text:
    A90A0451.
    SPARKS v. SOUTHWEST COMMUNITY HOSPITAL & MEDICAL CENTER, INC.
    (395 SE2d 68)
   Carley, Chief Judge.

When he broke his leg, appellant-plaintiff became a patient at appellee-defendant hospital. Appellant’s leg was re-injured while he was being transported in a wheelchair by appellee’s supervisor of patient transportation. As the result of this re-injury, appellant filed this suit, alleging that “[t]he wheelchair being used was an improper type and not designed for the transfer and portage of patients in [his] condition ...” and that appellee “by and through its agents and/or employees was negligent in the diagnosis, treatment, and care which they rendered to [him].” Appellee answered, denying the material allegations of appellant’s complaint.

The case was tried before a jury and a verdict in appellee’s favor was returned. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdict. In his sole enumeration of error, appellant urges that this was not a professional negligence action requiring expert testimony and that the trial court erred in charging the jury that it was.

“ ‘The requirement that expert testimony be adduced in a medical malpractice case is premised upon the existence in such a case of “medical questions” which control its resolution. (Cits.) . . .’ [Cit.] The question here is whether [appellee] deviated from the applicable standard of care in its [choice of the type of wheelchair to be used to transport] a patient in the condition and circumstances of [appellant]. [Cit.] The evidence here clearly indicates that the medical condition of the patient was the determinative factor as to the [type of wheelchair which should be used] by the hospital staff. Thus, the alleged negligent act required the exercise of expert medical judgment by [appellee’s] staff. [Cit.]” General Hospitals of Humana v. Bentley, 184 Ga. App. 489, 490-91 (361 SE2d 718) (1987).

Appellant’s reliance on Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d 872) (1987), is misplaced. In that case, “the only issue was the nurse’s decision to undertake the physical act of moving the patient from a stretcher or casting table to a [wheelchair], which was ‘merely an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment.’ [Cits.] . . . Since the instant case, unlike Candler Gen. Hosp., involved the questioning of [an] expert . . . [judgment], the trial court did not err in treating it as a professional malpractice case and [instructing the jury accordingly].” Chafin v. Wesley Homes, 186 Ga. App. 403 (1), 404 (367 SE2d 236) (1988).

Judgment affirmed.

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

Decided June 7, 1990.

Ellerin & Associates, Irwin M. Ellerin, Denise A. Hinds, for appellant.

Smith, Gambrell & Russell, David M. Brown, Rosemary Smith, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0077.
    THE STATE v. GRANT.
    (394 SE2d 916)
   McMurray, Presiding Judge.

On May 8, 1987, at approximately 9:15 a.m., defendant arrived at the Atlanta airport on a commercial flight which originated in Miami, Florida. As defendant deplaned, he was observed by Agents Noe and Laumiere of the Clayton County Narcotics Unit. The agents were watching passengers deplaning from defendant’s flight because Miami is a source city for illegal drugs.

Entering the concourse, defendant appeared to be “overzealous in his attempt to remain calm.” So, the agents followed defendant to the baggage claim area. There, the officers noticed that defendant was unusually nervous. He dropped his ticket envelope several times; he looked through the windows towards the parking area numerous times.

The agents watched defendant take an airline garment box off of the baggage carousel and bring it to a security guard. The security guard removed the baggage claim ticket. Instead of exiting the terminal with the garment box, defendant turned and walked parallel to the windows of the terminal. At that point, the agents approached defendant and, identifying himself as a police officer, Agent Noe asked if he could speak with defendant for a moment. Defendant stopped and Agent Noe asked if he could see defendant’s airline ticket. Defendant complied, handing the agent the ticket.

Agent Noe observed that the ticket was issued to “Reginald Coney”; that it was a one-way cash ticket; and that it was picked up earlier in the day at the airport in Miami. These facts were significant to the agents because drug couriers often purchase one-way cash tickets shortly before their departure.

As he looked at the ticket, Agent Noe asked defendant his name and defendant replied, “Mr. Coney.” Thereupon, the agent asked defendant if he had any identification and he replied that he did not. The agent advised defendant that a driver’s license, credit card, a receipt bearing his name or any such thing would suffice as identification. Without searching his pockets, defendant replied that he had no such documentation. The agents deemed the lack of identification significant because most people who give false names do not produce identification when asked.

Agent Noe asked defendant why he had come to Atlanta and he replied that he had come to visit a cousin. At that time, the agent observed that defendant “had become extremely nervous . . . you could visibly see that his chest was shaking and he was bouncing from one foot to the other as if he would like to leave, but he never said that.” So, the agent advised defendant that he and Agent Laumiere were narcotics agents on the lookout for illegal drugs and he asked defendant if he would “cooperate with us and allow us to search you and your luggage.” Defendant stated that he would cooperate if the agents possessed a search warrant. Advising that they did not have a search warrant, Agent Noe again asked defendant if he would permit the agents to conduct a search. Defendant again replied, “If you don’t have a search warrant, you can’t search me.”

Agent Noe again noticed that defendant was extremely nervous. He observed that defendant was sweating on his forehead even though it was rather cool in the terminal. At that point, Agent Noe informed defendant that he was free to leave but that the agents were going to detain his bag. He added that defendant could accompany the agents to their office and obtain a receipt for the bag. Defendant said he would go with the agents to their office. When they arrived, Agent Noe filled out a receipt for the bag. Defendant said he did not know a phone number at which he could be reached so Agent Noe gave him a piece of paper with his name and number to enable defendant to get in touch with him about the bag. Thereupon, Agent Noe walked defendant to the transportation area and pointed out the taxicabs.

Placing a call to the Douglas County Sheriff’s Department, Agent Noe requested that a drug detector dog, “Kilo,” be brought to the airport. In the meantime, the agents learned that defendant made his airplane reservations at approximately 10:00 p.m. on May 7, 1987. This fact was significant because a majority of persons carrying contraband make last minute travel reservations.

The drug detector dog arrived at the airport at approximately 10:55 a.m. (about an hour after it was summoned). The agents lined up five bags for sniffing. One of the bags was the bag they received from defendant. Walking down the luggage lineup, the dog immediately alerted to defendant’s bag.

The drug detector dog had been used to detect drugs in the past and his previous alerts had proven to be accurate. Accordingly, Agent Noe obtained a search warrant for defendant’s bag. Searching the bag pursuant to the warrant, the agents discovered approximately 140 grams of cocaine.

Almost one year later, the agents learned defendant’s true identity and he was indicted for violating the Georgia Controlled Substances Act and giving a false name to a law enforcement officer. At the arraignment, defendant entered a not guilty plea.

Subsequently, defendant filed a motion to suppress evidence and, following a hearing, the trial court granted the motion. The State appeals, enumerating error upon the grant of the motion to suppress. Held:

1. “[W]hen an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)] and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.” United States v. Place, 462 U. S. 696, 706 (103 SC 2637, 77 LE2d 110). Thus, in cases involving the detention of luggage, a two-fold inquiry is in order: (1) Did the police have reasonable cause to detain the luggage? (2) Was the detention so minimally intrusive as to be justifiable upon reasonable cause? See United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605).

2. In United States v. Sokolow, 490 U. S. _ (109 SC 1581, 104 LE2d 1), defendant Sokolow was stopped by Drug Enforcement Administration (“DEA”) agents after arriving at Honolulu International Airport on a flight from Miami. The following facts led the agents to stop him: (1) Miami is a known source city for illegal drugs; (2) defendant Sokolow stayed in Miami only 48 hours even though a round-trip flight from Honolulu to Miami takes 20 hours; (3) he paid cash ($2,100) for two airplane tickets (he was traveling with a companion) from a roll of $20 bills; (4) he was traveling under a name which did not match the name for his telephone number; (5) he did not check his luggage; and (6) he appeared to be nervous.

Following the stop, defendant Sokolow was escorted to the DEA office where a drug dog alerted to defendant Sokolow’s shoulder bag. He was arrested and the agents obtained a warrant to search the shoulder bag. Although the bag did not contain contraband, it did contain documents indicating defendant Sokolow’s involvement in drug trafficking. The drug dog examined his other luggage and alerted to another bag. Because it was too late to obtain another warrant, the agents permitted defendant Sokolow to leave — but they kept his luggage. The next morning, the agents obtained a warrant and found 1,063 grams of cocaine in defendant Sokolow’s bag. He was indicted for possession with intent to distribute cocaine and subsequently moved to suppress the cocaine and other evidence seized by the agents. The district court denied the motion to suppress, ruling that the agents had a reasonable suspicion that defendant Sokolow was engaged in drug trafficking when they stopped him. The United States Court of Appeals for the Ninth Circuit reversed and the United States Supreme Court granted certiorari.

Reversing the judgment of the Ninth Circuit Court of Appeals, the Supreme Court held that the agents had reasonable grounds to suspect that defendant Sokolow was involved in transporting illegal drugs. In this regard, the court observed that although each fact known to the agents did not, by itself, amount to reasonable suspicion, “taken together,” they did.

In the case sub judice, defendant Grant traveled to Atlanta from Miami, a known drug source city; he purchased a one-way ticket with cash and picked it up at the airport in Miami the day of his flight; he was unusually nervous; he was unable to produce identification after he was approached by the agents; and he became even more nervous when he was addressed. In our view, these facts were sufficient to authorize the agents to detain defendant’s bag. Although the individual facts known to the agents were consistent with innocent travel, taken together, they provided the agents with a reasonable suspicion that defendant Grant was transporting illegal drugs.

The mere fact that defendant Grant’s behavior fit a “drug courier profile” does not lead us to another conclusion. As the Supreme Court stated in United States v. Sokolow, 490 U. S. _, 104 LE2d 1, 12, supra: “A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.”

In passing, we pause to mention that in considering cases of this kind “[t]he Supreme Court has emphasized that courts should treat the judgment of experienced officers with a considerable amount of deference. Because of their expertise, these officers are ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’ Brown v. Texas, 443 U. S. 47, 52 n. 2, 99 S.Ct. 2637, 2641 n. 2, 61 L.Ed.2d 357 (1979). . . . Therefore, viewing the facts from the standpoint of an experienced officer, reasonable suspicion might exist where it would not exist if the same facts were viewed from the standpoint of an untrained observer.” United States v. White, 890 F2d 1413 (8th Cir. 1989) (concurring opinion).

3. In United States v. Place, 462 U. S. 696, supra, defendant Place aroused the suspicions of DEA agents at Miami International Airport but he was permitted to board a flight bound for New York’s La Guardia Airport. On the basis of defendant Place’s parting remarks and a subsequent investigation revealing discrepancies concerning the telephone number and address used by defendant Place, the Miami agents called the DEA authorities in New York and informed them about defendant Place. Two agents waited for defendant Place when he deplaned. Again, his behavior aroused the agents’ suspicions. The agents approached him and, following some colloquy, asked if he would consent to a search of his luggage. When defendant Place refused, one of the agents informed him that they were going to take his luggage to a federal judge to obtain a search warrant and that he could accompany them. Defendant Place declined to do so, but he obtained telephone numbers to reach the agents later. The agents took the luggage to Kennedy Airport and subjected the bags to a canine “sniff test.” The test was conducted 90 minutes after defendant Place’s luggage was seized. The dog alerted and, subsequently, the agents secured a search warrant. Over 1,100 grams of cocaine were found when the warrant was executed, and defendant Place was indicted for possession of cocaine with intent to distribute. He moved to suppress the contents of the luggage. The district court denied the motion, but the United States Court of Appeals for the Second Circuit reversed. The appellate court reasoned that reasonable suspicion existed for an investigatory stop, but the prolonged detention of defendant Place’s luggage exceeded the permissible limits of such a stop.

The Supreme Court refused to adopt a time limit for the permissible detention of luggage based upon a reasonable suspicion. Nevertheless, it held that the 90-minute detention of defendant Place’s luggage was unreasonable and violated his Fourth Amendment rights. In reaching its conclusion, the court took into account the lack of diligence on the part of DEA agents, noting that the agents expected defendant Place’s arrival at New York’s La Guardia Airport and had ample time to arrange the presence of a drug detector dog. The court also noted that the unreasonableness of the detention was “exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion.” 462 U. S. at 710.

In United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 84 LE2d 605) the Supreme Court determined that a 20-minute detention of an automobile driver did not exceed the bounds of an investigative stop. In so ruling, the court distinguished Place on the ground that the police in Sharpe did not “unnecessarily” prolong the driver’s detention. In this regard the court interpreted Place as follows: “[T]he rationale underlying that conclusion [the detention of Place’s luggage was unreasonable] was premised on the fact that the police knew of respondent’s arrival time for several hours beforehand, and the Court assumed that the police could have arranged for a trained narcotics dog in advance and thus avoided the necessity of holding respondent’s luggage for 90 minutes.” 470 U. S. at 684, 685. Unlike the agents in Place, the court stated that the police in Sharpe were reacting to a “swiftly developing situation.” 470 U. S. at 686. Thus, the conduct of the police in Sharpe was viewed by the court as being more reasonable than the conduct of the agents in Place and the detention of the automobile driver was upheld.

In upholding the 20-minute detention in Sharpe, the Supreme Court made it clear that rigid time limitations have no place in a Terry stop analysis: “Much as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. We sought to make this clear in Michigan v. Summers, [452 U. S. 692 (101 SC 2587, 69 LE2d 340)]: ‘If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams (v. Williams, 407 U. S. 143 [(92 SC 1921, 32 LE2d 612)] (1972)).’ 452 U. S., at 700, n. 12, [(101 SC 2587, 69 LE2d 340)].” United States v. Sharpe, 470 U. S. 675, 685, 686, supra.

In the case sub judice, more than one hour passed between the time the agents seized defendant Grant’s bag and the drug detector dog supplied the agents with probable cause for a warrant. Thus, upon a strict time analysis, this case is close to the 90-minute detention condemned in Place. We are not prepared to say, however, that the length of the detention rendered it unreasonable. Why? Because the agents did not unnecessarily prolong the detention of defendant’s bag. Unlike the agents in Place, the agents in the case sub judice were not forewarned about defendant Grant’s arrival. Thus, it cannot be said that they should have had a drug detector dog ready and waiting at the airport to greet the defendant. See in this connection United States v. Alpert, 816 F2d 958, 963 (4th Cir. 1987), wherein the court found a 50-minute detention of luggage to be a minimal intrusion, declining to “require a per se rule that the police keep their narcotics dogs at the airport whenever they are observing incoming flights for drug couriers.” Moreover, unlike the agents in Place, the agents in the case sub judice attempted to arrange for the return of defendant Grant’s bag in the event no contraband was found.

In the case sub judice, the agents acted diligently in a situation they did not necessarily expect to happen. See United States v. Hardy, 855 F2d 753, 761 (11th Cir. 1988) (50-minute roadside stop did not violate Fourth Amendment rights where police acted with propriety and diligence in arranging for a drug detector dog). The detention of defendant Grant’s bag was not prolonged needlessly and the agents tried to make arrangements for its return. In our view, the intrusion was minimal and was justifiable upon reasonable cause. It did not violate defendant’s Fourth Amendment rights.

Decided May 22, 1990

Rehearing denied June 8, 1990

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

William H. Turner, Jr., for appellee.

4. The trial court erred in granting defendant’s motion to suppress evidence.

Judgment reversed.

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


author: Carley, Chief Judge.

text:
    A90A0279.
    KING v. THE STATE.
    (395 SE2d 1)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of rape and armed robbery. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. In 1981, appellant pled guilty to charges of rape, armed robbery, and aggravated sodomy. The trial court correctly ruled that evidence of appellant’s commission of these previous crimes would be admissible in the instant case as similar transactions showing plan, scheme, pattern, bent of mind and identity. Burroughs v. State, 186 Ga. App. 40, 41 (2) (366 SE2d 378) (1988).

2. Appellant took the stand in his own defense. It necessarily follows that the trial court did not err in allowing appellant to be cross-examined concerning his commission of the prior similar crime. See generally McCarty v. State, 165 Ga. App. 241 (299 SE2d 95) (1983).

3. Over appellant’s objection to relevancy, a witness for the State was allowed to testify that appellant appeared to be similar to the man she had seen in 1981 at the scene shortly before the crimes had occurred. This evidence was obviously relevant to appellant’s identification as the perpetrator and the credibility of the witness’ identification testimony was for the jury. There is nothing whatsoever to indicate that the witness had ever made a pre-trial identification of appellant in this case and any reliance upon Rounsaville v. State, 177 Ga. App. 132, 133 (1) (338 SE2d 538) (1985) is, therefore, misplaced. Since the witness was not appellant’s accomplice, the question of whether her testimony was insufficient “slight” corroborative evidence of appellant’s perpetration of the instant crimes is of no consequence whatsoever. Compare Moreland v. State, 183 Ga. App. 113, 115 (3) (358 SE2d 276) (1987).

Decided May 2, 1990

Rehearing denied June 8, 1990

G. Scott Sampson, Mary E. Erickson, for appellant.

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

4. The trial court’s failure to charge, without request, that appellant could not be impeached by evidence of general bad character is enumerated as error.

Although there are limitations on the State’s right to impeach a criminal defendant for general bad character pursuant to OCGA § 24-9-84, a criminal defendant is not, as appellant urges, immune from being subject to such impeachment. “[T]here are restrictions on the right to impeach a witness who is the defendant on trial in a criminal case. Evidence of general bad character and prior convictions of crimes involving moral turpitude are unavailable unless the witness-defendant first puts his character in issue.” (Emphasis supplied.) State v. Byrd, 255 Ga. 665, 666 (341 SE2d 455) (1986). If appellant wished to have the jury charged that he would not be subject to impeachment pursuant to OCGA § 24-9-84, he should have requested such a charge. State v. Byrd, supra at 667; Rhodes v. State, 144 Ga. 837 (4) (88 SE 196) (1916). Because he did not make such a request, we need not decide whether appellant’s testimony failed to put his character into evidence so that such a limiting instruction on his lack of impeachability would otherwise have been authorized.

Judgments affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1339.
    TIMBERBANK, INC. et al. v. HAYNES.
    (395 SE2d 69)
   Banke, Presiding Judge.

The judgment of this court in TimberBank, Inc. v. Haynes, 192 Ga. App. 878 (386 SE2d 861) (1989), having been reversed in part by the Supreme Court in Caton v. Haynes, 260 Ga. 204 (391 SE2d 107) (1990), said judgment is hereby vacated; and pursuant to the decision of the Supreme Court, that portion of the lower court’s judgment awarding damages against appellant Catón is hereby reversed. In accordance with the prior decision of this court in the case, that portion of the lower court’s judgment awarding damages against appellant TimberBank, Inc., is hereby affirmed.

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.

Decided June 8, 1990.

Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., Susan B. Devitt, for appellants.

Sutherland, Asbill & Brennan, Kimberly L. Woodland, John H. Fleming, Jr., Rogers & Hardin, John J. Almond, for appellee.


author: Cooper, Judge.

text:
    A90A0331.
    CRAWFORD v. MEYER.
    (395 SE2d 327)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment to appellee.

At the time of the automobile collision giving rise to this action, appellant and appellee were both employees of the same motel. Appellee finished her work shift, got in her car which was parked in the employer’s parking lot a few feet from the side door to the building in which she worked, backed her car out of the parking space and collided with appellant’s vehicle. Appellant, still working on her shift, had parked her car behind appellee’s car and was preparing to deliver some items inside the motel. Appellant filed a workers’ compensation claim and received benefits from the employer. In her motion for summary judgment, appellee contended that appellant was precluded by OCGA § 34-9-11 from further recovery from a fellow employee.

OCGA § 34-9-11 provides an exclusive remedy for claims as between employees of the same employer “when an injury arises out of and in the course of employment.” Labelle v. Lister, 192 Ga. App. 464, 465 (1) (385 SE2d 118) (1989). “The period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises. [Cits.]” Knight-Ridder Newspaper Sales v. Desselle, 176 Ga. App. 174, 175 (335 SE2d 458) (1985). A parking lot is a part of the employer’s premises and an employee “ ‘remains in the course of . . . employment’ during a reasonable time for egress. [Cit.] ” Labelle, supra at Division 1.

The affidavit, deposition, pleadings and responses of appellee state that appellee and appellant worked for the same employer, and although appellee was finished with her daily work shift, she was in a parking lot on her employer’s premises and the accident occurred within a reasonable time for appellee’s egress from her workplace. Appellant’s affidavit and deposition did not sufficiently rebut the appellee’s evidence. See Evans v. Richardson, 189 Ga. App. 751 (5) (377 SE2d 521) (1989). Consequently, appellant’s exclusive remedy is pursuant to OCGA § 34-9-11 and the trial court did not err in granting appellee’s motion for summary judgment.

Decided June 8, 1990.

James R. Jester, for appellant.

McClain & Merritt, M. David Merritt, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0380.
    JONES v. THE STATE.
    (395 SE2d 69)
   Cooper, Judge.

Appellant was convicted by a jury of trafficking in cocaine. OCGA § 16-13-31 (a). On appeal, in addition to the general grounds, appellant enumerates as error the denial of his motion to suppress and the trial court’s charge to the jury on trafficking.

An investigator with a county sheriff’s office received information from a probation officer about an ongoing enterprise of drug transportation. The probation officer had received the information from a concerned citizen who wanted to be a confidential informant. Although the concerned citizen had never given the probation officer any drug information, the citizen had relayed certain information on people which the probation officer had ascertained was true via personal observations. The investigator received the following information: A suspect named John Wayne Jones and two other suspects, nicknamed “Slick” and “Pooh” and with a last name of Morant, were involved in an ongoing enterprise of transporting drugs weekly from Atlanta to Hartwell; Jones was a black male, approximately 6’4” in height with a weight of approximately 400 pounds; and Jones lived in Hartwell and would be driving a silver Mazda. The investigator verified a large portion of the information received with the chief of police in Hartwell. After one failed surveillance on 1-85, the investigator met with the concerned citizen and the probation officer and was told: the specific days the suspects would travel, that they would travel down 1-85 and that they would be driving a rented navy blue, four-door 1983 Oldsmobile Cutlass with South Carolina plates. The investigator enlisted the help of two GBI officers in a second surveillance in which one GBI officer spotted a car fitting the description. The officer verified the South Carolina tags, the description of the driver as fitting the description of Jones, and the presence of two other black males in the car. The officer turned on his headlights and strobe light and after a considerable distance, the car pulled to the side. When the officer stepped out and ordered the driver out of the car, the car accelerated back on to the interstate. After a chase which led into a rest area, the car was stopped, the driver and one suspect were apprehended, and the third suspect fled into the woods. The third suspect was later caught, and a bag of approximately three ounces of cocaine was found in the area where he was apprehended. The suspects and the car were searched and no other contraband was found.

1. Appellant’s first assertion of error that the trial court’s charge to the jury on OCGA § 16-13-31 (a) was incorrect is without merit. The corrected transcript reveals that the court referred to 28 grams, not .28 grams. Further, following the charge, and in response to a direct inquiry by the court as to whether appellant’s counsel had any objections to the charge, counsel responded, “not at this time, Your Honor.” The trial court then stated that if appellant’s counsel knew of any error, the court would like counsel to tell the court, to which appellant’s counsel again responded that he did not have any objections at the time. Therefore, since appellant neither objected to the charge, nor specifically reserved his objection to a later time, appellant has waived this enumeration predicated on the jury charge. Cooper v. State, 188 Ga. App. 297 (2) (372 SE2d 679) (1988).

2. Appellant’s contention that the trial court erred in denying his motion to suppress is also without merit. Based on the information received from the concerned citizen, the officer had “specific and articulable facts” which reasonably warranted a brief stop of the vehicle. See Radowick v. State, 145 Ga. App. 231 (1) (244 SE2d 346) (1978). “[W]hat is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. [Cit.] Each case depends on its own facts.” Allen v. State, 140 Ga. App. 828, 830 (1) (232 SE2d 250) (1976). Under the facts of this case, the initial stop was justified. Further, the flight of appellant,-together with the other circumstances, “ ‘may be sufficient probable cause to uphold a warrantless arrest or search. (Cit.)’ [Cits.]” Banks v. State, 187 Ga. App. 280, 281 (1) (370 SE2d 38) (1988). We conclude that the flight, in addition to the information received, was sufficient to create probable cause under the “totality of the circumstances” for the warrantless search and arrest of the suspects. See Clark v. State, 189 Ga. App. 124, 125 (375 SE2d 230) (1988). Although the concerned citizen had not previously given information on drugs leading to a conviction, other information from the concerned citizen as well as the information on appellant had been verified, the citizen had obtained his information through some personal observation, and “the details of the tip were corroborated by the personal observation of the investigating [officer].” McKinney v. State, 184 Ga. App. 607, 609 (1) (362 SE2d 65) (1987). Therefore, we find no error in the trial court’s denial of appellant’s motion to suppress.

3. The evidence adduced at the trial of this case was sufficient to sustain a finding of guilt by a rational trier of fact beyond a reasonable doubt; therefore, the trial court was not in error to deny appellant’s motions for a directed verdict and for a new trial. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 8, 1990.

Hester & Hester, Frank B. Hester, for appellant.

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

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0603.
    ZACKERY v. THE STATE.
    (395 SE2d 71)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of burglary. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant moved that the in-court identification testimony of one of the State’s witnesses be suppressed on the ground that the witness’ testimony had been tainted by an impermissibly suggestive pretrial photographic display. The trial court’s denial of this motion is appellant’s sole enumeration of error.

The record shows that, at the hearing on the suppression motion, the witness testified that his identification of appellant was based upon his “going back on memory, not necessarily the picture that the officer showed [him]. Best of [his] recollection.” Accordingly, the trial court did not err in denying the motion to suppress the witness’ in-court testimony. “Even if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cit.] Under the facts of this case we need only determine that the record supports the trial court’s determination that the in-court identification was based on an independent origin rather than any irregularity in the pretrial identification procedures. [Cit.] As the record supports that determination, the in-court identification was admissible.” Douglas v. State, 175 Ga. App. 63, 64 (2) (332 SE2d 361) (1985). See also Burrell v. State, 239 Ga. 792 (239 SE2d 11) (1977); Hayes v. State, 163 Ga. App. 177, 178 (2) (293 SE2d 62) (1982).

Judgment affirmed.

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

Decided June 8, 1990.

Rosenzweig, Karri, Jones & McNabb, Douglas L. Dreyer, for appellant.

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


text:
    A90A0621.
    DENNY v. CROFT.
    (395 SE2d 72)
   Cooper, Judge.

In October 1988, appellant filed an action in the Superior Court of Morgan County against appellee, individually and in his capacity as deputy sheriff of Morgan County seeking damages as a result of an alleged unlawful arrest and battery. In February 1989, appellee, who then resided in the State of Florida, was given a copy of the complaint by an agent of the Georgia Bureau of Investigation (“GBI”), who was in Florida to serve him with a copy of a subpoena to testify before a federal grand jury. Appellee contacted the Morgan County Sheriff’s Department about the lawsuit, and was told that the sheriff’s department was handling the matter. Appellee took no further action until June 1989 when he retained an attorney, who filed on his behalf, a motion to open default and a motion to dismiss the complaint for insufficiency of service. The trial court granted appellee’s motion to dismiss for insufficiency of service, and in the alternative opened the default and this appeal followed.

1. Since appellant’s brief and enumeration of errors were filed in compliance with our order dated February 1, 1990, appellee’s motion to dismiss the appeal is denied.

2. Appellant contends that the trial court erred in finding that service was insufficient. A defendant who is in default does not waive defects in service. Dotson v. Luxtron, 155 Ga. App. 504, 505 (271 SE2d 644) (1980). Appellee was a resident of the State of Georgia at the time the cause of action accrued, and thereafter became a resident of the State of Florida; therefore, service should have been perfected on him in accordance with the Georgia Long Arm Statute. Mutual Fed. Savings &c. Assn. v. Reynolds, 147 Ga. App. 810, 811 (250 SE2d 556) (1978). Georgia’s Long Arm Statute provides that a nonresident “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” (Emphasis supplied.) OCGA § 9-10-94. The GBI agent who served appellee was not authorized to serve process under either Georgia or Florida law; nor does the record show that he had been specially appointed by the court of either state to serve the complaint on appellee. Since the GBI agent was without authority to serve process, his attempt to do so was without effect. Townsend v. Williams, 170 Ga. App. 766 (318 SE2d 510) (1984). Furthermore, “ ‘[t]hat (appellee) may have received a copy of the complaint and summons in connection with an attempted but invalid service does not suffice to afford the required notice of the action or dispense with a valid service. (Cit.)’ [Cits.]” Townsend v. Williams, supra. In the absence of proper service, no jurisdiction over the defendant is obtained by the court. Elmore v. Elmore, 177 Ga. App. 682 (2), 683 (340 SE2d 651) (1986). Accordingly the trial court did not err in dismissing the complaint against appellee for insufficiency of service of process.

Decided June 8, 1990.

E. Ronald Garnett, for appellant.

Lambert & Roffman, Allan R. Roffman, for appellee.

3. Because we conclude that the service was invalid, appellant’s second enumeration of error that the trial court erred in opening the default is moot.

4. We find no error with the trial court’s denial of a continuance to appellant. A denial of a motion for continuance is within the sound legal discretion of the trial court and will not be disturbed absent manifest abuse. Turner v. City of Nashville, 177 Ga. App. 649, 650 (2) (340 SE2d 619) (1986).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0641.
    BROWN v. THE STATE.
    (395 SE2d 73)
   Cooper, Judge.

Appellant was convicted by a jury of burglary and appeals. His sole enumeration of error is that the admission of the testimony of his mother and sister violated his attorney-client privilege.

The State called as witnesses appellant’s mother and sister, who testified, without objection, that they were present at a meeting appellant had with his attorney and that during the meeting appellant admitted committing the burglary. Appellant contends for the first time on appeal that the admission of the testimony violated his attorney-client privilege. The witnesses were third parties who overheard the conversation between appellant and his attorney and their testimony would not be subject to the attorney-client privilege. Bradley v. State, 137 Ga. App. 670 (3) (224 SE2d 778) (1976); Richards v. State, 56 Ga. App. 377 (1) (192 SE 632) (1937). Furthermore, appellant’s failure to make a timely objection at trial constitutes a waiver on appeal. See Seabrooks v. State, 251 Ga. 564 (1) (308 SE2d 160) (1983); Haynes v. State, 180 Ga. App. 202 (1) (349 SE2d 208) (1986).

Decided June 8, 1990.

Stephen R. Yekel, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0711.
    LANGSTON v. THE STATE.
    (395 SE2d 74)
   Carley, Chief Judge.

Appellant was charged with four counts of armed robbery in one indictment, murder and armed robbery in a second indictment, and armed robbery in a third indictment. After all of his alleged accomplices entered pleas, appellant was tried before a jury on all three indictments. He was found guilty of only two of the armed robbery counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The trial court’s denial of appellant’s motion to sever the offenses charged in the first indictment is enumerated as error.

The record contains evidence that one of appellant’s accomplices participated with him in every armed robbery charged. The armed robberies all occurred within a 15-day period and all involved similar weapons, disguises and methods of operation. The major difference was that one of the armed robberies resulted in murder.

It is clear that the armed robberies charged in the first indictment “were sufficiently similar so that the evidence as to [any] one would be relevant and admissible evidence as to the other[s]. ‘ “(W)here . . . the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying (appellant’s) motion for severance.” ’ [Cit.] Since appellant was acquitted on [three] of the [armed robbery] counts, it is clear that the jury was ‘ “able to distinguish the evidence and apply the law intelligently as to each offense.” (Cit.)’ [Cit.] The trial court did not err in denying the motion to sever.” Herring v. State, 191 Ga. App. 798-799 (1) (383 SE2d 178) (1989).

2. Appellant also enumerates as error the trial court’s sua sponte consolidation, over objection, of the three indictments for single trial.

Decided June 8, 1990.

Hasty & Wingo, Lee R. Hasty, E. Earl Seals, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

A consolidation of separate indictments on the trial court’s own motion is permissible. Little v. State, 165 Ga. App. 389, 390 (2) (300 SE2d 540) (1983). “ ‘The underlying consideration regarding the issue of a joint trial on two or more indictments is whether undue or great risk of prejudice from a joint disposition of charges would result. [Cit.] Where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. [Cit.]’ [Cit.] . . . [Under the State’s evidence in the instant case, the robberies and the murder] constitute a single scheme or plan and may thus be joined in a single prosecution. [Cit.]” Little v. State, supra at 390-91 (2). Moreover, because appellant was acquitted on both counts of the second indictment and on three of four counts of the first indictment, “it is [again] clear that the jury was ‘ “able to distinguish the evidence and apply the law intelligently as to each offense.” (Cit.)’ [Cit.]” Herring v. State, supra at 799 (1). The trial court did not abuse its discretion in ordering on its own motion, over appellant’s objection, the consolidation of the separate indictments for a single trial. See Little v. State, supra at 391 (2).

Judgments affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A0090.
    FOWLER v. THE STATE.
    (395 SE2d 33)
   Deen, Presiding Judge.

Robert W. Fowler was convicted of DUI, speeding, and driving while his license was suspended. On appeal he claims that the trial court erred in refusing to declare his prior DUI convictions in municipal recorder’s courts to be null and void, and in considering these convictions in his sentencing. He also asserts as error the trial court’s denial of his motion for a continuance.

1. Appellant’s first enumeration of error was recently decided adversely to his position by the Supreme Court of Georgia. Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990).

2. Under OCGA § 17-8-20, “the party making an application for a continuance must show that he has used due diligence.” OCGA § 24-10-25 requires that a subpoena be served 24 hours prior to the time a witness is to appear for it to be valid. The witness in the instant case was not served until the night before trial and a proper return of service was not made for almost a month after service of the subpoena. The denial of a motion for a continuance on the ground of an absent witness lies within the sound discretion of the trial judge, which will not be disturbed on appeal absent abuse. Wellons v. State, 144 Ga. App. 218, 219 (240 SE2d 768) (1977). We find no abuse of discretion by the trial court.

Decided May 25, 1990

Rehearing denied June 11, 1990.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Robert Greenwald, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1080.
    UTICA MUTUAL INSURANCE COMPANY et al. v. CHASEN.
    (395 SE2d 40)
   Deen, Presiding Judge.

Ms. Chasen, appellee here, was injured in an automobile collision on May 15, 1984, in which two known drivers (and, as was later learned, perhaps a third, unknown person) were involved. In her complaint filed May 6, 1986, Ms. Chasen named as defendants the drivers and owners of the two known vehicles; appellant Utica Mutual Insurance Company (Utica) was served as plaintiff’s uninsured motorist carrier, pursuant to OCGA § 33-7-11, but no unidentified motorist was named, and no “John Doe” defendant was désignated. Utica answered in its own name and subsequently, upon learning that the named defendants were fully insured, sought summary judgment.

In replying to Utica’s motion on October 30, 1987, Ms. Chasen acknowledged that all the named defendants were insured, but asserted that a witness, in deposition testimony taken after expiration of the two-year statute of limitation, had averred that he had seen another, unidentified driver involved in the collision. On the same date plaintiff, without seeking leave of court, amended her complaint, alleging that the accident “was caused in whole or in part by the negligence of an unknown motorist.”

In November 1987 Utica filed a motion to dismiss the amended complaint on the ground that the two-year statute of limitation had expired between the filing of the original complaint and the filing of the amendment. In denying Utica’s motions for summary judgment and for dismissal, the court held on January 19, 1988, that the amendment related back to the date of the original complaint but that plaintiff should have sought leave of the court to file the amendment. On that same date Utica filed an interlocutory appeal to this court, which on July 11, 1988, reversed the trial court’s order. Utica Mut. Ins. Co. v. Chasen, 187 Ga. App. 796 (371 SE2d 448) (1988).

In May 1988, while the interlocutory appeal was still pending, plaintiff filed a motion to add a party defendant, expressly requesting leave of court to add “ ‘John Doe’ or ‘unknown motorist.’ ” In the brief in support of the motion, Chasen contended that, because no pre-trial order had been entered in the case, she could add a party as a matter of right under OCGA § 9-11-15 (a) but was nevertheless seeking leave of court; and that under OCGA § 9-11-15 (c) the motion would relate back.

Utica filed no response to this motion, and on July 22, 1988, the trial court granted the motion and ordered that within ten days plaintiff must file an amended complaint naming John Doe as a party defendant. Plaintiff complied on July 28, and on November 3 Utica answered in the name of John Doe and counterclaimed, pleading the statute of limitation.

On November 15, 1988, Utica filed a motion to dismiss the second amended complaint, contending that, pursuant to the Court of Appeals’ July 1988 ruling on the trial court’s January 1988 order, Utica should no longer be a party to the action; the statute of limitation barred further claims; and there should no longer exist an original complaint against Utica to which the amended complaint could relate back. On December 18, 1989, the trial court denied Utica’s November 1988 motion to dismiss, determining that the amendment did relate back to the timely filed original complaint. Utica sought an interlocutory appeal of this ruling, and this court granted the application. Held:

Appellant enumerates a single error: that the trial court erred in denying Utica’s motion to dismiss the amended complaint of July 28, 1988, inasmuch as the amended complaint should not have been deemed to relate back to the filing of the original complaint, and should therefore have been barred by the two-year statute of limitation.

OCGA § 9-11-21 provides in pertinent part that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action. . . .” Georgia’s Supreme Court has held that the phrase “at any stage” includes during an appeal. Guhl v. Tuggle, 242 Ga. 412 (249 SE2d 219) (1978); accord Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805 (371 SE2d 421) (1988). In the instant case plaintiff sought to add “ ‘John Doe’ or ‘unknown motorist’ ” in May 1988, during the pendency of Utica’s first interlocutory appeal, Utica Mut. Ins. Co. v. Chasen, 187 Ga. App. 796 (371 SE2d 448) (1988). On July 11 this court reversed the trial court but expressly reserved judgment on whether the amendment would have related back had plaintiff “sought to add a John Doe defendant,” citing Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14 (217 SE2d 358) (1975). Eleven days later the trial court granted plaintiff’s motion to add a “John Doe” defendant. This (second) amended complaint, timely filed in compliance with the trial court’s order of July 22 and with OCGA § 9-11-5 (a), triggered Utica’s motion to dismiss on the basis that, in the circumstances of the instant case, the “relation back” doctrine set forth in OCGA § 9-11-15 (c) did not apply because Utica had been dismissed from the original action and could not be brought in on an amended complaint filed after expiration of the statute of limitation.

We disagree with appellant Utica’s contention and therefore must affirm the judgment below. Subsection (c) prescribes that “[wjhenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading. ... An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

In Sam Finley, Inc. v. Interstate &c. Ins. Co., supra at 18, this court, in discussing the operation of subsection (c), supra, quoted from the discussion in Moore’s Federal Practice of the development of Federal Rule 15 (c), the prototype of OCGA § 9-11-15 (c), as follows: “Statutes of limitations are designed to ensure that parties are given formal and seasonable notice that a claim is being asserted against them. Rule 15 (c) is based on the idea that a party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitations than one who is informed of the precise legal description of the rights sought to be enforced. If the original pleading gives fair notice of the general fact situation out of which the claim arises, the defendant will not be deprived of any protection which the . . . statute of limitations was designed to afford him. Being able to take advantage of plaintiff’s pleading mistakes is not one of [them]. . . . Rule 15 (c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitations are intended to afford.” 3 Moore’s Federal Practice, §§ 15.15 (2); 15.15 (3). Accord Gordon v. Gillespie, 135 Ga. App. 369 (217 SE2d 628) (1975); Rich’s v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975).

Decided May 29, 1990

Rehearing denied June 11, 1990

Fortson & White, Michael J. Rust, Beth H. Paradles, for appellants.

McNally, Fox, Mahler & Cameron, Patrick J. Fox, Randall K. Coggin, Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Drew, Eckl & Farnham, James M. Poe, Lokey & Bowden, Samuel P. Pierce, Jr., for appellee.

Our examination of the record before us shows that in the instant case all the requirements of OCGA § 9-11-15 (c) have been satisfied, and that appellant’s enumeration is therefore without merit. See Black & White Constr. Co. v. Bolden Contractors, supra at 806.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Birdsong, Judge.

text:
    A90A0079.
    MURPHY v. THE STATE.
    (395 SE2d 76)
   Birdsong, Judge.

Murphy appeals his convictions of child molestation by engaging in sexual intercourse with a child under 14 years of age, his neighbors’ daughter, and of incest by engaging in sexual intercourse with his daughter. He was sentenced to serve five years in prison on the first count and ten years on the second with the sentences to run consecutively. Held:

1. Murphy enumerates as error the trial court’s denial of his motion to dismiss the indictment because it was vague and overly broad as to time of the offense. The record shows that both counts of the indictment alleged that Murphy committed the offenses “on and between [the dates of] January 1, 1987, and May 10, 1987. . . .” Murphy contends that alleging the date of the offenses in this manner violates OCGA § 17-7-54 because the indictment fails to “state with sufficient certainty . . . the time and place of committing the same” as required by the code section. This enumeration is without merit. The indictment alleged specific dates as required, and, in any event, the State was not limited to proving that the offense was committed only on a specific date alleged. Keri v. State, 179 Ga. App. 664, 668 (347 SE2d 236); Carpenter v. State, 167 Ga. App. 634, 642 (307 SE2d 19), aff’d 252 Ga. 79 (310 SE2d 912).

2. For the reason expressed in Division 1, the trial court did not err by charging the jury that they could consider evidence of all offenses occurring within the four-year period of limitations. Carpenter v. State, supra. Thus, Murphy’s enumeration of error to that effect is without merit.

3. Murphy also alleges that the trial court erred by denying his motion to dismiss the indictment because of certain violations of his constitutional rights. Review of the record shows that Murphy’s motion asserted violations of his rights to due process and equal protection of the laws and of his right against cruel and unusual punishment. Since Murphy’s brief, however, argues only that he was denied equal protection of the law, the other grounds asserted in the motion are deemed abandoned. Court of Appeals Rule 15 (c).

Murphy’s argument asserts that as his daughter was sexually active with others, the prosecution of Murphy for incest without prosecuting others who had sexual relations with his daughter and his daughter for fornication, violates his right to equal protection of the laws. Assuming these allegations have some basis in fact and that such prosecutions were legally possible, Murphy’s argument nevertheless fails to state a violation of his constitutional rights because he has failed to even allege that he was prosecuted because of some unjustifiable standard based upon intentional and purposeful discrimination. See Sabel v. State, 250 Ga. 640, 643 (300 SE2d 663); Carver v. State, 185 Ga. App. 436, 438 (364 SE2d 877).

4. Murphy also contends that the trial court erred in denying his motion to sever the trial of the two offenses in the indictment. He argues that the proof presented on each count of the indictment standing alone was insufficient to gain a conviction, but together the testimony would confuse the jury and harm the appellant. We find no merit in this argument. The offenses arose from the same conduct, occurred at the same place, and were so similar that they show a common plan, scheme, and identical modus operandi. Further, as it is clear that the evidence supporting each offense would have been admissible in any trial of the other offense, Murphy was not prejudiced by the denial of his motion. Accordingly, the trial court did not abuse its discretion in denying the motion. Barber v. State, 176 Ga. App. 103, 104 (335 SE2d 594); Mack v. State, 163 Ga. App. 778 (296 SE2d 115); Gilbert v. State, 163 Ga. App. 688, 689 (295 SE2d 173).

5. Murphy also enumerates as error the trial court’s allowing testimony about sexual offenses he committed with his daughter other than that alleged in the indictment, without prior notice as required by Superior Court Rules 31.1 and 31.3. Murphy’s argument, however, does not identify that testimony of which he complains. To the extent that the testimony concerned offenses which occurred within the period of limitations, Rule 31.3 does not apply. Garrett v. State, 188 Ga. App. 176, 177 (372 SE2d 506); Bowman v. State, 184 Ga. App. 197 (361 SE2d 58). Moreover, to the extent that this enumeration concerns other evidence, we find that since the testimony concerned acts against a victim in the case which, although not immediately related in time and place, were part of a continuous pattern, and considering all the evidence of Murphy’s guilt, it is highly probable that such error, if any, did not contribute to Murphy’s conviction. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided June 11, 1990.

Ellis C. Smith, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

6. Murphy asserts that “[n]umerous errors were committed at the trial, all of which caused irreparable harm. . . .” He then asserts several such purported instances. Our law requires that enumerations “shall set out separately each error relied upon” (OCGA § 5-6-40), and accordingly, we will only address those errors separately enumerated.

We thus find that the trial court did not err by excluding evidence concerning allegations that Murphy’s daughter was flirtatious with her stepfather because the Rape Shield Statute, OCGA § 24-2-3, bars such evidence. This is not a case like Smith v. State, 259 Ga. 135, 136-138 (377 SE2d 158), in which the evidence excluded concerned false allegations of sexual abuse by the victim. Further, we note that the transcript shows that Murphy, in fact, was permitted to elicit some evidence about his daughter which he now complains was excluded, and the transcript shows that those matters which were excluded were not relevant to the issues in the case. Therefore, the trial court did not abuse its discretion by excluding such testimony.

Murphy also alleges that the trial court erred by not granting a mistrial because his ex-wife, the mother of the victim, testified that she divorced Murphy because he had sexually abused their daughter. The authorities Murphy cites concerning opinion evidence have no application here because the witness did not give an opinion. Also, we note that the comment complained of was unresponsive to the question posed by the prosecutor, and the trial court took corrective action. Further, whether to grant a mistrial is within the sound discretion of the trial court, and we will not disturb its decision absent an abuse of discretion. Buxton v. State, 253 Ga. 137, 139 (317 SE2d 538). In the context of this case, there was no abuse of discretion.

Judgment affirmed.

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


text:
    A90A0465.
    DIXIE ROOF DECKS, INC. v. BORGGREN/DICKSON CONSTRUCTION, INC. et al.
    (395 SE2d 19)
   Birdsong, Judge.

Dixie Roof Decks, Inc., appeals the grant of directed verdicts in favor of the defendants below, Borggren/Dickson Construction, Inc. and Federal Insurance Company. Appellant Dixie Roof Decks had sued Borggren/Dickson to recover retainage held under a construction contract and payment for “extras,” and sued Federal Insurance Company on the payment bond. Held:

1. The trial court did not err in granting directed verdict in favor of defendant Borggren/Dickson Construction on grounds that Dixie Roof Decks had consistently, throughout the parties’ dispute and wrangling over retainage and extra costs, refused to perform an express condition precedent to payment, to wit, had refused to deliver the roof warranty to Borggren/Dickson as expressly required by the construction contract. Inasmuch as producing the warranty was an express condition precedent to final payment under the contract, we do not see how appellant can logically contend that it could be excused from its duty to produce the warranty by Borggren/Dickson’s failure to pay or by the anticipated breach of Borggren/Dickson’s obligation to pay. Much has been made of this point by way of legal authority regarding “anticipatory breach,” but the fact is that Borggren/Dickson was not required to pay at all until Dixie Roof Decks provided the specified documentation, including the warranty. If this holding back of the warranty was “leverage” used by Dixie Roof Decks to compel Borggren/Dickson to pay the entire disputed amount, it failed completely in its objective, but resulted in the certain opposite effect of ensuring Borggren/Dickson did not have to make final payment at all.

Moreover, Borggren/Dickson could not commit an anticipatory breach which justified withholding the warranty, merely by indicating it would dispute a duty to pay certain sums, because the duty to pay did not arise until Dixie Roof Decks was to have produced the requisite documentation. Dixie Roof Decks’ position here seems to be that the bargain, or contract of the parties, was that Dixie Roof Decks would provide all warranties and documentation only if Borggren/ Dickson first agreed to pay every disputed sum. Obviously this was not the bargain. As to the effect of anticipatory breach of a construction contract generally, see Concrete Materials v. Smith &c. Co., 127 Ga. App. 817 (195 SE2d 219); but we find appellant’s position here faulty, and contrary to the clear duties under the contract, so that the verdict was demanded for Borggren/Dickson under the provisions of OCGA § 9-11-50. This reasoning applies as well to any claim for “extras.” See also Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343 (333 SE2d 618), which negates a theory of recovery for quantum meruit where there is a contract for payment between the parties.

Decided May 14, 1990.

Rehearing denied June 12, 1990

Porter & Doster, J. Alexander Porter, Richard I. Metzger, for appellant.

Varner, Stephens, Wingfield & Humphries, Timothy N. Toler, for appellees.

2. Directed verdict was also correctly granted to Federal Insurance Company. All reasonable inferences and deductions from the evidence demands a finding that this contract was completed no later than the April 5, 1987 dedication of the high school building but at least as early as the building was fully occupied and in use in December of 1986. See United States Fidelity &c. Co. v. Rome Concrete Pipe Co., 256 Ga. 661 (353 SE2d 15). Thus, Dixie Roof Decks’ failure to file its suit on the payment bond until April 20, 1988, was outside the statute of limitation of the “Little Miller Act,” at OCGA § 36-82-105.

In any case, however, Federal Insurance could not be liable on the bond if its insured was not liable, and the directed verdict in favor of Borggren/Dickson removed any such liability. The trial court’s judgment was correct.

Judgments affirmed.

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


author: Pope, Judge.

text:
    A90A0052.
    SOLOMON v. THE STATE.
    (395 SE2d 335)
   Pope, Judge.

Jerrell Solomon appeals from his conviction of the armed robbery and kidnapping with bodily injury of Thomas Cliett on October 15, 1988, and the attempted armed robbery of John Clark on October 21, 1988.

T. Defendant contends that his conviction must be reversed because the State systematically excluded blacks from the jury based solely on their race by the unlawful exercise of its peremptory strikes without a neutral explanation, in contravention of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). In order to make a Batson challenge, after showing membership in a racially cognizable group and that the prosecution used peremptory strikes to remove persons of his race from the jury, “the defendant is burdened with showing that these facts and other relevant circumstances raise an inference of the prosecution’s racial motive in the use of peremptory strikes. From this exercise the court decides whether there is a prima facie case of discrimination.” Aldridge v. State, 258 Ga. 75, 77 (4) (365 SE2d 111) (1988).

In the instant case the jury panel was 52 percent black, which generally reflected the racial composition of Peach County. Defendant used eighteen peremptory strikes of white veniremen and the State struck eight blacks from the panel, resulting in a trial jury of ten black jurors and one black alternate and two white jurors with no white alternates, or an 85 percent black jury. The trial judge expressed the opinion that defendant had not established a prima facie case of discrimination, but nevertheless required the State to explain its strikes. We agree with the trial court that no prima facie case was made and, accordingly, we need not review the findings in regard to the State’s reasons for exercising its peremptory challenges. See Williams v. State, 258 Ga. 80 (3) (365 SE2d 408) (1988). Accord Ware v. State, 191 Ga. App. 896 (1) (383 SE2d 368) (1989); Barnett v. State, 191 Ga. App. 552 (1) (382 SE2d 620) (1989); Stewart v. State, 190 Ga. App. 162 (1) (378 SE2d 387) (1989).

2. Defendant asserts that the counts of the indictment charging him with the armed robbery and kidnapping with bodily injury of Thomas Cliett merged because the crimes occurred simultaneously and the shooting of Cliett was used to effect both crimes. We do not agree. These offenses did not merge as a matter of fact or law.

Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all the facts used to prove the other. Cliett testified that defendant asked him for a ride and, as they approached their destination, drew a pistol and ordered him to drive towards a secluded peach orchard. When they got there, defendant ordered him to stop and at gun point demanded all his money. Since the use of a weapon is not an element of the offense of kidnapping, the proof of simple kidnapping was complete when defendant forced Cliett to drive away from his intended destination against his will. It was not until after Cliett handed defendant the money that defendant shot him in the leg. Thus the crime of armed robbery was also complete before defendant shot Cliett. This additional, gratuitous violence followed, and was not an element of, the already completed act of armed robbery. Compare Smith v. State, 193 Ga. App. 208 (1) (387 SE2d 419) (1989). The shooting was the bodily injury which aggravated the already completed simple kidnapping. The evidence of neither offense being necessary to prove the other, there was no merger. See Keaton v. State, 193 Ga. App. 603 (388 SE2d 737) (1989). See also Jimmerson v. State, 190 Ga. App. 759 (4) (380 SE2d 65) (1989).

Decided June 12, 1990.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

3. Defendant enumerates as his final error the insufficiency of the evidence. Both victims testified in detail about the crimes committed against them by defendant just a few days apart. Defendant’s version of what occurred was in dispute. “Although there were sharp differences between the testimonies of [defendant] and [the victims], ‘(t)he jury apparently chose to disbelieve [defendant] after weighing (his) credibility, and it was within its province to do so. (Cit.)’ [Cit.]” Walker v. State, 193 Ga. App. 446, 447 (388 SE2d 44) (1989). The evidence was more than sufficient to authorize a rational trier of fact to find defendant guilty of all three offenses under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A90A0210.
    KILGORE v. THE STATE.
    (395 SE2d 337)
   Birdsong, Judge.

Kilgore appeals his convictions and sentence for two counts of aggravated sodomy, three counts of child molestation and one count of incest. His stepdaughter was the victim of all the offenses. Kilgore was sentenced to two terms of life imprisonment and an additional 100 years confinement. All sentences are to run consecutively. Held:

1. Kilgore contends the trial court erred by excluding Exhibit D-8, under the Rape Shield Statute, OCGA § 24-2-3, because the exhibit tended to illustrate the victim’s ability to conceive images and situations of a prurient nature. The exhibit is apparently a fictional work about someone’s sexual experiences. Kilgore’s arguments that the Rape Shield Statute is unconstitutional and infringes on his right to confront the victim are without merit. Harris v. State, 257 Ga. 666, 668 (362 SE2d 211). Further, in addition to its general lack of relevancy, the exhibit clearly was to be used in an attack upon the victim’s reputation for prior sexual behavior, and thus was properly excluded under OCGA § 24-2-3.

2. Kilgore also alleges that the trial court erred by allowing testimony by his sister-in-law about an instance when he molested her and attempted to have sexual intercourse. Kilgore argues that the transactions were not similar because the instance with his sister-in-law allegedly occurred at night with his wife sleeping in the same room, and the instances with his stepdaughter allegedly occurred in the daytime with no one else present. Kilgore also alleges that his sister-in-law’s testimony was not worthy of belief. The lack of similarities Kilgore asserts are meaningless distinctions. Evidence of similar transactions is admissible when there is sufficient similarity or connection between the independent crime and the offenses charged so that proof of the former tends to prove the latter. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. Tucker v. State, 191 Ga. App. 648 (382 SE2d 425). The law, however, does not require that the crimes be identical in all respects. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged. Guffey v. State, 191 Ga. App. 501, 502 (382 SE2d 202). Considering the similarities in ages of the victims, the similarities in the offenses, and the similarities in the relationship of the victims to Kilgore, it is obvious that the trial court did not err by finding the similar transaction admissible. “ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ ” Oller v. State, 187 Ga. App. 818, 821 (371 SE2d 455).

3. Kilgore also contends that the trial court erred by allowing a nurse, who had examined the victim, to testify even though she was not on the witness list. The transcript discloses that a special prosecutor was appointed in this case because of a potential conflict of interest involving the district attorney and that this appointment may have been responsible for this omission rather than any bad faith, the special prosecutor promptly informed the defense as soon as he became aware of the omission, the witness’ name was shown on a medical report previously furnished the defense, and the trial court provided Kilgore the opportunity to interview the witness before she testified. Under the circumstances, the purposes of OCGA § 17-7-110 were satisfied and the trial court did not err by allowing the witness to testify. White v. State, 253 Ga. 106, 109-110 (317 SE2d 196).

4. Kilgore contends that the trial court erred by admitting a statement he made in evidence because he was allegedly in custody at the time the statement was made and no warnings of his Miranda rights were given before the statement was made. Review of the transcript shows that no objection to this testimony was made in the trial court, and this matter may not be raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877). Accordingly, this enumeration of error will not be considered. In any event, the transcript shows that the statement was made to the Department of Family & Children Services counselor at a time when Kilgore was not in custody. Therefore, no Miranda warnings were required.

5. Kilgore asserts that the trial court erred by allowing testimony about hearsay statements made by the victim to a witness from the Department of Family & Children Services. This assertion is without merit. This testimony was authorized by Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). Waters v. State, 192 Ga. App. 677 (385 SE2d 765).

6. Kilgore asserts that the trial court erred by allowing the prosecutor to read the indictments as part of the swearing of the witnesses. Since Kilgore objected to this procedure only during the swearing of the State’s rebuttal witness and not during the prior swearing of numerous other witnesses, we find that the issue was waived. Further, the trial judge has inherent authority to supervise the course of the trial. Palmer v. State, 186 Ga. App. 892, 895 (369 SE2d 38). Since the transcript does not reveal what, if anything, was done during the swearing of the witnesses, Kilgore has failed to establish that the trial judge abused its discretion.

7. Kilgore alleges that the trial court erred by allowing impeachment without a proper foundation. The record reflects, however, that the trial court sustained Kilgore’s objection on this issue, and the matter was not pursued thereafter. Accordingly, there was no error.

8. Kilgore also contends that the trial court erred by permitting a medical witness to testify that examination of the victim indicated that she was sexually active, but then forbidding examination about with whom the victim was sexually active. Review of the transcript shows that Kilgore did not object at trial and, in fact, acquiesced to the trial court’s ruling. Under the circumstances, no issue is presented for review. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

9. Kilgore contends the trial court erroneously ignored the jury’s question concerning time limits on its deliberation. The transcript shows, however, that the trial court questioned the foreman about the matter and apparently answered the question. Since there is no factual premise for this enumeration, it is without merit.

10. Kilgore contends that the trial court erred by denying his motion for a directed verdict of acquittal. In regard to those counts of the indictments of which Kilgore was acquitted, any such error committed was harmless. Hazelrig v. State, 171 Ga. App. 942, 943 (321 SE2d 437). Regarding the other counts, a directed verdict of acquittal is only warranted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311).

Considering this issue on appeal, we view the evidence in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Viewed in that manner, the transcript reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that the appellant was guilty of those offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 12, 1990.

Lawrence L. Aiken, Louise Thomas, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

11. Kilgore contends that the trial court erred by denying “an acquittal notwithstanding the verdict.” Pretermitting whether such action is authorized in this state, we found in Division 10, ample evidence to support Kilgore’s convictions. Accordingly, this enumeration is without merit.

12. Kilgore contends that the trial court erred by giving him an “unduly severe” sentence. The sentence imposed was within the statutory limits, and transcript shows that the trial court imposed a sentence which it believed to be appropriate in the exercise of its discretion. Although it is true that the trial judge expressed his opinion that he believed an even more severe sentence was warranted by the offenses Kilgore committed and the attitude Kilgore displayed throughout the trial, these are not grounds for reversal. Rogers v. State, 191 Ga. App. 855-856 (383 SE2d 331); Head v. State, 191 Ga. App. 262, 265 (381 SE2d 519). No error was committed.

Judgment affirmed.

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


text:
    A90A0426.
    HICKS v. THE STATE.
    (395 SE2d 341)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine with intent to distribute and sentenced to ten years in prison. On appeal he enumerates as error the trial court’s denial of his motion for a new trial and motion for a directed verdict, and the trial court’s charge to the jury on conspiracy and the degree of mental conviction necessary to find an accused guilty based on circumstantial evidence.

Appellant’s vehicle was stopped by a police officer when the officer observed appellant, the driver, making an improper turn. As the officer approached the car, he observed the appellant and a passenger in the front seat making some movements in the middle area of the front seat. The officer walked up to appellant and, in response to the officer’s questions, was informed that appellant had neither a drivers license nor proof of insurance. While the officer was talking to appellant, it appeared to the officer that the passenger had his hands in the middle of the front seat, and the officer observed a third person in the back seat of the car. The officer then walked around to the passenger side of the car, at which point, appellant, although not requested to do so, exited the car and walked over to the passenger side where the officer was standing. The officer’s report indicated that at this time he observed the passenger attempt to conceal something in a white bag. When the officer advised appellant that he was under arrest for operating a vehicle without a license and proof of insurance and attempted to handcuff appellant, appellant struck the officer in the face, pushed him in the chest, and fled on foot. The other two people in the car also fled the scene. The officer apprehended the appellant and the passenger who had been in the front seat, but the third passenger escaped. An inventory search of the vehicle yielded 5.8 grams of cocaine contained in 64 Ziploc plastic bags, all concealed in a pink sock inside a white cloth bag located in the middle of the front seat of the car.

1. In his first and second enumerations of error, appellant contends that the trial court erred in denying his motions for a new trial and directed verdict. He argues that the evidence, which was purely circumstantial, was insufficient to support the verdict. “ ‘[T]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. However, the term ‘hypothesis’ refers to ‘such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else. . . . [Cit.]” Holland v. State, 176 Ga. App. 343 (1) (335 SE2d 739) (1985). Thus, only reasonable inferences and hypotheses except the guilt of the accused need be excluded. See Chambless v. State, 165 Ga. App. 194, 195 (2) (300 SE2d 201) (1983). “Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.’ Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983). The evidence presented in this case was sufficient to authorize the finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The officer observed the appellant and the passenger making some movements in the exact area where the cocaine was found — which was in the front seat next to appellant in plain view. Denham v. State, 144 Ga. App. 373, 375 (2) (241 SE2d 295) (1977), is distinguishable because the appellant in Denham was not observed to be within plain view or within easy access of the drugs. In Denham, the circumstantial evidence connected only the passenger to the knowledge and possession of the contraband. Appellant’s voluntary exit from the car as soon as the officer changed positions, his flight, his ownership of the car, together with the other circumstances, authorized the conviction and the denial of the motions for new trial and for directed verdict was proper.

Decided June 12, 1990.

M. Randall Peek, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Assistant District Attorneys, for appellee.

2. Appellant’s assertion that there was no evidence to support the conspiracy charge is incorrect. “Slight evidence will justify a charge even where the preponderance of the evidence tends to show the nonexistence of such a fact. [Cit.] A conspiracy may be reflected by inference arising from a deduction from acts and conduct showing a common design to act together for the accomplishment of an unlawful purpose. [Cit.]” Camp v. State, 181 Ga. App. 714, 717 (3) (353 SE2d 832) (1987). The evidence introduced at the trial supported an inference of a conspiracy, and the charge thereon was correct. See Brennon v. State, 191 Ga. App. 720 (1) (382 SE2d 682) (1989).

3. The charge given by the trial court on the mental conviction necessary to convict a defendant on circumstantial evidence was a correct statement of the law (OCGA §§ 24-4-5; 24-4-6) and no error occurred.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0511.
    PLEASANT et al. v. LUTHER.
    (395 SE2d 79)
   Pope, Judge.

Plaintiff/appellee Carol Luther brought suit against defendants/ appellants Dorothy and James Pleasant seeking, inter alia, recovery of damages for diminution in value of property she leased from defendants allegedly resulting from defendants’ failure to make necessary repairs. Plaintiff subsequently amended her complaint, seeking treble damages, costs and attorney fees on the basis that defendants wrongfully converted her security deposit. (See OCGA § 44-7-35 (c)). Although the proceedings below apparently were not transcribed, the trial court, following the submission of evidence and testimony, and the consideration of post-trial briefs, entered an order awarding plaintiff $957 for diminution in value to the property, $915 ($305 trebled) for the wrongful withholding of her security deposit and $750 attorney fees. Defendants appeal, enumerating as error the trial court’s award of treble damages and attorney fees pursuant to OCGA § 44-7-35 (c). We affirm.

Decided June 12, 1990.

Divida Gude, for appellants.

1. Although it is difficult for us to ascertain what transpired in the lower court in the absence of a transcript for review, the trial court apparently allowed defendants to retain $145 of plaintiff’s security deposit as rent owing to them. Consequently, and relying on Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (3) (274 SE2d 620) (1980) and its progeny, defendants argue that the trial court erred in awarding treble damages and attorney fees on the basis that they wrongfully failed to return plaintiff’s security deposit. We find no merit to this argument. OCGA § 44-7-35 (c) provides: “Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney’s fees. . . .” (Emphasis supplied.) The statute is clear and unambiguous: if any part of the security deposit is wrongfully withheld, then the tenant is entitled to recover three times the sum improperly withheld. Here the trial court apparently determined that defendants improperly withheld $305 of plaintiff’s $450 security deposit. Cf. Kimber, supra, in which the amount of rent owing exceeded the amount of the security deposit retained. As to this finding defendants cannot be heard to complain. “Where no transcript is provided, it is presumed that the findings of the trial court were supported by the evidence. [Cit.]” Butler v. First Family &c. Corp., 191 Ga. App. 360, 361 (1) (381 SE2d 551) (1989). Consequently, the trial court’s order must be affirmed.

2. Plaintiff has requested that this court impose ten percent damages against defendants pursuant to OCGA § 5-6-6 for bringing a frivolous appeal. “However, without a transcript we are unable to carefully examine the record in the light of the entire history of the case as there presented and therefore are unable to determine whether the appeal presented a bona fide contest over a colorable matter. [Cits.] Accordingly, an award of damages is denied.” (Punctuation omitted.) Brown v. Thomas, 191 Ga. App. 679, 680 (2) (382 SE2d 656) (1989).

Judgment affirmed.

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

Ralph S. Goldberg, for appellee.


text:
    A90A0647.
    CALLAHAN et al. v. PANFEL et al.
    (395 SE2d 80)
   Banke, Presiding Judge.

This appeal is from a judgment entered on a jury verdict awarding the appellees attorney fees and other damages based on the appellants’ refusal to return an earnest money deposit owed to them.

In May 1985, the appellees, Mark Panfel and Scott Roberts, entered into a contract to purchase an apartment complex which was being offered for sale through appellant Northside Realty Associates and appellant Michael Callahan, who was a sales agent in Northside’s employ. At this time, the appellees paid Northside an earnest money deposit in the amount of $10,000. The contract specified that “if sale, due to buyer’s default, wilful or otherwise is not consummated, then said earnest money shall be refunded.”

The sale was not consummated, and in August 1985 the appellees demanded the return of the earnest money deposit. Following a period of unsuccessful negotiations to save the deal, the appellees, by letter to appellant Callahan dated September 4, 1985, and by separate letter to the employee in charge of Northside’s escrow accounts, again demanded the return of the deposit. When the money was not returned, the appellees filed an action against the appellants and the sellers alleging, among other things, that Northside had made certain fraudulent misrepresentations in connection with the negotiations and had wrongfully refused to return the earnest money in accordance with the terms of the contract. Northside responded by inter-pleading the earnest money into the registry of the court, asserting that it was “in great doubt” as to whether the buyers or the sellers were entitled to the funds; and a consent order was subsequently entered directing that the funds be returned to the appellees. The trial court thereafter granted summary judgment to all of the defendants in the action with respect to the appellees’ remaining claims, including their claim for damages based on the appellants’ wrongful refusal to return the earnest money. On appeal, this court reversed the grant of summary judgment on the latter claim, holding that the contract was unambiguous with respect to the appellees’ entitlement to the return of the earnest money and that “Northside was not entitled to interpleader as justification for withholding disposition of the funds in accordance with the contract.” Panfel v. Boyd, 187 Ga. App. 639, 643 (2) (b), 644-645 (371 SE2d 222) (1988). The case was then returned to the trial court for trial on this claim, resulting in a verdict against Callahan for $1 and a verdict against Northside for $426 in general damages, $1 in punitive damages and $6,072 in litigation expenses. Held:

1. The appellants contend that the trial court erred in directing a verdict in favor of the appellees on the issue of liability. However, inasmuch as this court expressly held in the prior appearance of the case that Northside had no legal basis for withholding the money, see Panfel v. Boyd, supra, 187 Ga. App. at 644-5, we must agree with the appellees that the court had no choice but to direct a verdict in their favor on this issue. See generally OCGA § 9-11-60 (h); Gober v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 498 (2) (382 SE2d 106) (1989). The trial court similarly did not err in allowing the jury to consider evidence of the appellees’ litigation expenses and attorney fees and in allowing their claim for such expenses and fees to go to the jury. See generally OCGA § 13-6-11. Callahan admitted during the trial that there had been no competing claims to the earnest money on the part of the sellers, and this court concluded in the prior appeal that there was “no foundation in law as to create a reasonable doubt as to [Northside’s] safety in undertaking to dispense the earnest money in accordance with the clear terms of the contract.” Panfel v. Boyd, supra at 644. Under the circumstances, the jury was authorized to determine that there had been no bona fide controversy concerning the appellees’ entitlement to the return of the money. Accord Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 607 (2) (382 SE2d 405) (1989); Jackson v. Brinegar, Inc., 165 Ga. App. 432, 437 (301 SE2d 493) (1983).

2. The appellants contend that there was no proof as to the reasonableness of the attorney fees incurred by the appellees and that the $14,000 in attorney fees sought by them was unreasonable on its face, inasmuch as it exceeded the amount of the deposit. The appellees’ evidence in this regard consisted of testimony showing the specific number of hours their attorney had worked on the claim, the hourly rates charged therefore, and opinion testimony that such rates were normal and customary. The appellants had a full and complete opportunity, which they exercised, to cross-examine the appellees’ witnesses with respect to this testimony; and the jury awarded the appellees only $6,072 of the $14,000 sought. The amount of the actual award renders moot the appellants’ contention that the amount of attorney fees originally sought by the appellees was excessive.

3. Northside contends that it was entitled to a directed verdict on the issue of punitive damages because the appellees presented no evidence of the type of wilful and wanton misconduct necessary to justify such an award, and because punitive damages may not, in any event, be awarded on a breach of contract claim. Inasmuch as only $1 in punitive damages was assessed, we are at a loss to understand why this issue is still being litigated on appeal. However, we hold that the award was authorized. This was not an action to recover damages for breach of contract but to recover damages for the wrongful conversion of an earnest money deposit. See Charter Mortgage Co. v. Ahouse, 165 Ga. App. 497 (300 SE2d 328) (1983). “Although the evidence did not demand such a finding, [the appellees] presented some evidence that [the appellants] acted in bad faith in not releasing the funds to [them] when . . . [they] requested the money,” with the result that “[a] jury question was presented as to the propriety of an award of punitive damages. [Cit.]” Id. at 499 (3).

4. Northside contends that the award of “general damages” was not authorized because it had already refunded the earnest money to the appellees prior to trial with interest at the legal rate of seven percent for the period the funds were wrongfully withheld, thus leaving the appellees with no actual damages to be recovered. This contention is without merit. “General damages are those which the law presumes to flow from a tortious act and may be awarded without proof of any specific amount to compensate plaintiff for the injury done him. [Cit.] The law infers some damage from the invasion of a property right and if no evidence is given of any particular amount of loss, declares the right by awarding what it terms nominal damages. [Cits.]” Georgia Power Co. v. Womble, 150 Ga. App. 28, 32 (3) (a) (256 SE2d 640) (1979). See also OCGA § 51-12-2 (a). “ ‘(I)n Georgia, the term “nominal damages” is “purely relative, and carries with it no suggestion of certainty as to amount. . . .” (Cit.) Instead of being restricted to a very small amount, the sum awarded as nominal damages may, according to circumstances, “vary almost indefinitely.” (Cit.)’ [Cit.]” Jones v. Padgett, 186 Ga. App. 362, 364 (4) (367 SE2d 88) (1988). See also Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977). Under the circumstances of this case, we hold that the $426 in “general damages” assessed against Northside was authorized as an award of nominal damages.

5. The appellants enumerate as error the admission of testimony by appellee Panfel to the effect that he would have been able to earn a 10-percent return on the earnest money during the period in question because that is what he was earning on his other investments at the time. The appellants contend that this testimony was inadmissible because the appellees were limited under OCGA § 7-4-2 to a recovery of interest at the legal rate of seven percent per annum, which they already had paid. However, we believe the admission of this testimony must be considered harmless inasmuch as Panfel offered no dollar estimate of the amount of additional interest which, in his opinion, he could have earned with the money, and inasmuch as no award of special damages was made in the case. See generally OCGA § 51-12-2.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided June 12, 1990.

Smith, Gambrell & Russell, Harold L. Russell, Edward H. Wasmuth, Jr., for appellants.

Goldner, Sommers & Scrudder, Glenn S. Bass, for appellees.


text:
    A90A0788.
    JONES v. THE STATE.
    (395 SE2d 83)
   Pope, Judge.

Defendant Javia Jones was charged with five counts of burglary, two counts of armed robbery, kidnapping, theft by taking, and terroristic threats and acts. Following a jury trial, he was convicted of one count of burglary, two counts of armed robbery, and kidnapping. His sole enumeration of error on appeal challenges the sufficiency of the evidence to support his conviction. We affirm.

Construed so as to support the verdict, the evidence adduced at trial showed the following: In October 1988 the lake home of Russell Peters was burglarized. Several personal items such as Navy medals with Peters’ name engraved on them, a VCR, Walt Disney video tape, and a .38 chrome revolver were taken. On the same evening, kidnapping victim, Duane M. Kitchens, had to stop his truck to move a log lying across the road when driving from his lake home. After moving the log, he turned around and found a man, subsequently identified as defendant, standing there with a shiny revolver trained on him. Defendant threatened Kitchens, took his wallet, and ordered him to drive. Defendant forced Kitchens to drive him to a wooded area in order to look for a VCR he had left there, but defendant never found it. Still at gunpoint, Kitchens was then ordered to drive to another residence, the location of a second alleged burglary by defendant. Kitchens ultimately escaped. At the police station he identified defendant in a photo line-up as his abductor. Kitchens later directed police officers to the area where defendant had looked for the VCR, and there the items from the Peters’ burglary were recovered.

A few days later James Stewart and his wife were vacationing at their cabin on Lake Sinclair, where they were confronted by defendant who was armed with a deer rifle. Mrs. Stewart escaped by running inside their trailer. Defendant demanded Stewart to give him his billfold and watch. After being handed the billfold, defendant ran. Stewart got into his truck to go call the sheriff and had to move a piece of pulpwood blocking his exit. At the sheriff’s office, Stewart identified defendant as his assailant in a photo line-up.

The only issue in this case is whether the evidence at trial was sufficient to sustain defendant’s conviction. Defendant claimed the eyewitness identification testimony was incredible and uncorroborated. However, the evidence showed that Kitchens, after spending three to four hours with defendant at gunpoint, positively identified defendant as robbing and holding him against his will. Stewart positively identified defendant as robbing him at gunpoint. Peters also testified at trial and identified the items taken from his home, including some bearing his initials. “We find that the evidence meets the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), enabling a rational trier of fact to convict [defendant of armed robbery, burglary, and kidnapping].” Middlebrooks v. State, 191 Ga. App. 542, 543 (1) (382 SE2d 385) (1989).

Decided June 12, 1990.

J. Philip Carr, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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