a criminal defendant is not entitled to a directed verdict of acquittal. Bethay v. State, 235 Ga. 371 (219 SE2d 743). The evidence in this case does not demand a finding that appellant was not at least a party to the crime of murder. See OCGA § 16-2-20.

In any case, the jury did not find appellant guilty of malice or felony murder, which equivocates to a verdict of acquittal on those counts (see Bethay), so appellant has nothing of which to complain.

2. For reasons just stated, upon the evidence, the trial court did not err in charging the jury on the principles of “party to a crime” under OCGA § 16-2-20.

3. Appellant Mark Anderson complains of the trial court’s refusal to allow him to enter evidence of the deceased’s reputation for violence, for the deceased’s shooting of a third person some 18 months previously. The trial court did not err in excluding evidence of the victim’s violent acts to persons other than the defendant, on another occasion. Bennett v. State, 254 Ga. 162 (326 SE2d 438); Harrison v. State, 251 Ga. 837 (310 SE2d 506). Such evidence is an attempt to prove the victim’s culpability in this instance by proving general bad character or by showing guilty acts in other unrelated circumstances. See Dennis v. Dennis, 227 Ga. 164 (179 SE2d 238). Such evidence does nothing to prove the issues in this case and is inadmissible and prejudicial to the cause. See OCGA § 24-2-2.

Decided May 16, 1990.

Edwards & Krontz, Kenneth W. Krontz, Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

Appellant also complains of error in the fact that concomitantly, the trial court weighed the admissibility of evidence of appellant’s reputation for violence. We see no error or harm in the method of analysis used by the trial court in excluding both the evidence of the deceased’s unrelated acts of violence and evidence of appellant’s reputation for violence. Appellant was the beneficiary of this analysis, for it kept out evidence against him that might have been admitted if he had been allowed to impugn the deceased’s character.

4. We reject out of hand appellant’s contention that he was entitled to a jury charge informing the jury that “Mark Anderson has raised the issue of self defense and presented a prima facie case that [the deceased] Jerry Cowan was the aggressor. . . .You are authorized to consider Jerry Cowan’s general reputation for violence and fighting with knives in considering Mark Anderson’s state of mind and the reasonableness of his apprehension and fear at the time of this incident.”

This requested charge misrepresents the evidence and the law. The trial court could not instruct the jury that appellant had “presented a prima facie case that [the deceased] was the aggressor,” for that question was the ultimate question for the jury. Moreover, there was no evidence admitted of deceased’s “general reputation for violence” (see Division 3); and, the evidence in this case was uncontroverted that the deceased was unarmed and appellant was the person “fighting with knives.” This suggested charge was factually misleading, incorrect as law, and the trial court would have erred in giving it.

We find no merit in this appeal.

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    A90A0343.
    AT&T TECHNOLOGIES v. BARRETT.
    (395 SE2d 22)
   Carley, Chief Judge.

In this workers’ compensation case, the Administrative Law Judge (ALJ) made an award and appellee-employee sought de novo review before the Full Board. The Full Board adopted the ALJ’s award and, on May 2, 1989, appellee filed an appeal to the superior court. Within the sixty-day period after appellee’s appeal was filed, a hearing in the superior court was neither actually held, nor scheduled, and then continued. After the sixty-day period had elapsed, appellant-employer moved for an affirmance of the award. The superior court denied appellant’s motion for affirmance and, after addressing appellee’s appeal on the merits, reversed the award. Appellant’s application to this court for a discretionary appeal from the superior court’s order was granted.

Decided May 16, 1990.

Swift, Currie, McGhee & Hiers, Mark J. Goodman, Nanne A. Van’t Reit, for appellant.

Since the award was rendered after July 1, 1988, and before July 1, 1989, the provisions of former OCGA § 34-9-105 (b) are applicable. That former statutory provision provided, in relevant part, as follows: “In the event of an appeal, the board shall, within 30 days of the filing, transmit certified copies of all documents and papers in its file together with a transcript of the testimony taken and its findings of fact and decision to the clerk of the superior court to which the case is appealable. . . . The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court; provided, however, if the court does not hear the case within 60 days from the date the appeal is filed, the decision by the board shall be considered affirmed by the court unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.” (Emphasis supplied.) Under the terms of this former statute, the burden was on appellee to insure that a timely hearing of his appeal to the superior court was either held or was scheduled, and then continued. See generally Southeastern Aluminum Recycling v. Rayburn, 251 Ga. 365 (306 SE2d 240) (1983). That burden was not met. The superior court had no discretion to address the merits of appellee’s appeal after the sixty-day period had run without a hearing either having been held or having been scheduled and then continued. “[I]f the hearing is not held and a decision rendered within the time provided in subsection (b) of this Code section, the court shall affirm the decision of the board so appealed from.” (Emphasis supplied.) Former OCGA § 34-9-105 (d). It follows that the superior court erred in reversing rather than affirming the award of the Full Board.

Judgment reversed.

Sognier and Pope, JJ., concur. McMurray, P. J., disqualified.

Marcus, Moskowitz & Associates, David H. Moskowitz, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A0444.
    WRIGHT v. FOOD GIANT, INC.
    (394 SE2d 610)
   McMurray, Presiding Judge.

Lillian Wright (plaintiff) brought an action against Food Giant, Inc. (defendant) for personal injuries she allegedly sustained when she slipped and fell in defendant’s store. Defendant answered on November 4, 1987, and, over a year later on December 27,1988, it moved for summary judgment based on an expiration of the statute of limitation. The trial court granted defendant’s motion and this appeal follows: Held:

1. Plaintiff first contends the trial court erred in finding that her action is barred by the applicable statute of limitation.

There is no dispute that plaintiff’s action accrued on July 9,1985; that the complaint was filed on June 18, 1987; and that defendant was served with process on October 8, 1987, 91 days after the expiration of the two-year statute of limitation. See OCGA § 9-3-33. “ ‘Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if “the plaintiff (shows) that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360). “A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.” Id. See also Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (3) (307 SE2d 134); Smith v. Griggs, 164 Ga. App. 15 (2) (296 SE2d 87); Early v. Orr, 135 Ga. App. 887 (219 SE2d 622). The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. Id.’ Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138).” Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792).

In the case sub judice, plaintiff does not argue that the trial court abused its discretion in finding that she was guilty of laches in serving defendant with process. She argues that defendant’s failure to assert laches as an affirmative defense in its answer constitutes a waiver of the statute of limitation defense. This contention is without merit.

An examination of the record shows that defendant properly raised the statute of limitation in its answer. This is all that is required to preserve the statute of limitation defense. OCGA § 9-11-8 (c).

Decided May 16, 1990.

Guy G. Michaud, Christopher J. McFadden, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, J. Franklin Burns, Stephanie L. Scheier, for appellee.

Next, plaintiff contends defendant waived the statute of limitation defense, arguing that defendant was guilty of laches in waiting over a year and a month to press its defense.

“[T]o prevail on a plea of laches, it is essential that the pleading party prove harm caused him by the delay. See Code Ann. § 37-119 [now OCGA § 23-1-25]; Hodges v. Libbey, 224 Ga. 509 (162 SE2d 716) (1968).” Clover Realty Co. v. J. L. Todd Auction Co., 240 Ga. 124, 126 (4) (239 SE2d 682). In the case sub judice, plaintiff argues that defendant’s delay in pressing its statute of limitation defense rendered it “difficult, if not impossible, [to ascertain] the truth as to any possible justification for Plaintiff’s delay in perfecting service.” Plaintiff also complains that defendant’s delay caused her unnecessary trouble and expense in prosecuting the lawsuit, i.e., the vigorous pursuit of discovery, an arbitration attempt and the defense of another motion for summary judgment brought by defendant.

We agree that defendant’s delay in pressing its statute of limitation claim, choosing instead to first pursue discovery, arbitration and the resolution of substantive issues on summary judgment, was costly and unnecessary. However, we find no harm which could not have been avoided by plaintiff. Plaintiff was notified, via defendant’s answer, of the statute of limitation defense less than 30 days after service was perfected. Further, the statute of limitation problem was obvious on the face of the record. Plaintiff could have either resolved the litigation or preserved evidence in defense of defendant’s statute of limitation claim, i.e., the reason for the delay in serving defendant. Under these circumstances, we find no waiver of the statute of limitation defense. The trial court did not err in granting defendant’s motion for summary judgment.

2. Plaintiff’s second enumeration is moot in light of our holding in Division 1.

Judgment affirmed.

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


text:
    A90A0614.
    THOMAS v. THE STATE.
    (394 SE2d 611)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of child molestation. Held:

In his sole enumeration, defendant contends the trial court erred in denying his motion for mistrial after the State impermissibly placed his character in issue.

During a videotaped interview of the four-year-old victim, the interviewer asked the victim whether defendant had “been in trouble before. . . ,” whereupon the following transpired:

“ ‘[THE VICTIM]: He got in jail about alcohol and drugs.
“[THE INTERVIEWER]: He got in jail about alcohol and drugs. Well, the night he did this did you see him drinking alcohol that night? What did you see him drinking?
“[THE VICTIM]: He had, he was drinking alcohol and, and, and drugs.
“[THE INTERVIEWER]: Tell me about the drugs. How do you know he was doing drugs? What did you see him do?’
“[DEFENSE COUNSEL]: Your Honor —
“ ‘[THE VICTIM]: (inaudible). He was outside with drugs.’
“THE COURT: Turn it off.
“ ‘[THE INTERVIEWER]: He was outside with drugs. How do you know that he was outside with drugs? Did you see him —’ [The video recording was stopped at the request of defense counsel]
“THE COURT: State your objection.
“[DEFENSE COUNSEL]: Your Honor, I would object to character evidence being introduced before we have introduced any evidence of character by prior crimes, mentioning drugs and being in jail for alcohol. I believe that there is grounds for a mistrial and I’d move for a mistrial at this time.
“THE COURT: What do you say to that?
“[STATE’S ATTORNEY]: Your Honor, I would say that there’s no evidence as to what the drugs are. It could be a misdemeanor and would not be putting his character into evidence. We have no evidence to the fact that he, he’s been in trouble for drugs at all. We’d ask that you would give cautionary remarks to the Jury and allow the trial to proceed.
“THE COURT: Members of the Jury, it is inappropriate and improper to ask a witness about anything concerning any prior trouble that a Defendant has been in, if any, prior to a Defendant putting his own character into evidence. Any question or statement made in your presence concerning the presentation of this tape relating to anything concerning alcohol, drugs or any prior event or trouble that the Defendant may have been in, if any, you shall disregard entirely, disabuse your minds of it entirely, give it no consideration whatsoever in reaching your verdict in this case. It should not have been asked. It should not have been shown on the tape. And it was improper and inappropriate for it to have done so.

Decided May 16, 1990.

John G. Runyan, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

“The motion is overrruled with those cautionary instructions.
“[DEFENSE COUNSEL]: Thank you, Your Honor.”
“The decision to grant or deny a mistrial is one within the sound discretion of the trial court, whose decision will not be disturbed on appeal unless there has been a manifest abuse of that discretion and a mistrial is essential to preserve a defendant’s right to a fair trial. Edge v. State, 178 Ga. App. 717 (344 SE2d 517) (1986).” Black v. State, 190 Ga. App. 137, 138 (2) (378 SE2d 342). Under the circumstances of the case sub judice, we find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial. The trial court’s curative instructions were properly aimed at removing any prejudice suffered through the introduction of inadmissible evidence. “ ‘If defendant’s counsel was not satisfied with such action by the judge, he should have renewed his motion promptly and by his failure to do so the judge was in our opinion authorized to conclude that defendant’s counsel was satisfied with the action he had taken.’ (Emphasis supplied.) Purcell v. Hill, 220 Ga. 663, 664 (141 SE2d 152).” Pritchard v. State, 225 Ga. 690, 691 (1) (171 SE2d 130).

Judgment affirmed.

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


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0604.
    POWELL v. SADLIER et al.
    (394 SE2d 614)
   McMurray, Presiding Judge.

Plaintiffs John L. Sadlier and John F. Nally brought this dispossessory proceeding against Mary Kathryn Powell, d/b/a Judy’s Seafood Bar and Grill. Defendant answered the complaint and counterclaimed seeking damages for tortious interference. In this regard, defendant alleged that she found buyers who were willing and able to purchase her restaurant business but they did not do so because plaintiffs wrongfully withheld their consent to an assignment of the lease covering the premises. Following the grant of plaintiffs’ motion for summary judgment upon the counterclaim, defendant appealed. In her sole enumeration of error, defendant asserts the trial court erred in granting plaintiffs’ motion for summary judgment upon her counterclaim. Held:

In their depositions, plaintiffs deposed they did not withhold their consent to an assignment of the lease. In this regard, they deposed they were never asked to give their consent to an assignment; that if they had been asked they would have given their consent; and that they so informed the prospective purchasers. Thus, plaintiffs effectively pierced the allegation of the complaint pertaining to the wrongful refusal to consent to an assignment of the lease.

“Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752, 753 (1) (334 SE2d 352) (1985).” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159).

Did defendant come forward with rebuttal evidence showing that plaintiffs wrongfully withheld their consent to an assignment of the lease? No, we do not find that she did. Although defendant deposed that she was unable to sell her restaurant business because plaintiffs wrongfully refused to consent to an assignment of the lease, her testimony in this regard was based solely on speculation, conjecture and inadmissible hearsay evidence.

The trial court did not err in granting plaintiffs’ motion for summary judgment upon defendant’s counterclaim.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I agree with the majority that the trial court correctly granted summary judgment in favor of appellees. I also agree with the majority that there was no evidence showing that appellees wrongfully withheld their consent to an assignment of the lease.

However, even had this remained as a genuine issue of material fact, summary judgment would nevertheless be appropriate. The lease in this case specifically provided that “[t]enant shall not, without the prior written consent [of Landlord] (which consent shall be given in the sole and absolute discretion of Landlord) . . . assign this lease or any interest hereunder. . . .” Thus, the decision to consent to a proposed assignment was in the sole discretion of appellees and appellees had no burden to show that they did not wrongfully withhold such consent. Nguyen v. Manley, 185 Ga. App. 187 (363 SE2d 613) (1987). While this Court’s opinion in Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586 (337 SE2d 29) (1985) includes a discussion of a trend in other jurisdictions of requiring reasonableness even in the absence of a lease clause so providing, the lease in Stern’s Gallery did contain such a clause, and the court in Stern’s Gallery did not adopt the “modern trend” as the law of this state. Nguyen v. Manley, supra. The trial court correctly granted summary judgment in favor of appellees.

Decided May 17, 1990.

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Stanley M. Lefco, for appellees.


author: Sognier, Judge.

text:
    A90A0191.
    LUNDY v. THE STATE.
    (394 SE2d 559)
   Sognier, Judge.

Clayton Lundy was convicted on nine counts of bribery and three counts of theft by taking for acts that occurred while he was employed as an investigator for the Floyd County District Attorney. He appeals from the judgment entered on the jury verdict.

1. Appellant contends his motion to dismiss the indictment should have been granted because as a peace officer, under OCGA § 17-7-52 he should have been accorded the rights delineated in OCGA § 45-11-4. Appellant was first certified as a peace officer in 1982 while employed by the Rome Police Department, and was authorized to act as a peace officer when he began work as an investigator for the district attorney in early 1985. Although appellant was employed as an investigator when the criminal acts at issue occurred, he was discharged from that position on June 16, 1988, and was working for an automobile dealership at the time of his indictment in October 1988.

Under OCGA § 17-7-52, “[b]efore an indictment against a peace officer charging the officer with a crime which is alleged to have occurred while he was in the performance of his duties is returned by a grand jury, the officer shall ... be afforded the rights provided in Code Section 45-11-4,” which include the right to receive a copy of the indictment before it is presented to the grand jury; to be present, with counsel, during the presentation of evidence before the grand jury; and to make a sworn statement to the jury at the close of the State’s presentation. The purpose of OCGA § 17-7-52 is “to afford to [peace] officers the same procedural protection afforded [by OCGA § 45-11-4] to other public officials as to accusations arising from the performance or non-performance of their official duties. [Cit.]” Mize v. State, 152 Ga. App. 190, 191-192 (1) (262 SE2d 492) (1979). These procedural protections have been established by the General Assembly to protect “certain government officials, who are vested with authority requiring them to exercise discretion, against possible frivolous indictments pursued by persons aggrieved by the exercise of that discretion ... [so that] their reputation and efficiency in office [are not] impaired while [they defend against] baseless charges. [Cits.]” State v. Deason, 259 Ga. 183, 184 (378 SE2d 120) (1989).

Appellant contends these procedural safeguards should have been extended to him because he was a peace officer at the time the charged acts occurred and the acts arose during his performance of his official duties. We disagree, and find this enumeration is controlled by the holding in Axson v. State, 174 Ga. App. 236 (1) (329 SE2d 566) (1985), in which this court found that a former superior court clerk who was charged with crimes arising out of the performance of his official duties and claimed entitlement to the protections of OCGA § 45-11-4 as a “state official” pursuant to OCGA § 45-15-11 (which is analogous to OCGA § 17-7-52) was not covered by OCGA § 45-11-4 because he resigned his position as clerk before the indictment was presented. Given that the purpose of the statute is to prevent officials from being distracted from the performance of their duties while they defend themselves against baseless charges, we find no merit in appellant’s argument that the protections of OCGA §§ 17-7-52; 45-11-4 should be extended to one who is charged with official misdeeds but who is no longer employed as a government official or peace officer when proceedings against him or her are commenced.

2. Appellant next challenges the trial court’s denial of his motion for a directed verdict of acquittal on the bribery charges. Evidence was adduced that on nine separate occasions appellant informed a person against whom criminal charges had been filed that the charges would be dismissed if the accused paid a certain sum to appellant for court costs. Each of these persons testified at trial to making payments by cash or check to appellant. It is undisputed that appellant was not authorized to accept payments for court costs or fines on behalf of the county; no payments for court costs were recorded in the official county records for any of the nine cases; and in each case appellant sought or obtained dismissal of the charges. Appellant contends that because each witness testified that appellant had stated the requested payments were for court costs or fees as a prerequisite for dismissing the charges, the payments were not made “with the purpose of influencing him in the performance of [his official duties]” as required by OCGA § 16-10-2 (a) (1). This argument, however, ignores the fact that appellant was charged with soliciting and receiving consideration to which he was not entitled, a violation of OCGA § 16-10-2 (a) (2). The evidence was sufficient to authorize a conviction on that charge. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 1, 1990

Rehearing denied May 18, 1990.

Danny W. Crabbe, for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Deputy Attorney General, for appellee.

3. Appellant’s contention that the theft by taking charges were not supported by the evidence because the witnesses willingly paid him money for court costs or fines is similarly without merit. The evidence established that on three occasions appellant obtained payments for what he said were court costs or fines required as a prerequisite for dismissing pending charges and gave one payor a receipt for “court costs.” Again, there is no dispute that appellant was not authorized to collect payments for court costs or fines, and no such payments were forwarded to the appropriate county officials. This evidence was sufficiént to establish commission of the crime of theft by taking, which is defined as the “[unlawful taking of] any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. Although the evidence also may have shown theft by deception under OCGA § 16-8-3, the phrase “regardless of the manner in which the property is taken or appropriated” renders the theft by taking statute sufficiently broad to encompass thefts perpetrated by deception, and thus the evidence was sufficient under the standard set forth in Jackson, supra. Cole v. State, 186 Ga. App. 243-244 (1) (366 SE2d 844) (1988).

Judgment affirmed.

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


text:
    A90A0455.
    SOLOMON v. THE STATE.
    (394 SE2d 570)
   Sognier, Judge.

Brian Solomon was convicted of arson in the first degree, and he appeals.

1. Appellant enumerates the general grounds. Appellant was convicted of setting fire to the home he shared with his wife, Robin Solomon. The evidence established that appellant and Ms. Solomon were in the process of divorcing. The couple had discussed the matter with an attorney a few weeks earlier and initial settlement documents had been drawn providing that appellant was to receive the home in the division of the couple’s property. The documents, however, did not detail the responsibilities involving the mortgage payments on the home, and Ms. Solomon and the attorney testified that she declined to sign the documents until those matters were clarified. After an argument on Friday, January 6, 1989 over appellant keeping a loaded shotgun in the master bedroom while his minor daughter (from a previous marriage) was in the house, appellant threatened Ms. Solomon with a pistol and she left the home. Ms. Solomon took with her not only clothing but also her furs, jewelry, and her Rolex watch.

On Monday, January 9, 1989, a sergeant with the Whitfield County Sheriff’s Department arrived at the home to serve appellant with Ms. Solomon’s petition for divorce and an ex parte order awarding Ms. Solomon the temporary use and possession of the home, with a hearing on the matter set for January 17th. Appellant explained he was expecting someone from the Sheriff’s Department in regard to a theft on the premises and asked the sergeant if he could return later that afternoon. The sergeant said he would not be able to do so, but would return the following morning. The sergeant testified that he asked appellant not to say anything and appellant agreed not to tell anyone about the sergeant’s delay in serving the papers so that the sergeant would not get into trouble.

Richard Joseph, appellant’s neighbor, testified he stopped by the Solomon home around 4:00 p.m. and found appellant watching television. After Joseph returned to his own home, he called appellant after 5:00 p.m. and invited him to dinner. Joseph was unable to state precisely when appellant arrived, testifying it was “right around five-thirty” but also acknowledging he had told investigators at the scene that appellant arrived between 5:30 and 6:00 p.m. Conflicting testimony was presented regarding how long appellant was at the Joseph home before Joseph’s stepson first heard the burglar alarm at the Solomon residence, the time estimates ranging from 20 to 60 minutes. The stepson stated that upon hearing the alarm, he looked, saw smoke coming out of the house, and noticed that Ms. Solomon’s car was at the back of the home. The stepson and other neighbors testified that they saw smoke streaming from the home around 6:30 p.m. The fire department was contacted, and appellant and the Josephs went to the fire scene. Testimony was presented that appellant approached his wife, asked her if he could save anything from the house, then began to accuse her of setting fire to the house. Appellant, who, according to several witnesses, was intoxicated, also accused others of setting fire to the house. One neighbor, who had never met appellant before the fire, described appellant’s behavior as “unconcerned.” Others testified appellant appeared “upset.” Appellant later scuffled with firefighters who prevented him from entering the house to recover his belongings.

Robert Cochran, a neighbor, testified that Ms. Solomon came to his house and told him her home was on fire. He described her as “act[ing] a little anxious”; his stepdaughter said Ms. Solomon appeared “[r]eal nervous and scared.” Cochran went to the house, but when he realized his fire extinguisher would not avail the situation, he got Ms. Solomon’s car keys and moved her car out of the driveway. Cochran testified that Ms. Solomon’s car was filled with clothing and boxes.

Evidence established that the house was reasonably insured for its value and the value of the personal belongings inside, and that appellant was under no financial difficulties. Fire investigators testified that the remains of electronic equipment and other valuables were found in place in the home and there was no evidence that any of appellant’s personal belongings had been removed from the residence prior to the fire.

Ms. Solomon testified that after she left the home on Friday, January 6th, she stayed with Dena and John Bush and called appellant twice over the weekend. She stated appellant asked her to return home, which she declined to do. On Monday, January 9th, she met with her attorney and obtained the court order. She then went to the boutique she co-owned. She telephoned appellant three times that day but made no mention of the order she had obtained. However, Ms. Solomon testified that appellant’s reference in a 5:30 p.m. telephone call to the attorney she had retained indicated to her that appellant knew, without her telling him, about the divorce pleadings. Appellant informed her that he was not going to leave the home but that she could return .to get more clothing. Ms. Solomon testified appellant called again at 5:45 p.m. to ascertain she would come to the home at 6:00 p.m. Ms. Solomon stated she worked until 5:55 p.m., then drove to a convenience store for groceries, after which she retrieved her clothing from the Bushes’ home. She stated she arrived at her home at 6:25 p.m. and noticed smoke coming out of the house. After stopping at the mailbox she drove to the back of the home, but when she opened the kitchen door, black smoke came out, so she went to the Cochrans’ home to contact the fire department. She testified that when appellant arrived on the scene, his first words to her were “what have you done?”

John and Dena Bush testified that Ms. Solomon arrived at their condominium around or just after 6:00 p.m. and spent two or three minutes to get “what little clothes she had” before departing. Carolyn Davis, a neighbor, testified that when she returned to her home around 6:25 p.m. she saw none of her neighbors driving into the neighborhood then, but that she saw Ms. Solomon’s car stopped at the mailbox to the Solomon home at that time.

The State presented extensive testimony by several experts detailing why in their opinion the fire was incendiary in nature and the reasons for their determination that it was caused by an accelerant. One expert, Claude Nix, opined that based on the damage the fire had done in the den (where it had originated), the fire could have been burning “twenty to thirty minutes or more” at 6:52 p.m., the time the fire department first poured water on the fire. Given the 30-minute figure on cross-examination, Nix acknowledged the fire could have been set as late as 6:22 p.m.

“In an arson case, the corpus delicti consists] in the proof of three fundamental facts: first, a burning; second, that a criminal agency was the cause of the burning; and, third, that the defendant was the criminal agency. [Cit.]” Cook v. State, 146 Ga. App. 353, 354 (246 SE2d 347) (1978); see also Parker v. State, 181 Ga. App. 590 (1) (353 SE2d 83) (1987). In the case sub judice, the first element is uncontroverted, and the evidence as to the second element, while contested at trial, was sufficient to enable a jury to determine beyond a reasonable doubt that the fire in the Solomon residence was not the result of accident. The third element, that appellant was the criminal agency, is not so easy of accommodation. The evidence here reveals the acrimonious dissolution of the marriage between appellant and Ms. Solomon. Both had motive: the home they had shared was insured for over $180,000. The evidence is uncontroverted that appellant’s personal possessions were destroyed in the fire; it is likewise uncontroverted that Ms. Solomon’s valuable personal possessions had been removed days prior to the fire. Although appellant had received notification the morning of the fire that he was required to vacate the premises, the evidence indicates the couple intended for appellant to keep the home after the divorce, and Ms. Solomon acknowledged that the court order she obtained had granted her only temporary possession of the home. Both appellant and Ms. Solomon had access to the home; both had the opportunity to be on the premises prior to 6:22 p.m. Contrary to the State’s argument, the testimony of Davis that she saw Ms. Solomon at the mailbox around 6:30 p.m. does not exclude Ms. Solomon from any suspicion of setting the fire, in that while Davis’ testimony is consistent with Ms. Solomon’s testimony regarding her activities at 6:30 p.m., Davis did not see Ms. Solomon drive into the neighborhood and could not testify how long Ms. Solomon had been at the home when Davis first noticed her.

“ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis of guilt, save that of the guilt of the accused. [OCGA § 24-4-6.] As the State correctly asserts in its brief, the question of whether every other reasonable hypothesis has been excluded is generally a question for the jury. On the other hand, the trial court is authorized, as usual, to take the case from the jury and direct a verdict of acquittal if the State clearly fails to meet its burden. Should a trial court decline to direct the verdict and the jury then finds the defendant guilty, we are obliged to review the evidence in a light most favorable to the jury verdict. However, we will not be blinded by the jury verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof.’ . . . [Cit.]” Dawson v. State, 183 Ga. App. 94, 96-97 (2) (357 SE2d 891) (1987). “The evidence relied upon by the State to connect [appellant] to the crime was consistent with [appellant’s] guilt, but being entirely circumstantial, we cannot ignore the appropriate rule pertaining to circumstantial evidence ([cit.]) nor can we agree that the evidence was inconsistent with any theory other than that the appellant deliberately caused the burning. It follows that the evidence, as a matter of law, did not, as a whole, establish guilt beyond a reasonable doubt. [Cit.] At best, the evidence in this case raises a suspicion against [appellant], but we do not think it connects [him] with the crime beyond a reasonable doubt. [Cits.]” Cook, supra at 354-355 (1).

Decided May 3, 1990

Rehearing denied May 18, 1990

William W. Keith III, Stephen A. Williams, for appellant.

Jack O. Partain III, District Attorney, David T. Blackburn, Assistant District Attorney, for appellee.

2. In view of our disposition of the enumeration of error based on the general grounds, we need not adjudicate the remaining enumeration.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A90A0552.
    SOUTH GEORGIA PECAN COMPANY v. ALIMENTA PROCESSING CORPORATION.
    (394 SE2d 545)
   Deen, Presiding Judge.

This case made a prior appearance in this court as Alimenta Processing Corp. v. South Georgia Pecan Co., 185 Ga. App. 330 (364 SE2d 84) (1987), and the facts are set forth therein. In Alimenta, this court reversed the grant of summary judgment to South Georgia Pecan Company (SGP), holding that there were issues of fact to be resolved, particularly as to the insurance coverage for the loss. After a jury trial, a verdict in the amount of $217,000 was returned in favor of Alimenta. SGP’s motions for a judgment n.o.v. and a new trial were denied, and it appeals.

1. SGP claims that Alimenta intended to be protected only by its own insurance because SGP’s insurance did not include coverage against Alimenta’s loss. Appellant claims that the opinion in the prior appeal left three fact issues to be resolved: (1) whether Alimenta’s insurance covered the loss; (2) whether SGP’s warehouse legal liability insurance covered the loss; and (3) how the risk of loss was to be allocated between Alimenta’s and SGP’s two insurance policies.

Alimenta does not deny that its “all perils” policy covered the loss or that it recovered 50 percent of its claim from its insurance carrier. SGP claims that the entire loss was covered by the policy. The extent of Alimenta’s insurance coverage, however, is relevant only if the parties intended Alimenta to look exclusively to its own policy in the event of a loss. The jury verdict indicates that this and the other two issues were resolved adversely to SGP. In our prior opinion this court held: “[I]f the ‘warehouse legal liability insurance’ provided by [SGP] covers damage to [Alimenta’s] property, it may be looked to by [Alimenta] even if it was the intent of the parties to look solely to insurance. . . . This issue may perhaps be resolved by looking at the policy actually purchased by [SGP].” Id. at 332. That policy covers “liability imposed upon [SGP] as a warehouseman or bailee, for loss or destruction of or damage to personal property of others contained in the premises. ...” As this court noted in the prior opinion at 332, paragraph 7 requires SGP “to provide and maintain both ‘general liability insurance and a warehouse legal liability insurance policy in form and substance acceptable to [Alimenta]. . . .’” SGP, however, argues that the lease was modified after its execution, when SGP began sending Alimenta preprinted receipts which contained language that contradicted the lease on risk allocation. The only trial testimony on this subject shows that the purpose of the receipts was to account for the quantity of peanuts stored, and for Alimenta to use in obtaining bank loans requiring the stored peanuts as security. There was no evidence that the receipts were used to modify the terms of the lease.

The trial court correctly submitted the issues relating to allocation of the risk under the lease provisions to the jury, and the jury’s verdict is consistent with the evidence.

2. For the reasons set forth in Division 1, above, it was not error for the trial court to admit SGP’s liability insurance policy into evidence.

3. The trial court did not err in charging the jury, on bailment and negligent performance of contract.

OCGA § 44-12-40 defines a bailment as “[A] delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.” SGP’s argument that the existence of the lease negates the existence of a bailment relationship is without merit. The entrustment of goods to a warehouseman pursuant to a contract creates a bailment. Millender v. Looper, 82 Ga. App. 563, 568 (61 SE2d 573) (1950). The creation of the bailment imposed on SGP the duty “to exercise care and diligence to protect the thing bailed and to keep it safe. Different degrees of diligence are required according to the notice of the bailments.” OCGA § 44-12-43. The bailor may proceed in either tort or contract when the bailee violates that duty. A.A.A. Parking v. Bigger, 113 Ga. App. 578, 581 (149 SE2d 255) (1966). Alimenta was entitled to a presumption that the bailee was negligent upon its showing of damage to its peanuts while in SGP’s possession. United States Sec. Warehouse v. Brooks, 115 Ga. App. 834 (156 SE2d 217) (1967). The burden then shifted to the bailee to show due diligence. OCGA § 44-12-44. The evidence showed that SGP failed to use reasonable means to keep its warehouse free from the entry of excessive water and failed to exercise due diligence in discovering the presence of the water. Other evidence showed that appellant selected and purchased shingles unsuitable for a warehouse roof, improperly maintained the louvers on the gable ends of the warehouse, never inspected the attic space, and waited 10 days after the water penetrated the roof and louvers to advise Alimenta that its peanuts had been exposed to water. The release from damages that SGP claims was contained in the lease does not exist. The release extends only to “damages . . . due to external causes (other than . . . failure to maintain the . . . humidity levels specified herein).” We find no error in charging the jury on bailment.

As to the jury charge on negligent performance of contract, we note that the pleadings did not set forth that issue and the copy of a pretrial order included in the record on appeal did not set forth that theory. We further note, however, that the pretrial order was never filed with the court, as it bears no indication that it was filed.

Evidence on the issue of negligent performance of contract was received without objection. “ ‘[T]he parties may, by express consent, or by the introduction of evidence without objection, amend the pleadings at will. . . . [I]ssues tried by express or implied consent shall be treated as if raised by the pleadings.’ ” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978). We also note that the court charged the jury that negligent performance of a contract may be a tort and further expanded upon this legal theory in its charge. Alimenta pleaded both breach of contract and, in the alternative, tort as its theory of recovery. As there was evidence of negligent performance of the contract, it was not error for the court to so charge the jury.

4. In its final enumeration of error SGP contends that the jury verdict was not authorized by the evidence. In its pleadings Alimenta sought $245,156.63 in damages. The verdict was within the range of the evidence presented at trial as to the extent of Alimenta’s loss.

Decided April 19, 1990

Rehearing denied May 18, 1990

Blackburn, Bright & Edwards, J. Converse Bright, Tillman, McTier, Coleman, Talley & Newbern, Wade H. Coleman, for appellant.

Barham, Elliott, Bennett & Miller, W. G. Elliott, Hansell & Post, Donald A. Loft, Gary W. Hatch, Jones, Day, Reavis & Pogue, Trammel Newton for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0370.
    HUFF v. E. L. DAVIS CONTRACTING COMPANY, INC. et al.
    (394 SE2d 615)
   Pope, Judge.

Plaintiff Richard Huff’s complaint was filed in December of 1984. On April 24, 1989, the trial court granted defendant Reliance Insurance Company’s motion to compel and ordered plaintiff to serve complete responses to defendant’s interrogatories and to pay attorney fees and court reporter expenses for failure to attend a noticed deposition. The trial court also ordered the plaintiff to appear for deposition by defendants on May 19. The date for deposition was changed by consent of the parties to May 23. Plaintiff failed to comply with the trial court’s order by failing to serve complete responses to interrogatories, to pay attorney fees and costs as ordered by the court and to appear for deposition. After a hearing on June 13, 1989, the trial court issued an order finding plaintiff had wilfully failed to comply with its earlier order and dismissing plaintiff’s complaint with prejudice. Plaintiff appeals.

The trial court may dismiss an action for a party’s failure to obey an order compelling discovery. OCGA § 9-11-37 (b) (2) (C). The trial court may dismiss a complaint for the plaintiff’s failure to comply with an order to respond to discovery requests (see Ross v. White, 175 Ga. App. 791 (334 SE2d 371) (1985)), for the plaintiff’s failure to attend a deposition as ordered by the court (see McCane v. Cappett Corp., 151 Ga. App. 423 (2) (260 SE2d 379) (1979)) or for the plaintiff’s failure to comply with an order to pay attorney fees and expenses to the opposing party (see Peoples v. Yu, 184 Ga. App. 252 (361 SE2d 244) (1987)). In this case the plaintiff failed in each of these three ways to comply with the trial court’s earlier order compelling discovery and the payment of fees and costs.

Decided May 18, 1990.

Richard A. Coleman, for appellant.

Phillips, Hinchey & Reid, Stephen G. Lowe, David F. Dickinson, Marva Jones Brooks, for appellees.

Plaintiff challenges the trial court’s finding of wilful failure to respond to discovery. However, no explanation appears in the record why plaintiff missed the second deposition date. Only in the brief before this court does plaintiff assert that his failure was unavoidable and not wilful because he was detained by an automobile accident on his way to the deposition. “The burden of showing harmful error is on the appellant, and this must be done by the record; it may not be done in an enumeration of error or by assertions appearing only in a brief.” (Citation and punctuation omitted.) McCane v. Cappett Corp., supra at 423 (1). Where there is nothing in the record to show plaintiff was unaware of the order requiring him to attend a deposition or that he made a good faith effort to comply with the order then the trial court is authorized to find the failure to attend was wilful. Id. Because we find no abuse of the broad discretion granted to the trial court by OCGA § 9-11-37 (b) (2) (C), we will not interfere with the trial court’s exercise of that discretion. See Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 707 (353 SE2d 548) (1987); Tompkins v. McMickle, 172 Ga. App. 62 (2) (321 SE2d 797) (1984).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0524.
    ASSAD v. THE STATE.
    (394 SE2d 617)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of three counts of child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant filed a timely pre-trial motion pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). On the third day of trial, appellant moved for a mistrial predicated upon the State’s alleged suppression of exculpatory evidence in violation of his Brady motion. The evidence at issue was a physician’s report finding no physical evidence of abuse or molestation after an examination of one of the victims. The trial court’s denial of appellant’s motion for a mistrial is enumerated as error.

The indictments alleged appellant’s commission of molestation by fondling the victims, not by penetration. Accordingly, the physician’s conclusion that there was no physical evidence of abuse was neither exculpatory nor “material.” See Glenn v. State, 255 Ga. 533, 535 (2) (340 SE2d 609) (1986); Ballard v. State, 252 Ga. 53, 55 (3) (311 SE2d 453) (1984). Moreover, the mandate of Brady is not violated when the “material is [made] available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. [Cits.]” Glenn v. State, supra at 534 (2). In the instant case, the trial court offered to allow the State’s witnesses to be recalled for further cross-examination in light of the report, and also offered appellant a continuance in order to interview the physician who had examined the child. This offer was declined. There being no “manifest necessity” for a mistrial so as to keep the existing proceedings fundamentally fair, the trial court did not err in denying appellant’s motion. Haynes v. State, 245 Ga. 817 (268 SE2d 325) (1980).

Decided May 18, 1990.

Thomas J. Ousley, for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Desiree L. Sutton, Assistant District Attorneys, for appellee.

2. Over appellant’s hearsay objection, an investigating officer was permitted to testify as to a statement by one victim to the effect that she saw appellant molest the other victim. Clearly, the officer’s testimony as to what one of the victims said she saw appellant do to the other victim is hearsay and is inadmissible. OCGA § 24-3-1. Contrary to the State’s contentions, this testimony would not be admissible as original evidence under OCGA § 24-3-2, since the officer’s conduct and motives were not at issue. Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342) (1989). Likewise, this testimony would not be admissible under OCGA § 24-3-16, the Child Hearsay Statute. By its terms, that statute relates only to such statements as are made by the actual victim of the event being related. Holden v. State, 187 Ga. App. 597, 598 (2) (370 SE2d 847) (1988). Accordingly, the trial court erred in permitting the officer to testify as to what the one victim said that she saw done to the other. However, as the record shows that this testimony was merely cumulative of the testimony of the actual victim herself, the error was harmless. Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).

Judgments affirmed.

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


text:
    A90A0576, A90A0577.
    HARBIN ENTERPRISES, INC. et al. v. SYSCO CORPORATION (two cases).
    (394 SE2d 618)
   McMurray, Presiding Judge.

Sysco Corporation (plaintiff) instituted an action against Harbin Enterprises, Inc. and Michael V. Harbin (defendants) in the State Court of Fulton County to recover sums allegedly due on an open account. In a second count, plaintiff alleged that defendants fraudulently induced plaintiff to extend defendants’ credit by giving false statements with regard to their intention to pay. Plaintiff alleged that the corporate defendant “is a Florida corporation subject to the jurisdiction of the State Court of Fulton County by virtue of signing an account application with the Plaintiff consenting to the jurisdiction of the State Court of Fulton County, Atlanta, Georgia.” Plaintiff alleged that defendant Harbin “is a resident of Florida but is subject to the jurisdiction of [the State Court of Fulton County] by virtue of his execution of the above-referenced account application and by virtue of being guarantor of this corporate indebtedness.” Defendants denied the material allegations of the complaint and raised various defenses, including lack of personal jurisdiction.

Plaintiff moved for partial summary judgment against defendant Harbin Enterprises, Inc., as to Count 1. Defendants moved to dismiss the complaint based on improper venue and lack of personal jurisdiction. On September 8, 1989, the trial court entered an order granting plaintiff’s motion for partial summary judgment and denying defendants’ motion to dismiss for improper venue and lack of personal jurisdiction. On October 6, 1989, defendants filed a notice of appeal. The case was subsequently docketed as Court of Appeals Case No. A90A0576.

On October 6, 1989, the trial court entered a “JUDGMENT” which provided as follows: “On September [8], 1989, this Court entered an Order granting Plaintiff’s Motion for Partial Summary Judgment as to Count I of Plaintiff’s complaint. . . . The Order did not, however, contain the requisite language of O.C.G.A. Section 9-11-54 (b).

“Accordingly, having determined that there is no just reason for delaying the entry of final judgment, IT IS HEREBY ORDERED that judgment be entered and that the Clerk issue instanter a fi. fa.

“The Court further supplements its Order of September [8], 1989 by making part of its final judgment the granting to Plaintiff of appropriate pre-judgment interest, post-judgment interest at the legal rate, and attorney’s fees in the amount of $71,405.12 pursuant to O.C.G.A. Section 13-1-11 (a) (3).”

On November 3, 1989, defendants filed a notice of appeal from the “JUDGMENT” and the case was subsequently docketed as Court of Appeals Case No. A90A0577. Defendants rely on the same enumeration of errors and brief in both Case No. A90A0576 and Case No. A90A0577. Held:

1. The corporate defendant first contends “[t]he Trial Court erred in granting Plaintiff’s Motion for Partial Summary Judgment and entering a final judgment thereon since venue was improper and there was no personal jurisdiction. . . .”

“Under the Civil Practice Act a defense of . . . improper venue may be waived by a failure to raise [the issue] by a motion to dismiss or in a responsive pleading, as originally filed. OCGA § 9-11-12 (h) (1) (former Code Ann. § 81A-112 (h) (1)); Whitby v. Maloy, 145 Ga. App. 785 (2) (245 SE2d 5) (1978).” Hornsby v. Hancock, 165 Ga. App. 543 (301 SE2d 900). In the case sub judice, the corporate defendant did not raise the defense of improper venue in its responsive pleading or in a motion to dismiss, as originally filed. It thus appears that the defense of improper venue was waived. Notwithstanding, there remains the issue of whether the trial court properly exercised personal jurisdiction over the corporate defendant.

“It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. Lanning v. Lanning, 245 Ga. 19, 262 SE2d 788 (1980); Kuller v. Beard Properties, Inc., 157 Ga. App. 57, 276 SE2d 111, 113 (1981); Slaughter v. Faust, 155 Ga. App. 68, 270 SE2d 218, 220 (1980). The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, [456] U. S. [694], 102 S.Ct. 2099, 2105, 72 LE2d 492, 502 (1982). Advance consent to the jurisdiction of a particular court in a contract is one such arrangement. See National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 316, 84 S.Ct. 411, 414, 11 LE2d 354 (1964); Rauch v. Day & Night Manufacturing Corp., 576 F2d 697, 700 (6th Cir. 1978); Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338, 1340 (D.S.D. 1975).” National Svc. Indus. v. Vafla Corp., 694 F2d 246, 248-249 (11th Cir. 1982).

In the case sub judice, the corporate defendant agreed “that any litigation involving [the] agreement [for an open account], or any sales made by [plaintiff] to the [corporate defendant], shall be litigated in the State Court of Fulton County, Atlanta, Georgia, and all parties hereby waive any defenses of jurisdiction which may now exist or exist hereafter.” We find this waiver sufficient to subject the corporate defendant to the personal jurisdiction of the State Court of Fulton County, Georgia. It therefore follows that the trial court did not err in granting plaintiff’s motion for partial summary judgment.

2. Next, defendants contend “[t]he Trial Court erred in failing to grant [their] Motion to Dismiss for lack of jurisdiction and venue . . . ."

Decided May 18, 1990.

Patter & Starkey, Jack Patter, for appellants.

Lamb & Associates, T. Gordon Lamb, Andrew R. Bickwit, for appellee.

This contention is without merit as to the corporate defendant for the reasons stated in Division 1. However, we find no indication that defendant Harbin consented to suit in the State Court of Fulton County, Georgia. (The record indicates that he executed the agreement for an open account solely in his capacity as corporate president.) Consequently, since waiver and consent is the only basis asserted for personal jurisdiction over defendant Harbin, the trial court erred in failing to grant defendant Harbin’s motion to dismiss for lack of jurisdiction.

Judgment affirmed in part and reversed in part.

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


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A0814.
    FRANKLIN v. THE STATE.
    (394 SE2d 621)
   Deen, Presiding Judge.

Bobby Lee Franklin was convicted of four counts of child molestation. The evidence showed that Franklin lived with his grandmother and an uncle. When the uncle’s eight-year-old daughter came to visit him last summer, the child stayed in the grandmother’s mobile home and frequently played with her eight-year-old cousin who lived nearby. During the child’s most recent summer visit, the eighteen-year-old defendant was alleged to have kissed the little girls, fondled them, and attempted to have sexual intercourse with them, have them place their mouths on his penis, place his mouth on the vagina of one of the girls and place his finger in it. He threatened both girls with a pistol to prevent them from telling anyone about his activities. When the first child returned to her home in Macon, she reported the incidents to her other grandmother and was taken to the doctor. She also told a caseworker for the Department of Family and Children Services (DFCS) that Franklin’s acts caused the other child to bleed, that she got her leg and pants bloody, and that the child asked her mother for a maxi pad. The second child told the DFCS caseworker that Franklin had fondled and kissed her, and she told the same story to a doctor who examined her. At trial the child denied that Franklin had done anything to her and stated that she had told those stories because she was scared, and that no one was forcing her to change her story. She did, however, testify as to witnessing the defendant fondling and kissing the other child.

1. Franklin first complains of the failure of the trial judge to determine whether the DFCS caseworker had such learning and experience in her profession as to testify as an expert. The transcript shows that the State questioned her as to her background, training, and knowledge of child sexual abuse. At no time during her testimony was an objection raised by the defendant. Issues not raised in the lower court will not be considered for the first time on appeal. Brown v. State, 191 Ga. App. 357 (381 SE2d 543) (1989); Barker v. State, 191 Ga. App. 451 (382 SE2d 115) (1989).

2. Franklin claims that the judgment should be reversed as to those counts of the indictment pertaining to the molestation of the child who recanted her story at trial because the only evidence of molestation was inadmissible hearsay (the testimony of the DFCS’s caseworker and the doctor’s report, which stated that the child reported fondling of her “private areas” and “kissing”).

As the doctor’s letter was introduced into evidence without objection, we will not consider an objection to it which is raised for the first time on appeal for the same reasons set forth in Division 1, above. Under OCGA § 24-3-16, a statement made by a child under the age of 14 describing acts of sexual conduct is admissible by the person to whom the report is made if the child is available to testify at trial and if the court finds that the circumstances of the statement provide sufficient indicia of reliability. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). The DFCS caseworker testified as to the child’s statement to her and her own familiarity with the child molestation syndrome. She testified that one of the five phases of the syndrome was retraction, or denial, that the molestation had occurred. There was direct testimony by the first child that she witnessed the defendant molesting her cousin and that her cousin punched her in the eye for reporting it. The child’s testimony at trial went to her credibility, and her prior inconsistent statement was admissible as direct evidence under OCGA § 24-3-16.

3. Franklin also asserts that the State failed to prove each element of the crime in that Count I of the indictment alleged that he committed criminal attempt to commit rape in that he “did attempt to penetrate the vagina of . . . forcibly and against her will,” and there was no evidence of force shown. He argues that although the court gave the jury the option of finding him guilty of the lesser included offense of child molestation, the element of force must still be shown. He also asserts this same argument as to Count III, fondling the breasts and inserting his finger in this same child’s vagina.

OCGA § 16-4-1 — Criminal attempt — requires only criminal intent and that some “substantial step” be taken toward the commission of the intended crime. We find no authority to support the position that the “substantial step” must be the use of force. (See Wittschen v. State, 189 Ga. App. 828 (377 SE2d 681) (1989), for the elements of attempt.) Franklin was not convicted of attempted rape, but rather the lesser included offense of child molestation. Under OCGA § 16-6-4, “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The DFCS caseworker’s testimony that the child described incidents of fondling her vagina was admissible for the reasons set forth in Division 2, above, and we find no fatal variance between the allegata and probata in the indictment. See Roberson v. State, 187 Ga. App. 485 (370 SE2d 661) (1988).

4. The trial court did not err in failing to give the defendant’s second request to charge: “If the State desires to convict a defendant of attempted rape, even though the victim is under 14 years of age, it must prove the element of force by acts of force.” The cases relied upon by the defendant are all forcible rape cases, and none refers to the term “attempted rape” in the discussions of force. This issue is also moot because appellant was found guilty of the lesser included offense, and force is not an element of child molestation. See Division 3, above.

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Pope, Judge,

concurring specially.

In regard to Division 4 of the opinion I agree that any error in denying the requested charge on attempted rape is moot because defendant was not found guilty of attempted rape. Moreover, I would note that the charge requested by defendant on attempted rape was a misstatement of the law and was therefore properly denied. Defendant was charged not with rape but with criminal attempt, for which it must only be shown that he had taken a “substantial step toward the commission of [rape].” OCGA § 16-4-1. Because force is simply one element of rape, I see no reason why the use of force must be shown to support a finding of attempted rape so long as the evidence shows defendant took some other “substantial step” toward committing rape.

In this case the indictment for attempted rape alleged, in particular, that defendant “did attempt to penetrate the vagina [of the minor child] forcibly and against her will.” Thus, defendant could have requested a charge stating that in order to be found guilty as charged, the allegation of force must have been proven. However, the instruction requested did not appropriately address the specific allegations in the indictment but, instead, set forth a mistatement of the law.

Decided May 18, 1990.

Neil A. Smith, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

I am authorized to state that Judge Beasley joins in this special concurrence.


text:
    A90A1048.
    BAXLEY v. MOODY et al.
    (394 SE2d 623)
   Deen, Presiding Judge.

Under the will of her late husband, Mattie Lee Baxley was left a life estate in a tract of land in Appling County, a portion of which was condemned by the Georgia Department of Transportation. The DOT paid $31,590 into the court registry as compensation; Baxley as life tenant and the appellees as remaindermen to the estate agreed to use $1,250 of that fund to purchase a new well, pump, and pumphouse, but otherwise contested each other’s present entitlement to the money. Baxley sought to be allowed to post a bond, hold the principal for the benefit of the remaindermen, and receive the interest therefrom during her lifetime. The superior court, however, relying upon Hirsch v. Hirsch, 216 Ga. 379 (116 SE2d 611) (1960), ordered disbursement of the money to the remaindermen, and this appeal followed. Held:

“There is no question but that the holder of a life estate, as well as the remainderman, is entitled to compensation when his property is taken for public use. . . .” 27 AmJur2d, Eminent Domain, § 251. See Charleston & Western Carolina Railway Co. v. Hughes, 105 Ga. 1 (4) (30 SE 972) (1898). “According to the predominate [sic] view, where property is condemned and the question is raised as to whether the award should be distributed between a life tenant and remainder-men, the award stands in the place of the realty and must be maintained as a whole, with the life tenant receiving the income and the corpus being reserved for ultimate distribution to the remaindermen.” 27 AmJur2d, Eminent Domain, § 252. The minority view apportions a condemnation award “by determining the present value of the separate interests and making awards to the parties according to such valuation.” Id.

We approve of the predominant view. Hirsch v. Hirsch, supra, concerned whether under the will being construed by the court, profits arising from a sale of capital assets of an estate became part of the corpus of the estate rather than income of the estate. Insofar as Hirsch involved the construction of a will and a voluntary sale, and not a condemnation, that case is inapposite. Baxley was prepared to comply with the general requirement of providing security where the corpus of the life estate is money, see Barmore v. Gilbert, 151 Ga. 260, 266 (106 SE 269) (1921), and the superior court thus erred in ordering distribution of the money to the appellee-remaindermen.

Decided May 18, 1990.

Arnold & Barlow, W. Lonnie Barlow, for appellee.

W. Terry Turner, for appellees.

Judgment reversed.

Pope and Beasley, JJ., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A1071.
    DUNLAP v. THE STATE.
    (394 SE2d 626)
   Deen, Presiding Judge.

The appellant, Jack Dunlap, was convicted of aggravated child molestation. On appeal, his sole contention is that the trial court erred in refusing to admit into evidence the results of two polygraph examinations he submitted to during the investigation of the case.

On June 29, 1988, and on July 5, 1988, Dunlap submitted to polygraph examinations administered by the Georgia Bureau of Investigation, the first of which was inconclusive and the second of which indicated that Dunlap was not being deceptive. It is undisputed that Dunlap was advised of his right to have counsel present, that Dunlap declined that right, and that there was no stipulation of admissibility by the parties. It has been stated and reiterated that “[u]nder the law as it now exists in this State, results of polygraph tests are admissible only upon the express stipulation of the parties.” Sustakovitch v. State, 249 Ga. 273, 275 (290 SE2d 77) (1982); State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). Accordingly, the trial court did not err in excluding the polygraph results in this case.

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur but wish to point out that the issue is whether there is an exception to the Supreme Court-fashioned rule that “upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977).

Defendant urges that he should be allowed to offer the polygraph test results, even absent a stipulation; when he consented to undergo such a test at the State’s request without being advised in advance that the results could not be used at trial unless the State agreed to their admissibility. His theory is that such would enhance the search for the truth, especially in his circumstances where a child’s testimony is contradicted by his own and that of the child’s mother, his girl friend. It is argued that inadmissibility of results favorable to him, which would serve the corroborative purpose recognized in Chambers, contravenes fundamental fairness in allowing him a fair opportunity to present his defense. See in this regard Sisson v. State, 181 Ga. App. 784 (353 SE2d 836) (1987), another child molestation case.

Decided May 18, 1990.

Tyron C. Elliott, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

Neither the Supreme Court nor the legislature has established the exception sought. The Supreme Court reiterated its Chambers position in such cases as Sustakovitch v. State, 249 Ga. 273, 275 (2) (290 SE2d 77) (1982), and Miller v. State, 259 Ga. 296, 297 (2) (380 SE2d 690) (1989).

I am authorized to state that Judge Pope joins in this special concurrence.


text:
    A90A1125.
    COMBINED INSURANCE COMPANY OF AMERICA v. REA.
    (394 SE2d 624)
   Deen, Presiding Judge.

In December of 1982, Judy Rea was working in her florist shop when a company hired by the City of Clarkesville forced smoke through the sewer system in an attempt to locate leaks. This smoke, combined with sewer gases, entered Mrs. Rea’s shop and caused her to have a severe reaction which included a sore throat, rash, shortness of breath, and chest pains. The following day she consulted her physician and was subsequently treated on a breathing machine. During one of the treatments, she had a reaction to the medication (which was later determined to contain one of the chemicals found in sewer gas) and had to be hospitalized for several days. After several weeks of recuperation at home, she attempted to return to work at her florist shop, but she immediately experienced the same symptoms. Her physician concluded that she had an inhalant allergy to the substances contained in the fumes in the shop. Her physician consulted with two allergists about her injuries and both concurred with his opinion that the material flushed out of the sewer pipes sensitized Mrs. Rea and caused her medical problems. She had experienced no allergy problems prior to this incident. She continues to experience attacks when she is exposed to certain substances with strong odors when she enters a store, goes to church, etc.

Mrs. Rea has a medical disability policy with Combined Insurance Company of America (“Combined”) which provides for disability benefits for sickness for five years and for benefits until age 65 if the disability results from an injury. Combined refused to pay benefits beyond five years, claiming that Mrs. Rea’s physician of May 1987 responded “Yes” to a deposition question and a question on a form: “Is the disability the result of sickness?” Mrs. Rea brought suit against the insurance company after her benefits were terminated. Combined brings this appeal following the denial of its motion for summary judgment.

1. By affidavit, in explanation of his response that Mrs. Rea’s disability was the result of a sickness, her physician stated that his affirmative answer “does not mean and never intended to mean that Judy Rea’s disability results from ‘sickness’ as opposed to ‘accident.’ ‘Sickness’ as a medical term means: ‘a condition of deviation from the normal health state.’ ” He attached to the affidavit a copy of this definition of “sickness” from the Encyclopedia & Dictionary of Medicine, Nursing & Allied Health, 3d ed. Dr. Waters also went on to state in his affidavit: “Her disability is a direct and independent result of her allergic sensitization which occurred by accident,” and that prior to giving this affidavit, he had never seen the insurance policy in question and was not aware that their definition of “sickness” (“illness or disease causing Total Disability which commences while this Policy is in force as to the insured”) differed from the normally accepted medical definition of the word.

On motion for summary judgment, the moving party bears the burden of proof and all evidence is construed in favor of the opposing party. Mitchell v. Rainey, 187 Ga. App. 510, 512 (370 SE2d 673) (1988); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). Appellant presented no evidence to prove that Mrs. Rea’s disability was caused by a “sickness” as defined in the policy. Indeed, all the evidence showed that her disability was the result of an accident. Her other medical problems, such as hypothyroidism, carbohydrate intolerance, and hypertension, were not shown to have any bearing upon her disability.

2. Appellant also contends that the trial court erred in denying its motion for summary judgment as to its potential liability for bad faith penalties.

Decided May 18, 1990.

McClure, Ramsay & Dickerson, John A. Dickerson, David L. Hudgins, for appellant.

Cathey & Strain, Dennis T. Cathey, for appellee.

The issue of bad faith is always a matter for jury resolution unless, as a matter of law, the insurance company raises a reasonable defense which vindicates the insurer’s good faith. St. Paul Fire & Marine Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (358 SE2d 925) (1987). “The issue of bad faith should be judged by the case made at trial, not by the preliminary proofs or other ex parte affidavits. [Cit.]” Stegall v. Guardian Life Ins. Co., 171 Ga. App. 576, 577-578 (320 SE2d 575) (1984). As appellant presented no evidence that it was entitled to summary judgment as a matter of law, the trial court did not err in denying summary judgment and leaving the issue for jury resolution.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1132.
    CHRISTIAN v. THE STATE.
    (394 SE2d 627)
   Deen, Presiding Judge.

Following the denial of his motion for a new trial, Frederick Christian filed this appeal from his conviction of possession of cocaine with intent to distribute. He asserts only the general grounds. Held:

A police officer cruised through a well-known drug area and observed Christian talking to someone in a car who was handing money out of the window. Someone yelled “ninety-nine” (street code for police), appellant looked up, saw the officer, and ran. The officer came back to the area in twenty minutes with other officers, who surrounded Christian with their patrol cars. The defendant ran, dropping a bag containing twenty small packages of cocaine. One of tbe officers caught him, arrested him, and searched his person. Two more packets of cocaine were found, and he had $245 in his pockets. The cocaine totaled 23 grams and was packaged in “dime” (ten-dollar) bags, which is the way such drugs are packaged for sale.

The credibility of the witnesses is solely the province of the jury. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). The jury in this case obviously chose not to believe appellant’s story that when the police cars entered the area, two other men threw down some drugs and a gun, that an officer approached him with his gun drawn and threw him down on the ground, and that he did not have any drugs on his person. Construing the evidence in favor of the prosecution, we find that a rational trier of fact could have found Christian guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 18, 1990.

A. Nevell Owens, for appellant.

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

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0063.
    JARRARD v. THE STATE.
    (394 SE2d 555)
   Sognier, Judge.

James Casper Jarrard was convicted by a Clayton County jury of operating a motor vehicle after being declared a habitual violator, and he appeals from the judgment entered thereon.

1. Appellant contends the trial court erred by denying his motion for directed verdict. He maintains that because the State issues a driver’s license for operation of a motor vehicle “upon a highway in this state,” OCGA § 40-5-20 (a), and because the statutory provisions concerning license revocation refer to “public highways,” OCGA §§ 40-5-1 (10); 40-5-121 (a), he cannot be convicted of the charged crime because the evidence showed that he was arrested while driving on a private road inside a private mobile home park.

We do not agree. OCGA § 40-5-58 (c), the provision under which appellant was convicted, proscribes the operation of “any motor vehicle in this state” by one whose license has been revoked after being declared a habitual violator. Even assuming, without deciding, that the road on which appellant was driving was a private thoroughfare, the statute at issue evinces a clear legislative intent to prohibit a person who has been declared a habitual violator and whose license has been revoked from operating a vehicle anywhere in the State. See Cook v. State, 220 Ga. 463, 464 (1) (139 SE2d 383) (1964). We find applicable the reasoning employed by the Supreme Court in Cook in interpreting similar language in a predecessor to the DUI statute, OCGA § 40-6-391 (a conviction under which can lead to habitual violator status under OCGA § 40-5-58 (a)), to preclude driving under the influence of alcohol on public or private property. “The present widespread use of motor vehicles, and the use of extensive private property for shopping centers and other purposes, with intricate mazes of roadways and driveways, indicate the need for protection to the public from [habitual violators] on places other than public streets and highways.” Cook, supra. Further, as OCGA § 40-5-20 (d) provides that “[a]ny person licensed as a driver . . . may exercise the privilege thereby granted upon all streets and highways in this state,” we find no inconsistency between the statutory scheme governing licensing and OCGA § 40-5-58 (c).

To the extent that appellant’s brief presents a constitutional challenge to OCGA § 40-5-58 (c), appellant’s failure to raise that argument below precludes its consideration on appeal. Moore v. State, 194 Ga. 672 (22 SE 510) (1942); Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989).

2. Because we have rejected appellant’s contention that OCGA § 40-5-58 (c) applies only to public highways, there is no merit in his second enumeration concerning the trial court’s failure to charge on his defense of operation of a vehicle on a private road.

3. Appellant also challenges the court’s admission of evidence concerning his driving history other than evidence of his status as a habitual violator and his two prior convictions for violation of OCGA § 40-5-58 (c). The State introduced, over objection, the notice of revocation sent to appellant, to which was attached his entire driving history (exhibit 1), and two prior habitual violator convictions (exhibits 2 and 3). Each exhibit contained evidence of prior DUI convictions, and exhibit 2 also included a conviction for public indecency. The trial court rejected appellant’s objections to the admission of the public indecency and DUI convictions, reasoning that the habitual violator charge itself placed appellant’s character in issue.

We disagree. A defendant’s character is put in issue “[not] by inadvertence, but by design.” Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). “ ‘[T]he general character of the defendant ... is irrelevant unless the defendant chooses to put his character in issue.’ . . . [O]nly where the defendant makes an election to place his good character in issue may the State offer evidence of the defendant’s general bad character or his prior convictions. . . .” Id. (Footnote omitted.) Given that appellant offered no evidence of his general reputation or character, we find he did not place his character in issue so as to authorize the admission of prior convictions. See id; see also Lancaster v. State, 189 Ga. App. 149 (2) (375 SE2d 281) (1988).

Upon careful review of the trial transcript, we find no other basis, as set forth in Jones, supra at 759, for admission of the prior offenses of public indecency and DUI. Appellant did not testify at trial, and the convictions at issue were unrelated and irrelevant to the charged crime. See Hurston v. State, 189 Ga. App. 748, 750 (3) (377 SE2d 519) (1989). There is no question that the public indecency conviction was not relevant to any aspect of the State’s case. As to the prior DUI convictions, while there were DUI offenses underlying the habitual violator determination, see OCGA § 40-5-58 (a), proof of those prior convictions was not an essential element of the State’s case, Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709) (1982), and thus evidence of the DUI offenses was not admissible for that purpose. Lancaster, supra at 150. Moreover, although the notice of revocation, which was an essential element of the State’s proof, listed the underlying DUI violations, material contained in the driving record other than the declaration of habitual violator status and the notice given thereunder is irrelevant to the State’s case, and accordingly proof of making and receipt of the notice could have been accomplished without prejudice to appellant’s rights under OCGA § 24-9-20 (b) by redaction of the inadmissible information. Harper v. State, 175 Ga. App. 703 (334 SE2d 30) (1985). (We note that Harper was decided before Jones, supra, and no issue involving OCGA § 24-9-20 was raised therein.)

Decided April 30, 1990

Rehearing denied May 22, 1990

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Clifford A. Sticker, Assistant District Attorneys, for appellee.

Because we find no proper purpose for admission of the public indecency and DUI convictions, we conclude this error requires reversal of the judgment. Hurston, supra at 751 (3); Lancaster, supra at 150.

Judgment reversed.

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


text:
    A90A0179.
    STANLEY v. THE STATE.
    (394 SE2d 785)
   Carley, Chief Judge.

Appellant was tried before a jury on an accusation charging him with driving under the influence in violation of OCGA § 40-6-391 (a) (4). He was found guilty and appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. The trial court’s denial of appellant’s motion to quash the accusation is enumerated as error. '

For the most part, appellant’s motion raised grounds which have previously been addressed and found to be meritless. See Proo v. State, 192 Ga. App. 169 (384 SE2d 197) (1989); Manley v. State, 187 Ga. App. 773, 774 (2) (371 SE2d 438) (1988). Insofar as the remaining grounds of appellant’s motion are concerned, they have been considered and are found to be equally without merit.

2. In one of his enumerations of error, appellant asserts that his “plea in bar should have been granted.” The arguments contained in his brief, however, do not address the merits of the denial of his plea in bar, but the entirely different issue of whether the trial court erred in refusing to allow an immediate direct appeal to be taken from that ruling. Thus, the error that is actually enumerated is not supported by argument and the argument that is actually advanced is not predicated upon any enumeration of error. Under these circumstances, nothing is presented for appellate review.

3. In another of his enumerations of error, appellant asserts that he “should have been granted a hearing on his motion to suppress the intoximeter results.”

Appellant was not entitled to a pre-trial hearing pursuant to OCGA § 17-5-30 because his motion did not raise any grounds involving “ ‘constitutional guarantees against unreasonable search and seizure.’ [Cit.]” State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982). Insofar as appellant’s motion can be construed as a motion in limine seeking to exclude the intoximeter test results on non-constitutional grounds, the record shows that a'pre-trial hearing was held and that the motion was denied. Accordingly, this enumeration of error is without merit because the trial court, in the exercise of its discretion, did afford appellant a pre-trial hearing on the admissibility of the evidence. See State v. Johnston, supra at 414 (3). The issue of whether the motion in limine was or was not properly denied cannot be reached because that ruling is not otherwise enumerated as error.

4. The trial court did not err in refusing to order compliance with appellant’s notice to produce items which were not shown to be in the possession of the State. Ross v. State, 192 Ga. App. 850 (2) (386 SE2d 721) (1989).

5. Appellant filed a pre-trial motion to exclude any statements that had been made by him to the police prior to receiving the Miranda warnings. At the outset of the trial, appellant renewed his motion and also requested a Jackson v. Denno hearing. The trial court did not merely defer holding such a hearing until a later stage of the trial, but ruled that such a hearing would not be held. The trial court’s refusal to conduct a Jackson v. Denno hearing is enumerated as error.

Even assuming that the trial court did err, that error was nevertheless harmless. The only inculpatory statements attributed to appellant that were ever introduced into evidence were statements that were made by him in response to routine roadside questioning prior to his arrest. Such roadside questioning does not constitute a custodial setting so as to trigger the applicability of Miranda. Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986). Since no “fair question” as to the voluntariness of appellant’s statements was presented, the trial court did not commit reversible error in failing to conduct a Jackson v. Denno hearing. Craver v. State, 246 Ga. 467, 468 (1) (271 SE2d 862) (1980).

6. The trial court did not err in refusing to permit appellant’s expert to examine the intoximeter machine that had been used to determine appellant’s blood-alcohol level. Blanos v. State, 192 Ga. App. 835 (1) (386 SE2d 714) (1989). Likewise, the trial court did not err in excluding testimony regarding the results of a breath test conducted by appellant’s expert under conditions markedly different from those which were present at the time that appellant’s breath was tested. Blanos v. State, supra at 835-836 (1); Kuptz v. State, 179 Ga. App. 150, 152 (9) (345 SE2d 670) (1986).

7. The evidence was more than sufficient to authorize a finding of appellant’s guilt under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and the trial court did not, therefore, err in denying appellant’s motion for a directed verdict of acquittal.

8. In explaining its ruling as to the admissibility of certain testimony, the trial court did not make an improper comment on the evidence. Pratt v. State, 167 Ga. App. 819, 821 (2) (307 SE2d 714) (1983).

9. The trial court did, however, err in denying appellant’s counsel the right to opening and closing argument. The only evidence proffered by appellant was excluded by the trial court and, therefore, appellant’s right to opening and closing argument had not been waived. Hubbard v. State, 167 Ga. App. 32, 34 (7) (305 SE2d 849) (1983). “The question remains, however, whether the error was harmless. The right to make the final argument to the jury is an important right and harm to the defendant is presumed on appeal when the right is erroneously denied. [Cit.] However, the presumption is not absolute and the error may be shown to be harmless.” McDuffie v. Jones, 248 Ga. 544, 547 (2) (283 SE2d 601) (1981).

Because appellant was on trial for violating OCGA § 40-6-391 (a) (4), there was no jury issue presented as to whether he was under the influence of alcohol to the extent that it was less safe for him to drive. The only jury issue was whether appellant drove while having a blood-alcohol content of 0.12 or greater. The results of appellant’s intoximeter test showed a blood-alcohol level of 0.17 and there was also evidence that, in routine roadside questioning, appellant admitted that he had been drinking earlier that evening. “We are of [the] opinion that the verdict was demanded by the evidence, and that another hearing, if the law be regarded, would result in the same way. . . .” (Emphasis supplied.) Seyden v. State, 78 Ga. 105, 110 (4) (1886). “Of course, a verdict is never demanded in a criminal case in the sense that the court may direct a guilty verdict. However, where, as here, the defendant makes no statement denying his guilt, and the evidence authorizes only a guilty verdict, such verdict is demanded in the sense that errors occurring on the trial may be harmless.” (Emphasis in original.) Poole v. State, 100 Ga. App. 380, 385 (2) (111 SE2d 165) (1959). Even if appellant’s counsel had been afforded the right to opening and closing argument, he nevertheless would not have been entitled to argue to the jury that it would be authorized to disregard the law applicable to the unrebutted evidence of appellant’s guilt. “ ‘(T)he undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence!,) ... is a power that must exist as long as we adhere to the general verdict in criminal cases. . . .’ [Cit.] However, that ‘is not to say that the jury should be encouraged in their “lawlessness.” ’ [Cit.]” Felker v. State, 252 Ga. 351, 378 (13b) (314 SE2d 621) (1984). Appellant “was not denied the right to argue his case to the jury. ... He was merely prohibited from making the closing argument. ... In view of the evidence against [appellant], it is highly probable, if not a certainty, that the error did not contribute to the conviction. [Cit.] Thus, a new trial is not required by the trial court’s harmless error.” McDuffie v. Jones, supra at 548 (2).

Decided May 2, 1990

Rehearing denied May 22, 1990

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

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.

Judgment affirmed.

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