text:
    A90A1408.
    TOWNSEND v. NATIONAL UNION FIRE INSURANCE COMPANY.
    (397 SE2d 61)
   Beasley, Judge.

Townsend appeals the grant of summary judgment to defendant insurance company in his suit to recover no-fault insurance benefits, plus penalties, attorney fees, and punitive damages under OCGA § 33-34-6. Townsend allegedly sustained back injuries while attempting to dump sand from his employer’s dump truck at a concrete yard in Florida. The insurer contended, inter alia, that the claim was barred by the Florida statute of limitation. It further asserted that regardless of whether Florida or Georgia law applied, it was entitled to summary judgment since plaintiff failed to notify it of the claim “as soon as practicable,” as required under the policy. The trial court did not state the basis for its grant of summary judgment and dismissal of the complaint.

Regardless of whether Georgia or Florida law governs, the complaint is barred. The injury allegedly occurred on June 1, 1983, and the complaint was not filed until approximately six years later on May 26, 1989. Florida Code § 95.11 provides a limitation of five years.

As to Georgia law, the insured first notified the insurer on March 15, 1989, nearly six years after the incident. Both the Florida and Georgia personal injury protection endorsements provided that no action would lie against the insurer unless there had been full compliance with all terms of the insurance coverage. Both endorsements contained a condition that in the event of an accident, written notice of the accident or loss be given to the insurer “as soon as practicable.”

Whether or not the condition has been met is not always a jury question because an unexcused significant delay may be unreasonable as a matter of law. See Bates v. Holyoke Mut. Ins. Co., 253 Ga. 697 (324 SE2d 474) (1985) (forty-three-month delay); see also Protective Ins. Co. v. Johnson, 256 Ga. 713, 714 (1) (352 SE2d 760) (1987) (seventeen-month delay); International Indent. Co. v. Smith, 178 Ga. App. 4, 5 (1) (342 SE2d 4) (1986) (fifty-two-month delay).

Townsend’s only excuse for the nearly seventy-month delay in notice to the insurer was that he was not aware he might be entitled to the no-fault benefits until 1989 and that he did not know the name of the carrier insuring the truck. The law requires more than ignorance of the terms of a valid insurance contract in order to avoid them. See Protective Ins. Co., supra at 714 (1) and International Indem. Co., supra at 5 (1). Prejudice or the lack thereof to the insurer is not a factor in assessing whether or not the delay in notice is excusable and the ultimate determination of its being reasonable, i.e., “as soon as practicable.” See Bates, Protective Ins. Co., and International Indent. Co., supra; see also Golder v. United Svcs. Auto. Assn., 177 Ga. App. 194, 195 (1) (338 SE2d 771) (1985).

Decided September 6, 1990.

W. Douglas Adams, for appellant.

Dickey, Whelchel, Brown & Readdick, John E. Bumgartner, for appellee.

Appellant’s legally inexcusable delay in notifying the insurer of his mishap was unreasonable as a matter of Georgia law. The insurer was entitled to summary judgment.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1128.
    ANDREWS v. THE STATE.
    (397 SE2d 63)
   Beasley, Judge.

Defendant was convicted of selling cocaine, OCGA § 16-13-30 (b), and enumerates as error the court’s permitting the State’s expert witness to identify the substance and state the basis for her conclusion, over his objection.

Before trial defendant invoked OCGA § 17-7-211 for copies of all scientific reports. He was given a document titled “official report.” It described two plastic bags received from the undercover agent and stated the final conclusion of the examining forensic chemist, that the substance in each bag was “positive for cocaine.”

During trial the chemist identified the substances sold to an undercover agent as being cocaine. She stated that she performed three tests, thin layer chromatography, gas chromatography and mass spectroscopy, and the results were all positive. This constituted the basis for her opinion and, together with her qualifications, comprised her entire testimony on direct.

Defendant cross-examined her about the existence of notes and test results generated when she tested the substance which were not given to the district attorney and thus not furnished to defendant. Defendant, objected to the allowance of the chemist’s testimony on the ground that the State had not supplied him with all the scientific reports as required by OCGA § 17-7-211. The objection was overruled.

Defendant relies upon Durden v. State, 187 Ga. App. 154, 156 (369 SE2d 764) (1988), for his argument that all test results, and not merely the ultimate conclusion reached by the scientist, must be furnished on penalty of exclusion of the expert’s testimony. Although that decision contains broad language, as do the subsequent cases of Box v. State, 187 Ga. App. 260 (370 SE2d 28) (1988), and Camarata v. State, 188 Ga. App. 41, 42 (1) (371 SE2d 885) (1988), they do not control here.

Decided September 7, 1990.

James A. Nolan, for appellant.

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

The proscription of the code was applied in Durden, supra at 158, because “the scientific evidence which was denied to the defense, in fact comprised the entire substance of the State’s case.” Here, the State’s evidence was not quantitative but related solely to whether the substance was or was not cocaine. Identity of the substance was the issue; quantity and quality were not. The report included what the expert testified, that the substance tested positive for cocaine.

Carson v. State, 192 Ga. App. 52 (1) (383 SE2d 619) (1989), distinguished the three earlier cases as involving attempts to prove amount of substance and degree of impairment, so that merely reporting presence of substance was insufficient. In this case the State limited its examination of the expert to the identity of the substance, which conclusion was contained in the report. Carson controls. Documents generated by each of the tests performed were not required. “The penalty the State suffers for failure to furnish a copy of a report is the exclusion of that report from evidence.” (Emphasis supplied.) Law v. State, 251 Ga. 525, 528 (307 SE2d 904) (1983).

Moreover, defendant failed to demonstrate the availability of further scientific reports as described by OCGA § 17-7-211. The Code section does not mandate that notes, graphs, preliminary tests and work product be furnished because they do not constitute scientific reports. Williams v. State, 251 Ga. 749, 754 (312 SE2d 40) (1983); State v. Madigan, 249 Ga. 571, 574 (292 SE2d 406) (1982); Dye v. State, 177 Ga. App. 813, 814 (3) (341 SE2d 469) (1986); Walker v. State, 168 Ga. App. 130, 131 (3) (308 SE2d 404) (1983); Sears v. State, 161 Ga. App. 515, 516 (288 SE2d 757) (1982); Hartley v. State, 159 Ga. App. 157, 158 (2) (282 SE2d 684) (1981).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Birdsong, Judge,

text:
    A90A1215.
    LEE v. NORTH AMERICAN LIFE & CASUALTY COMPANY et al.
    (397 SE2d 64)
   Birdsong, Judge,

Mrs. Lee brought this action against appellee and another credit life insurance company (“the companies”) after the denial of her claim for benefits under a credit life insurance policy on her deceased husband. She contends that her husband had a contract of credit life insurance with the companies which they breached by denying the claim, and that the companies fraudulently accepted the Lees’ application for insurance, fraudulently retained the premiums, and failed to inform the Lees that they were not eligible for the insurance. Mrs. Lee also alleged that the companies intentionally caused her emotional distress.

The companies moved for summary judgment contending that they did not issue Mr. Lee an insurance policy because he was too old at the time he applied, that although they issued a policy to Mrs. Lee, this policy was canceled when they learned that she had no insurable interest in the house, and that their actions were in accordance with law. Mrs. Lee’s response to the motion relied upon the deposition testimony of a witness who was purportedly an expert in insurance matters.

Construing the evidence most favorably for Mrs. Lee, the record shows that Mr. Lee received a mailing from his mortgage company offering credit life insurance to persons below the age of 65 who owed a debt to the mortgage company. Mr. Lee completed and submitted the application for himself and Mrs. Lee as co-applicants. At the time the application was submitted, however, Mr. Lee was older than 65 and thus was not eligible for the insurance. Consequently, the notation “OVERAGE” was written across his portion of the application, and a certificate of insurance issued only for “M. Lee” showing Mrs. Lee’s birthdate in the section for the insured’s birthdate. Mr. Lee’s first initial was “J.,” not “M.” The premium collected was only the amount due for one insured. The record also reflects that the application showing the “OVERAGE” over Mr. Lee’s portion was returned to the Lees with the certificate of insurance.

The record also shows that Mr. Lee owned the home in his own name only, and that only Mr. Lee was obligated on the mortgage. When Mr. Lee died, Mrs. Lee submitted a claim for the policy benefits which was denied because no coverage existed for Mr. Lee. In the processing of his claim, it became apparent that Mrs. Lee had no insurable interest, and as a result, her policy was canceled and the premiums paid were returned with interest.

The companies’ motion was granted, and Mrs. Lee now appeals contending this was error. She asserts that it was error for the trial court not to consider the testimony of her expert witness; and that a question of fact remains whether she was an insured under the policy, whether the companies breached a duty owed her, and whether the companies converted her money so as to constitute the intentional infliction of emotional harm. Held:

1. Mrs. Lee places great emphasis on the trial court’s having found her witness to be an expert on insurance matters in another case. Such a finding, however, does not mean that the witness was an expert in all areas of insurance company practices for all time. Moreover, even if an insurance expert, the witness could not testify on matters which were not relevant or material (Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709)), which were legal conclusions (Allison v. State, 256 Ga. 851, 853 (353 SE2d 805); Nichols v. State, 177 Ga. App. 689, 692-693 (340 SE2d 654)), or were outside his particular area of expertise. Southern R. Co. v. Cabe, 109 Ga. App. 432, 442 (136 SE2d 438). Therefore, the trial court did not err by excluding the witness’ testimony. This witness had no expertise in the type of insurance matters in question, and for the most part, his deposition testimony constitued nothing more than his personal views on the case.

2. The trial court did not err by granting summary judgment to the companies on Mrs. Lee’s claims. The record demonstrates no policy of credit life insurance was ever issued on Mr. Lee’s life. Consequently, there was no policy, and Mrs. Lee has no entitlement to any policy proceeds. Georgia Cas. &c. Co. v. Hardrick, 211 Ga. 709, 712 (88 SE2d 394); Protective Life Ins. Co. v. Robinson, 193 Ga. App. 316, 317-319 (387 SE2d 603); Appling v. Home Fed. Sav. &c. Assn., 185 Ga. App. 356, 358-360 (364 SE2d 91).

Further, the record shows the policy on Mrs. Lee’s life was canceled before any beneficiary became entitled to the policy proceeds. Therefore, she is not entitled to the proceeds of that policy. Consequently, whether the companies breached some unspecified duties owed Mrs. Lee, or whether she was insured under a policy, she has suffered no loss or has no entitlement to .any benefits.

Moreover, the record amply demonstrates that Mrs. Lee cannot establish a claim for fraud or intentional infliction of emotional distress. The companies’ actions in this case do not constitute those required for an action for fraud, since there were no misrepresentations made with the intent to deceive, nor do they constitute the egregious misconduct necessary to sustain an action for infliction of emotional distress. Bennett v. Clark, 192 Ga. App. 698, 699- (385 SE2d 780); Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 224 (369 SE2d 541).

Therefore,, the companies met their burden under OCGA § 9-11-56, and the trial court did not err by granting them summary judgment.

Decided September 7, 1990.

Thomas R. Herndon, for appellant.

H. Pearce Scott, John M. Tatum, Booth, Wade & Campbell, Brian J. Morrissey, Douglas N. Campbell, for appellees.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A1267.
    GURLASKIE v. THE STATE.
    (397 SE2d 66)
   Birdsong, Judge.

Gurlaskie appeals his conviction and sentence for aggravated assault by shooting his wife in the face with a shotgun. Gurlaskie alleges that he was just playing a joke and that the shooting was accidental. Held:

1. Gurlaskie contends the prosecution did not prove his guilt beyond a reasonable doubt because there was no proof he intentionally shot his wife with the shotgun. He relies on his own testimony that he was playing a joke on his wife and did not intend to shoot her and the victim’s testimony labeling the event an accident, i.e., an event transpired about “a year before the accident.” The victim, however, testified that after an evening of argument, Gurlaskie slammed open the door, pointed the shotgun at her, said “you deserve this,” and then the gun fired. Pellets from the shot struck the victim’s face and the bed in which she had been sleeping.

After a Jackson v. Denno hearing, the prosecution introduced statements Gurlaskie made to the police. In particular, the investigating officer testified that Gurlaskie stated: “She didn’t think that I’d shoot her, so, I got a shotgun, I went into the bedroom and I shoot [sic] the bitch” and “I wished I had killed the bitch, but I don’t think I did.”

“On appeals from findings of guilt, the presumption of innocence no longer prevails, the fact finders have determined the credibility of witnesses, the fact finders have been convinced beyond a reasonable doubt, and the appellate courts review the evidence only to determine if there is any evidence sufficient to authorize the fact finder to return the verdict of guilty. [Cits.]” Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131). On appeal we view the evidence in a light most favorable to the verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), and we do not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Review of the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that [Gurlaskie] was guilty of [aggravated assault] as charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (363 SE2d 257).

Decided September 7, 1990.

John H. Tarpley, for appellant.

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

2. Gurlaskie also alleges the trial court erred by allowing testimony about Gurlaskie’s statements because the prosecution failed to prove that Gurlaskie knowingly and intelligently waived his right to counsel. This allegation is based on the absence of Gurlaskie’s signature on the rights waiver form and the argument that Gurlaskie was too intoxicated to have knowingly and intelligently waived his rights. The only evidence before the trial court in the Jackson v. Denno hearing, however, was the officer’s testimony, the rights waiver form, and the officer’s summary of Gurlaskie’s statement.

The officer testified that he properly advised Gurlaskie of his rights to counsel, that Gurlaskie waived his rights and agreed to make a statement, but that Gurlaskie refused to sign the rights waiver. The officer also testified he did not believe Gurlaskie to be too intoxicated to make a statement and testified about the facts underlying his belief. After considering this evidence, the trial court found that Gurlaskie was able to carry on a coherent conversation, that he understood his rights, that he waived his rights, and that the statements could go to the jury.

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous. The trial court’s ruling was not clearly erroneous.” (Citations and punctuation omitted.) Brown v. State, 259 Ga. 453, 454 (383 SE2d 882). See Carter v. State, 257 Ga. 510, 513 (361 SE2d 175); Durden v. State, 250 Ga. 325, 327 (297 SE2d 237); Thaxton v. State, 184 Ga. App. 779, 781 (362 SE2d 510). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

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


text:
    A90A1326.
    HARRIS v. THE STATE.
    (397 SE2d 68)
   Birdsong, Judge.

Harris appeals his conviction of possession of cocaine with the intent to distribute. He was sentenced as a recidivist to 30 years in prison. Held:

1. Harris first enumerates as error the failure of the trial court to warn Harris of the disadvantages of self-representation before letting him proceed without counsel. See Clarke v. Zant, 247 Ga. 194 (275 SE2d 49). The record shows that Harris was first represented by appointed counsel, discharged that attorney and hired counsel at his own expense, and in the midst of jury selection announced that he wanted to fire that attorney and have a continuance while he found another attorney. After being dissuaded from doing so at that time, he proceeded further with counsel but later fired his attorney. The record also shows that the attorney remained in the courtroom and on occasion assisted Harris.

Harris’ real complaint is that the trial court did not follow the specific procedures established in Clarke v. Zant, supra. In Singleton v. State, 176 Ga. App. 733 (337 SE2d 350), we held that the failure to use the exact language of Clarke v. Zant was not reversible error, and in Callahan v. State, 175 Ga. App. 303, 304 (333 SE2d 179), we held each case must be determined by “its own peculiar facts and circumstance.” Considering the record before us, we are satisfied that it shows sufficiently that Harris’ choice was made after he was aware of his right to counsel and that he was aware of the dangers of proceeding without counsel. Id. Accordingly, there was no error here. Evans v. State, 192 Ga. App. 832, 833 (386 SE2d 712); Williams v. State, 192 Ga. App. 317, 318 (384 SE2d 877).

2. Harris also complains that the trial court erred by not granting a continuance because the State belatedly amended the witness list. The record shows that although the trial court permitted the witness list to be amended, it directed that appellant would be given the opportunity to interview the witness before he testified. Under the circumstances, a continuance was not required, and there was no error. White v. State, 253 Ga. 106, 109-110 (317 SE2d 196).

3. Harris alleges that the trial court erred by denying his motion in limine which sought to exclude the testimony of a Captain Wheeler because it was immaterial and prejudicial and also erred by allowing Captain Wheeler’s testimony since it concerned custodial statements allegedly made by Harris without proper Miranda warnings. The transcript shows that Captain Wheeler testified, without objection, that he talked with Harris about a threat Harris allegedly made against a person Harris believed to be an informant in an effort to persuade Harris that this other person was not the informant. In the course of that conversation, Harris volunteered to Captain Wheeler that he was going to kill this other person if he was the informant.

Decided September 7, 1990.

Lawson, Washington & Thornton, Charles S. Thornton, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Since this testimony was obviously relevant and material (OCGA § 24-2-1; Fancher v. State, 190 Ga. App. 438, 439 (378 SE2d 923)), denying the motion in limine was not error. Further, as there was no contemporaneous objection to Captain Wheeler’s testimony, there is nothing else for us to review on whether Harris was properly warned. McNair v. State, 190 Ga. App. 412, 413 (379 SE2d 424). An issue may not be raised for the first time on appeal. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

4. Finally, Harris contends that the trial court erred by allowing the State to introduce evidence of similar transactions in which Harris possessed drugs. We find no error.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Emphasis deleted.) Oller v. State, 187 Ga. App. 818, 819 (371 SE2d 455). Before such evidence may be admitted, however, there must be evidence the defendant was the perpetrator of the independent crime and sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). Under the circumstances of this appeal, these conditions were satisfied, and the trial court did not err by admitting this evidence.

Judgment affirmed.

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


text:
    A90A1354.
    BARNES v. THE STATE.
    (397 SE2d 70)
   Birdsong, Judge.

Barnes appeals his conviction of possession of cocaine with intent to distribute. He alleges that the verdict is contrary to law, contrary to the evidence, and against the weight of the evidence because there was no evidence that he possessed cocaine on the date alleged as material in the indictment. He also contends the trial court erred by not granting a mistrial because the State improperly put his character in issue, erred by denying his motion for a directed verdict of acquittal, and erred by denying his motion for a new trial. Held:

1. Barnes’ allegations are based on his contention that on May 17, the date alleged in the indictment as material, he did not possess any drugs with or without the intent to distribute, because he was not found in actual physical possession of cocaine. Thus he argues that he cannot be convicted for merely being in the vicinity of the cocaine. See Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645). The State’s evidence, however, was not merely that Barnes was in the vicinity of the drug. Instead, Barnes’ two roommates testified that they were all three jointly in the business of selling drugs and that they each sold drugs for the benefit of the others. For example, the roommates testified that when one had drugs they all had drugs, that on May 17 the drugs were at the house to sell, that Barnes was involved in deciding what drugs to sell, that all three had been selling drugs like this for months. “Possession of contraband may be actual or constructive. Hadden v. State, 181 Ga. App. 628 (1) (353 SE2d 532) (1987). Moreover, joint constructive possession with another will sustain a conviction for possession of contraband.” Allen v. State, 191 Ga. App. 623, 624 (382 SE2d 690).

Although a person may not be in actual possession of a drug, if he knowingly has the power and intention at the time to exercise dominion or control over the drug, he is in constructive possession of it. Further, the law of this state recognizes both joint and sole possession. See Allen v. State, supra; Anderson v. State, 166 Ga. App. 459, 460 (304 SE2d 550). The testimony of Barnes’ two roommates was sufficient to authorize the jury to conclude that Barnes and his roommates were in joint constructive possession of the cocaine. Therefore, we find that any rational trier of fact could have found that Barnes was guilty of possession of cocaine with the intent to distribute beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rowe v. State, 184 Ga. App. 437, 438 (361 SE2d 705).

2. Barnes also asserts that the trial court erred by denying his motion for a mistrial because the prosecution put his character in issue by introducing evidence from his roommates about the prior drug sales and their business of selling drugs. “[W]hether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508).” Buxton v. State, 253 Ga. 137, 139 (317 SE2d 538). There was no abuse of the trial court’s discretion because the evidence Barnes complains of was clearly admissible. “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” Oller v. State, 187 Ga. App. 818, 819 (371 SE2d 455). The testimony of Barnes’ roommates met both conditions for admissibility of this evidence (see Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515)), and the evidence’s relevance outweighed any prejudicial impact it might have. Accordingly, the trial court did not err by denying Barnes’ motion for a mistrial.

Decided September 7, 1990.

Larry B. Mims, for appellant.

David E. Perry, District Attorney, A. Douglas Newsome, Assistant District Attorney, for appellee.

3. Barnes contends the trial court erred by denying his motion fot a directed verdict of acquittal since he contended there was no evidence that he possessed the cocaine in question and erroneously denied his motion for a new trial based on the issues raised in his first three enumerations of error. For the reasons discussed above, neither of these enumerations has merit.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A0840.
    MILLIS v. THE STATE.
    (397 SE2d 71)
   Cooper, Judge.

Appellant appeals his conviction of armed robbery.

1. In his first enumeration of error, appellant contends the trial court erred in allowing the State to improperly place his character in issue. A review of the record reveals that appellant objected to the admission of a statement he made while in police custody following his arrest in which appellant indicated that the reason he took a car was “because [he] thought there was a warrant for [him] in Walton County, and [he]’d disappear for a while.” The trial court ruled the statement was admissible as to “intent, motive and conduct” and “even though it may place character in issue — it’s admissible in his statement to show why he wanted this automobile.” On appeal, appellant contends the statement was a gratuitous introduction of irrelevant and prejudicial material and that it violated the prohibition against the admission of evidence of bad character unless a defendant puts his character in issue first. OCGA § 24-9-20 (b). We disagree. Appellant’s statement was clearly relevant to motive, intent and course of conduct and was not rendered inadmissible because it incidentally placed appellant’s character in issue. Stitt v. State, 256 Ga. 155 (1) (345 SE2d 578) (1986). The trial court did not err in admitting the statement.

2. Appellant also maintains that a police officer’s reference to a “felony stop” also improperly placed his character in issue. The officer testified that due to the gravity of the charge and the outstanding felony warrant for the appellant, when he located the car and confirmed the tag number and color of the car, he performed a felony stop, which the record indicates is a general procedure utilized when an officer anticipates some danger in arresting an individual. Overruling appellant’s objection to the reference, the trial court concluded that the reference did not place appellant’s character in issue, but it explained the officer’s conduct at the arrest. The evidence is uncontroverted; the term “felony stop” merely describes a police procedure and its use does not impliedly mean that appellant was highly dangerous or generally prone to criminal conduct. This enumeration is without merit.

3. Appellant enumerates as error the trial court’s refusal to charge on the lesser included offense of robbery by intimidation. “While robbery by intimidation is an offense included within armed robbery [see OCGA § 16-8-41 (a); [cit.]], a charge on the included offense was not required where the uncontradicted evidence showed completion of the offense of armed robbery. [Cit.]” Kirkland v. State, 173 Ga. App. 687 (2) (327 SE2d 808) (1985). Appellant argues that because there was conflicting evidence as to whether or not appellant actually pointed a gun at the victim, the jury was entitled to consider the lesser included offense. In his statement to the police, appellant claimed he pulled his coat back to show the victim he had a gun in his belt; however, the victim and a witness testified that appellant pointed the weapon at the victim, although neither could describe the gun. In Hughes v. State, 185 Ga. App. 40 (363 SE2d 336) (1987), we held that it was not essential that a weapon be seen or be accurately described by the victim to support a conviction of armed robbery as long as there was “some physical manifestation of a weapon” or “some evidence from which the presence of a weapon may be inferred.” Id. at 41. The trial court, therefore, did not err in refusing to charge robbery by intimidation. See Williams v. State, 191 Ga. App. 913, 915 (4) (383 SE2d 344) (1989).

4. Appellant argues that by instructing the jury to be particularly attentive during the reading of appellant’s statement, the trial court erred in over-emphasizing the statement, giving it undue credit and severely prejudicing appellant’s case. The page of the transcript cited by appellant did not reveal any erroneous instructions given by the trial court. On the following page, however, at the request of the State, the court did advise the jury that the statement would not go out with them and that it should be given whatever weight they saw fit. The instruction did not direct the jury to be particularly attentive, nor did it advise that extreme attention was needed. “It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record.” (Punctuation omitted.) State v. O’Quinn, 192 Ga. App. 359, 360 (1) (384 SE2d 888) (1989). Appellant has not met his burden and “[i]t is not the function of this court to cull the record on behalf of a party in search of instances of error.” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709) (1989). This enumeration of error is without merit.

Decided September 10, 1990.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

5. Finally, appellant enumerates as error the trial court’s failure to charge the jury pursuant to OCGA § 15-12-138 which is the oath of the jury panel in civil cases. There is no authority requiring the jury to receive this charge in a criminal case. The record shows that the jury was duly sworn pursuant to OCGA § 15-12-139. This enumeration is utterly without merit.

Judgment affirmed.

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


text:
    A90A0744.
    THOMSON v. SEARS ROEBUCK & COMPANY, INC.
    (397 SE2d 151)
   Birdsong, Judge.

Thomson appeals from the grant of summary judgment to Sears Roebuck on her claim for damages she incurred when she stubbed her toe on a wooden pallet. Held:

Thomson alleges that summary judgment was erroneously granted because the trial court misapplied the law applicable to premises liability claims arising from dangerous transitory conditions. The record shows that Sears’ motion for summary judgment was supported by Thomson’s deposition testimony that she was leaving the store after making a purchase when she saw a wooden pallet partially blocking the aisle about twenty feet away. Thomson testified that the pallet was obvious, in clear view, with nothing hiding it. She testified that the pallet appeared to be four feet by four feet on the sides and about four or five inches high. She also testified that about the time she reached the pallet other people were passing from the opposite direction, and she attempted to move over and squeeze by the pallet.

When she picked up her foot and moved it to make the next step, her foot hit the pallet and she stubbed her toe on the edge of the pallet. Thomson testified that she thought she had picked up her foot enough to miss the pallet, but she did not. Thomson also testified that she did not fall and she left the store without complaining to anyone.

Decided September 5, 1990.

Joseph A. Maccione, for appellant.

James C. Carr, for appellee.

Thomson argues that the trial court should not have granted summary judgment because Sears knew the pallet was there and created an unnecessary risk for her by placing the pallet where it would partially block the aisle. We disagree.

“An invitee must also exercise ordinary care for [her] own safety.” Chisholm v. Fulton Supply Co., 184 Ga. App. 378, 379 (361 SE2d 540). Sears was under no obligation to protect Thomson from patent and obvious dangers she could see and could avoid on her own. D. J. Powers Co. v. Hendry, 190 Ga. App. 297, 298 (379 SE2d 1). In this case Thomson saw the pallet from a great distance away, knew that it would be difficult to pass the pallet with people coming from the other direction, and yet decided to squeeze past it rather than wait until she could simply walk past. Her own deposition testimony reveals that the reason she hit the pallet was that she did not pick her foot up enough. She is not entitled to recover on this claim. Tuck v. Marriott Corp., 187 Ga. App. 567, 568 (370 SE2d 795). See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327).

Because of the patent and unexplained inconsistencies between Thomson’s deposition and her affidavit submitted in response to Sears’ motion for summary judgment, the trial court properly construed her affidavit against her. Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). Accordingly, Thomson’s enumerations of error are without merit and the trial court did not err by granting Sears’ motion for summary judgment. OCGA § 9-11-56; Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670).

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A90A0793.
    RYDER FREIGHT SYSTEMS, INC. et al. v. WILLIAMS.
    (397 SE2d 152)
   Sognier, Judge.

Alvis Eugene Williams brought suit against Ryder Freight Systems, Inc., as successor in interest to his employer, Interstate Contract Carrier Corporation (ICCC), and against Ryder Services Corporation and Continental Insurance Company to recover personal injury protection (PIP) under an automobile insurance policy issued to ICCC by Continental for injuries Williams sustained while repairing a truck provided by his employer. We authorized the defendants’ interlocutory appeal from the denial of their motion for summary judgment.

The parties agree that appellee was employed as a truck driver by ICCC and Linda Elam, who is not a party to this action. Appellee was injured on February 27, 1985 while repairing the headlight on the truck assigned to him. After settling his workers’ compensation claim and executing a release, he then brought this action to recover PIP benefits either from appellant Ryder Freight under its program of self insurance appellee alleged was maintained or pursuant to the automobile insurance policy issued by appellant Continental to ICCC for the relevant time period.

1. Appellants contend the trial court erred by denying their motion for summary judgment because the evidence clearly established that the truck was owned by Elam, not by ICCC or any other appellant, and the Continental policy issued to ICCC provided PIP benefits only for vehicles owned by ICCC. We agree and reverse.

First, there is no material dispute that appellant Ryder Freight and its predecessor, ICCC, did not own the truck. Appellants presented the affidavit testimony of John Hill, a Continental adjuster, who testified that the vehicle in question was owned by Elam, not by ICCC. In addition, during his deposition appellee testified in response to questions from his counsel that Elam owned the truck and leased it to ICCC. Although appellee stated in his brief filed in opposition to appellants’ summary judgment motion that he would provide evidence to contradict appellants’ proffered evidence on the ownership issue, there is no indication that any such evidence was filed with the trial court. “ ‘On a motion for summary judgment, the movant carries the burden of proving that there are no genuine issues of fact requiring jury resolution and that he is entitled to judgment as a matter of law. (Cit.) . . . The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.)’ [Cit.]” Phillips v. Plymale, 191 Ga. App. 338, 340 (1) (381 SE2d 580) (1989). As appellants presented a prima facie case on the only disputed factual issue, the ownership of the truck, and appellee failed to present any rebuttal evidence, we find the trial court erred by concluding that a material factual dispute remained.

Second, contrary to appellee’s assertions, there is no dispute that appellants neither provided nor were required to provide PIP coverage for the truck. The Continental policy, which was attached to Hill’s affidavit, unequivocally stated that PIP benefits were provided “[o]nly [for] those autos [ICCC] own[s] which are required to have No-Fault benefits in the state where they are licensed or principally garaged.” Georgia law requires that the minimum no-fault coverages, including PIP coverage, be provided by the vehicle owner. OCGA § 33-34-4 (a); Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693-694 (353 SE2d 186) (1987). Because the responsibility for providing no-fault insurance in Georgia rested with Elam, the vehicle owner, not with ICCC, the truck clearly was not covered by the Continental policy, and as a matter of law there is no PIP coverage required to be provided by appellants against which appellee could recover on the claim at issue. Accordingly, appellants are entitled to summary judgment.

Decided September 5, 1990.

McLain & Merritt, Howard M. Lessinger, for appellants.

John W. Folsom, McDaniel, Bodker, Ramsey & Andrews, John R. Gaughen, for appellee.

2. As a result of our ruling in Division 1, we need not consider appellants’ remaining enumeration of error.

Judgment reversed.

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


text:
    A90A0831.
    ADAMS v. THE STATE.
    (397 SE2d 153)
   Sognier, Judge.

Dane Adams was convicted of possession of cocaine with intent to distribute and possession of a firearm by a convicted felon, and he appeals.

1. Appellant contends that the trial court erred by failing to conduct a hearing to determine whether the disclosure of the informant’s identity was material to the defense. The transcript reveals that after a confidential informant made a controlled buy of crack cocaine at an apartment in Macon, Officer Johnny Prater obtained a search warrant, which he and other officers executed. The contraband and firearm seized during the search form the bases of the indictments brought against appellant. Discovery motions, including a general Brady motion (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)), were filed on behalf of appellant in the case pursuant to a standing court order, which also referenced the “open file” policy of the local district attorney’s office in relation to criminal cases in that circuit. The order also required notice to be filed should the district attorney intend not to comply with the discovery motions. No such notice of noncompliance was filed, and there is no evidence the State denied appellant any material he sought. The record reflects that appellant made no motion to suppress the evidence seized during the search, and no other motion to compel disclosure of the informant’s identity was paired with the Brady motion. Compare Crumbley v. State, 189 Ga. App. 384, 385 (2) (375 SE2d 482) (1988). Upon trial of the charges, appellant announced ready, expressed no dissatisfaction with the discovery conducted, and raised no objection to the failure of the trial court to conduct a hearing on any issue. Other than a hearsay objection to testimony by Prater regarding what the informant had told Prater after the controlled buy, neither appellant nor appellant’s co-defendant objected at trial to the State’s evidence involving the informant or requested any witness to identify the informant.

Appellant cites Thornton v. State, 238 Ga. 160, 162-166 (2) (231 SE2d 729) (1977) in support of his argument that the trial court’s failure to conduct a hearing on the identity of the informant was error. In Thornton, “[a Brady] motion was made prior to trial requesting [the disclosure of the identity of the informer].” Id. at 162 (2). By noting that the disclosure request in the context of a Brady motion raised a “novel” question, id., the Supreme Court in Thornton indicated that a general Brady motion does not normally encompass the disclosure of the identity of a confidential informant. See also Moore v. State, 240 Ga. 807, 814-815 (6) (243 SE2d 1) (1978) (State’s disclosure of some items in file and trial court’s in camera inspection of remainder meant “the trial court did all that it could and all that was required of it initially under [Brady]”). This is borne out by an examination of cases following Thornton, in which it appears the defendants’ Brady motions either contained a request for the disclosure of the informants’ identities or else were accompanied by another motion seeking that information. See, e.g., Moore, supra (disclosure of informant’s identity sought orally at trial even though Brady motion filed earlier); State v. Royal, 247 Ga. 309, 312-314 (2) (275 SE2d 646) (1981) (defendant’s Brady motion sought disclosure of informant’s identity); Davidson v. State, 156 Ga. App. 457, 459-460 (3) (274 SE2d 807) (1980) (motion to suppress and Brady motion); State v. Martin, 156 Ga. App. 554, 555 (275 SE2d 129) (1980) (physical precedent in which motion to disclose identity of informer was paired with a Brady motion for exculpatory material); Brinson v. State, 188 Ga. App. 214-215 (1) (372 SE2d 487) (1988) (oral request raised at trial). In Holmes v. State, 187 Ga. App. 214 (1) (369 SE2d 533) (1988), the appellant therein asserted that the trial court erred by failing to hold a hearing pursuant to his Brady motion as to the identity of the informant. We noted that “[a]ppellant’s Brady motion did not contain a request for a hearing on disclosure of the informant’s identity,” Holmes, supra, and addressed only the matter raised before the trial court.

Decided September 5, 1990.

Ann P. Dodson, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

The only case research has uncovered which indicates a general Brady motion encompasses a motion for the disclosure of an informant’s identity is May v. State, 179 Ga. App. 736, 737 (3) (348 SE2d 61) (1986). In that case the appellant sought in his Brady motion “the ‘names, addresses, ... of all persons known to the State of Georgia as having information or knowledge of the facts . . . including those witnesses to be called by the State (and) those persons the State of Georgia does not intend to call as witnesses. . .[.]’ ” Id. In May, however, the identity of the informant was also sought by appellant during his trial. We find May distinguishable from the case sub judice in that here the identity of the informant was never requested during trial. May is further distinguished by the differing language in the discovery motions, since the motion filed in the case at bar on appellant’s behalf pursuant to standing court order sought the identity only of “witnesses on whose testimony the charges against [appellant] are founded and who will testify at the trial.” (Emphasis supplied.) It is not contended that the confidential informant in this case was included among those witnesses who were to testify at trial.

Therefore, it being well established that errors not raised at trial will not be considered and ruled on by our appellate courts on appeal, Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987), appellant’s enumeration must fail.

2. Appellant contends he was denied effective assistance of counsel at trial. Although appellant’s current attorney made her appearance of record before the expiration of the 30 day period for the filing of a motion for new trial under OCGA § 5-5-40 (a), no motion for new trial was filed. Nonetheless, under this court’s holding in Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990), the lack of any opportunity for a hearing before the trial court requires that we remand this case for an evidentiary hearing on the issue of the asserted ineffectiveness of appellant’s trial counsel. “If the trial court finds appellant was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to appellant, appellant’s right to appeal that order within thirty days is preserved.” (Citations and punctuation omitted.) Id.

Judgment affirmed and case remanded with direction.

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


author: Pope, Judge.

text:
    A90A0883.
    In the Interest of B. L., a child.
    (397 SE2d 156)
   Pope, Judge.

Appellant, the natural mother of B. L., appeals from the order of the Juvenile Court of Hall County terminating her parental rights in her minor son.

The record shows that in July 1988 the mother left the child in the care of a non-relative without food or a change of clothing. Appellant left no information concerning her whereabouts and did not return when she stated she would. Because the child had not been fed or had his diaper changed in twenty-four hours the Hall County Department of Family & Children Services (DFCS) was contacted and an emergency shelter order was entered by the lower court. Subsequently, an order was entered, upon the mother’s stipulation, finding the child to be deprived and temporary custody was awarded to the Georgia Department of Human Resources acting by and through Hall County DFCS. The order also detailed a plan designed to reunite the mother with the child, pursuant to which the mother was to accomplish the following: obtain and maintain a suitable residence, obtain and maintain a means of support, present an appropriate child care plan, maintain proper medical care for herself (the mother suffers from a seizure disorder), attend and cooperate with parenting skills classes, submit to a psychological evaluation, and advise DFCS of changes in address and employment.

The child subsequently was placed in the home of the paternal grandparents. On May 30, 1989, the Georgia Department of Human Resources acting by and through Hall County DFCS filed a petition for termination of parental rights. An order terminating the father’s parental rights was entered in August 1989. Because the appellant’s whereabouts were unknown, an order was entered on July 28, 1989, authorizing service by publication. However, the mother visited the Hall County DFCS office on August 25, 1989, and at that time was personally served with the petition to terminate as well as notice of the hearing to be held on the petition. Appellant was also advised to contact the attorney who had been appointed to represent her prior to the scheduled hearing. Hearings on the petition were held on October 2 and October 6, 1989. The mother appeals from the trial court’s order of October 13, 1989, terminating her parental rights.

1. Appellant first contends the trial court erred in considering evidence of her non-compliance with the court-ordered reunification plan because the petition to terminate was filed less than one year after the court’s reunification plan was instituted. OCGA § 15-11-81 (b) (4) (C) provides that “[i]n addition to the considerations in sub-paragraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings', in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: . . . (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.”

The record in this case shows the petition to terminate was filed approximately ten months after the reunification plan was entered. However, because the whereabouts of the mother were unknown, personal service was not perfected until August 25, 1989, more than one year after the reunification plan was implemented. At the time of the hearing in October 1989, approximately fifteen months had elapsed since the reunification plan was entered. At that hearing evidence was presented concerning the mother’s present circumstances, including efforts to comply with the plan up to and including the date of the hearing.

The time limitation in OCGA § 15-11-81 (b) (4) (C) clearly is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order. That intent was clearly served in this case. Thus we find no merit to appellant’s first enumeration of error.

2. Contrary to appellant’s third enumeration of error, the juvenile court made no finding that appellant had abandoned her child pursuant to OCGA § 15-11-81 (b) (3). Rather, the juvenile court stated in its order that “had [appellant] not appeared in [the DFCS] office on August 25, 1989, the Department would have been able to establish [circumstances showing abandonment].” Likewise, the juvenile court, contrary to appellant’s fourth enumeration of error, made no finding that appellant had relinquished parental control. The court’s statements concerning the relinquishment of parental duties were made in the context of the court’s statements on abandonment, which, as stated supra, was the court’s opinion only as to what could have been shown, had the mother not visited the DFCS office in late August. It is clear from the juvenile court’s order that it did not terminate appellant’s parental rights because she had abandoned her child. Consequently, these enumerations of error are without merit.

3. Appellant also challenges the sufficiency of the evidence to support the juvenile court’s findings pursuant to OCGA § 15-11-81 (b).

Turning first to the juvenile court’s findings concerning the failure to comply with the reunification plan, the record shows that over the fifteen months preceding the termination hearing appellant had lived in five or six different locations, and had given her DFCS caseworkers between seven and nine different addresses where she could be reached. At times appellant’s whereabouts were unknown, as evidenced by failed attempts to reach her at the addresses given and testimony showing that appellant failed to contact DFCS workers for periods extending over several months. Although appellant was living with her mother at the time of the termination hearing, a caseworker testified that the results of a previous home study on that residence had been unfavorable. The evidence also shows that appellant had a very unstable employment history and that she was unemployed at the time of the second hearing. Appellant repeatedly failed to keep appointments for mental health counseling and parenting classes; although appellant ultimately complied with the directive to undergo a psychological evaluation, she missed several appointments before the evaluation was completed.

As to other evidence concerning grounds for termination as provided by OCGA § 15-11-81, testimony was presented that appellant had been addicted to cocaine and, although she had sought treatment for the problem, it was unclear whether she had in fact completed the treatment program. DFCS caseworkers testified that appellant did not request to see her son or contact the paternal grandparents in order to inquire about her son’s well-being. Testimony was also presented that the child would “absolutely” be deprived if returned to appellant and that the child needed permanency and stability in his life. Appellant testified that she had inquired once about her son and was told he was fine. Appellant further testified that while she felt she had made some progress she was not yet ready to have her child returned, although she felt she could accomplish the goals necessary to regain custody of her child if she were given another six months to a year.

“The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence parental misconduct or inability as provided by OCGA § 15-11-81 (b). (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-13 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987). In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376) (1989). In a case such as this, a plea of additional time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child where there is no indication but the promise to suggest hope of improvement. In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). In the Interest of S. L., 189 Ga. App. 361, 362 (375 SE2d 484) (1988). See also In re J. L. W., 170 Ga. App. 886 (318 SE2d 751) (1984).” (Punctuation omitted.) In the Interest of C. M., 194 Ga. App. 503, 504 (1) (391 SE2d 26) (1990).

Decided September 5, 1990.

Robbins & White, Clara E. White, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Patti P. Cornett, for appellee.

4. Lastly, appellant contends the evidence was insufficient to support the juvenile court’s determination that the termination of parental rights was in the best interest of the child, as required by OCGA § 15-11-81 (a).

“ ‘Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights . . . (is) in the [child’s] best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the [child] represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the [child] would be better served by the grant of the petition to terminate. (Cits.) In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of the parental rights of (appellant) would be in the [child’s] best interest. (Cits.)’ In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).” In the Interest of J. I. H., 191 Ga. App. 848, 850-851 (383 SE2d 349) (1989). Consequently, having found no error in the juvenile court’s order requiring reversal, we must affirm.

Judgment affirmed.

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


text:
    A90A1002.
    MORRIS v. THE STATE.
    (397 SE2d 159)
   Birdsong, Judge.

Delwin Morris appeals from his conviction of the offense of cruelty to a child. Held:

1. Morris contends that the evidence was insufficient to support the verdict of the jury and that the trial court erred in denying his motion for directed verdict of acquittal. The State presented evidence that Morris and his wife brought their one-month-old daughter to a hospital emergency room about 11:00 p.m. The infant was bleeding from a severe laceration in the mouth and had various bruises and abrasions about the face and body. The radiologist who took X-rays testified that the child had three broken ribs, a fractured skull and a broken collarbone. Her pediatrician was called to the hospital, and she was also examined by a specialist in the field of head and facial plastic surgery. All three doctors and the nurse who admitted the child testified that they immediately suspected that the infant had been battered and notified the sheriff’s department and the Department of Family & Children Services. When questioned by the authorities, Morris gave conflicting stories about what had occurred. In a written statement given at 4:00 a.m. after he was taken into custody, he claimed that he had put the infant into her bassinet in the dark, causing her to hit her mouth; at trial he testified that he had tripped and fallen on the baby and when she stopped breathing, he injured her trying to resuscitate her. The mother’s testimony corroborated the latter story.

“Since appellant challenge [d] the overruling of [his] motion for directed verdict, we have reviewed the record in light of the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.] . . . The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of cruelty to children. Consequently, the court did not err in overruling appellant’s motion for a directed verdict of acquittal. [Cits.]” Sharp v. State, 183 Ga. App. 641, 643-644 (5) (360 SE2d 50). It follows that appellant’s motion for new trial was also correctly denied.

2. Appellant complains that the trial court erred in “failing to suppress and disallow certain irrelevant and prejudicial testimony” of the investigators from the sheriff’s department and the three doctors who treated the infant victim. The trial transcript reveals that the investigators had received specialized training in the study of child abuse, and that all objections made by defense counsel to their testimony were sustained. Even where the relevance or competency of evidence is doubtful, it should be admitted and its weight left to the jury. Mathis v. State, 192 Ga. App. 772 (3) (386 SE2d 532). All three of the physicians were qualified as experts in their fields without objection and their offending testimony was in response to hypothetical questions posed both on direct and cross-examination, to which no objections were raised. “It is well settled that, unless the alleged error is of constitutional dimensions, an error raised for the first time on appeal presents nothing for review by the appellate court. [Cits.] The error raised here does not qualify for the constitutional exception. This enumeration is also without merit.” Brooks v. State, 193 Ga. App. 559, 561 (2) (388 SE2d 386).

3. Appellant next protests the admission in evidence of scientific reports and testimony pertinent thereto which were not furnished to him prior to trial as demanded pursuant to OCGA § 17-7-211. The only evidence of this sort admitted over appellant’s objection was the pediatrician’s notes and slides made from the X-rays taken by the radiologist. However, the pediatrician testified that defense counsel had obtained copies of his notes prior to trial and, even if the X-ray slides qualify as scientific reports, they were available to appellant from a neutral third party. “ ‘Where the defendant is told of the information or knows as much as the prosecution does and has an equal opportunity to obtain the document from a non-affiliated witness, it is not a violation of the statute for the state to fail to produce it in response to a demand for scientific reports.’ [Cit.]” Paggett v. State, 188 Ga. App. 174, 175 (372 SE2d 504).

4. Appellant contends the trial court’s charge on intent prejudicially deprived him of the presumption of innocence and impermissibly shifted the burden of proof to him in violation of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). The court instructed the jury that they might infer that a person of sound mind and discretion intends the natural consequence of his acts, but that whether they made any such inference was a matter solely within their discretion. Sandstrom does not condemn the use of permissive inferences, which are unconstitutional only if they are “irrational.” Pope v. State, 256 Ga. 195, 209 (16) (345 SE2d 831). The charge complained of was clearly permissive and was not “irrational.”

5. Jury instructions on the issues of expert testimony and circumstantial evidence, enumerated as error by appellant, were correct statements of the law and adjusted to the evidence. No objections to the charge as given nor requests for alternative charges appear in the record and, therefore, no harm or reversible error has been shown. Worley v. State, 193 Ga. App. 58 (1) (386 SE2d 879); Casas v. State, 193 Ga. App. 53 (387 SE2d 20).

6. Although the record does not reflect that a written request was made to charge the jury on the lesser included offense of simple battery, appellant asserts that the trial court’s failure to give such an instruction was error. However, even where the evidence justifies it, “ ‘[a] trial judge never errs in failing to include a charge on a lessor included offense unless there is a written request to charge.’ [Cit.]” Dorsey v. State, 192 Ga. App. 657, 658 (2) (386 SE2d 167). We find no grounds for reversal.

Decided September 5, 1990.

Ronald E. Nelson, for appellant.

J. Lane Johnston, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1046.
    WHITE v. THE STATE.
    (397 SE2d 299)
   Sognier, Judge.

Vincent White was convicted by a Tattnall County jury of cocaine trafficking, marijuana possession, and escape. He appeals from the denial of his motion for new trial, enumerating four errors.

1. Appellant first contends the trial court erred by allowing into evidence testimony concerning appellant’s arrest on a separate charge of cocaine trafficking a year after the incident at bar. The transcript reveals that appellant was arrested for the charged crime on June 12, 1988 after former Glennville Police Officer Freddie Stewart observed a car swerving across the centerline of a highway at 3:50 a.m. When he stopped the vehicle, Stewart discovered appellant asleep in the passenger side of the front seat, and observed on appellant’s lap a clear plastic package containing a white substance that was later proved to be cocaine. Cocaine also was found in a leather bag placed on the floorboard behind appellant. After an offer of proof and limiting instructions to the jury, Richmond County Deputy Sheriff Vincent Eubanks testified that on May 2, 1989, over ten months after appellant’s initial arrest, he observed appellant sitting in the driver’s seat of a car parked in a motel parking lot. Upon asking appellant for his driver’s license and ascertaining from a computer check that there was outstanding a warrant for appellant’s arrest, Eubanks arrested him. Appellant then removed from his pocket and threw away a bag that when found proved to contain several pieces of crack cocaine. Additional cocaine was found in a leather bag inside the car.

As appellant correctly notes, evidence of other crimes is generally not admissible unless the evidence established that the defendant was the perpetrator of the independent crime and there was “ ‘sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter, [Cit.] . . .’ [Cit.]” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). In the case at bar, the first requirement was satisfied by Eu-banks’ positive identification of appellant as the perpetrator of the independent crime. The trial court correctly concluded the second requirement was met because evidence that appellant was apprehended in a car while carrying a large amount of cocaine on his person and in a leather bag was relevant to show plan, scheme, bent of mind, and course of conduct with regard to the charge of cocaine trafficking for which he was being tried. See id. Contrary to appellant’s assertions, we find the trial judge’s limiting instructions to the jury were accurate and appropriate.

2. Appellant next contends the trial court improperly denied his motion for mistrial made when Eubanks, during his testimony concerning the independent crime evidence, stated that when he ran the computer check on appellant, he discovered that there was an outstanding warrant for appellant’s arrest for the misdemeanor offense of pointing a weapon at another. In response to appellant’s objection, the judge gave curative instructions to the jury and admonished the witness not to refer to any other crimes. Appellant then renewed his motion. Given that Eubanks’ statement was voluntary rather than solicited by the prosecutor and that the trial court gave thorough curative instructions, we find no abuse of discretion in the denial of the motion for mistrial. See Jones v. State, 167 Ga. App. 847, 848 (2) (307 SE2d 735) (1983).

3. Appellant also enumerates as error the trial court’s cancellation of the hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) with regard to appellant’s statement to police. The record reveals that the trial court did begin the hearing and permitted the prosecutor to complete his questioning of the witness to establish the voluntariness of the statement, but stopped the hearing during appellant’s cross-examination of the witness. The court concluded no hearing was needed because the statement was being offered by appellant’s co-defendant, not by the State.

Pretermitting the question whether a Jackson-Denno hearing is required when the statement of a defendant is offered by another defendant, “a requirement for a hearing on the issue of voluntariness applies only if the evidence presents a fair question as to its voluntariness. No such question is presented in this case: There is no evidence whatsoever in the record and no offer of proof that appellant’s statements . . . were anything but voluntary.” Craver v. State, 246 Ga. 467, 468 (1) (271 SE2d 862) (1980). Since no harm has been shown, we find no error in the termination of the hearing. See id.

4. Citing Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), appellant finally contends that the court erred by charging the jury that they could convict him of trafficking upon a finding of either actual or constructive possession of cocaine. This enumeration is without merit. After the Supreme Court’s ruling in Lockwood, the General Assembly revised OCGA § 16-13-31 (a) (1) to define cocaine trafficking as knowing “possession” of 28 grams or more of cocaine rather than “actual possession” as the statute had read when Lockwood was decided. See Ga. L. 1988, p. 420, § 2. This change became effective March 28, 1988, three months prior to appellant’s commission of the acts at issue. Accordingly, the requirement of actual possession was not applicable to appellant, Jackson v. State, 193 Ga. App. 636, 637-638 (1) (388 SE2d 881) (1989), and the court’s charge constituted a correct statement of the law.

Decided September 5, 1990.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J,, concurs in Divisions 1, 2, 4, and in the judgment.


text:
    A90A1088.
    WOOD et al. v. TURNER.
    (397 SE2d 161)
   Birdsong, Judge.

Charles M. Turner sued Paul Wood and Wood Construction Company to recover losses incurred as a result of Wood Construction’s failure to comply with contractual obligations to construct a sewer line on property owned by Turner in Lilburn.

The parties entered the contract August 22, 1988. The work was to be completed in about three weeks, or no later than September 7, 1988. By March of the following year, the sewer line had not been completed; the county had found violations of the Gwinnett sewer use ordinances and would not issue a certificate of occupancy. Plaintiff wrote Wood three or four letters in March 1989, but Wood never completed the sewer. In August 1989, Turner hired another to reconstruct a sewer; that second company obtained a certificate of occupancy.

The case was tried without a jury. The trial court, in awarding Turner $17,288.88, made findings that the company had failed to construct a sewer line in accordance with the contract specifications and specific Gwinnett County guidelines and regulations, and that the company never did complete the contract, so that the plaintiff was entitled to recover expenses of having another contractor construct a suitable sewer line, and was entitled to certain attorney fees for specific bad faith and stubborn litigiousness. Wood et al. appeal, enumerating four errors. Held:

1. In three enumerations, Wood complains of the testimony of Glenn Pontsler, who was a development inspector with Gwinnett County. Pontsler, whose job involves the inspection of water and sewer lines of development property, testified he frequently inspected this job site and observed certain violations of Gwinnett County ordinances relating to sewer construction. He also testified that because of these violations he never issued a certificate of occupancy to Wood and that in his opinion, Wood’s work on this sewer line was not done in a suitable and workmanlike manner.

Appellants contend Pontsler was never qualified as an expert and thus his testimony should not have been allowed; that Pontsler was erroneously allowed to testify upon and enter business records without a proper foundation because the custodian of the records was not identified; and that the trial court erred in allowing him to testify Wood’s work was not suitable and workmanlike because such testimony was “outside his actual knowledge.”

None of these complaints has merit. Pontsler on direct examination gave extensive evidence for the plaintiff’s express purpose of qualifying him as an expert “so as to be qualified to give his opinion about the quality of this installation.” He testified as to his past professional experience and duties, and that he had inspected “hundreds” of sewer lines under construction. Whether a witness is properly qualified as an expert is a matter addressed to the sound discretion of the trial court, and we find no abuse of that discretion in this case. Moreover, although appellants refused to stipulate that Pontsler is an expert, they did withdraw their objections generally. It is not necessary that the trial court sitting alone specifically announce that the witness is an expert, for that issue is one of fact according to the weight of the evidence. See Moses v. State, 245 Ga. 180 (263 SE2d 916); McCoy v. State, 237 Ga. 118 (227 SE2d 18); Smith v. Godfrey, 155 Ga. App. 113 (270 SE2d 322).

The point of qualifying a witness as an expert relates directly to the scope of the witness’ testimony. OCGA § 24-9-67; see Southern R. Co. v. Cabe, 109 Ga. App. 432 (136 SE2d 438); see also Moore v. State, 221 Ga. 636 (146 SE2d 895). This witness did not give testimony outside his actual knowledge, but personally observed the construction of the sewer and was qualified to testify that he found violations of the county ordinance and was authorized to deny a certificate of occupancy. It was not error to let him state that Wood’s work was not suitable and workmanlike; his opinion was based upon the fact that he observed specific violations of the county ordinance and determined the work did not merit a certificate of occupancy. This was an admissible opinion of fact even though it also amounted to an ultimate issue for the fact finder. Security Life Ins. Co. v. Blitch, 155 Ga. App. 167 (270 SE2d 349).

Decided September 5, 1990.

Macklyn A. Smith, for appellants.

Thomas T. Tate, for appellee.

The trial court did not err in allowing Pontsler to testify from county records on asserted grounds that they were business records for which the custodian was not proved. OCGA § 24-3-14 does not require that the custodian be proved; this is an issue that might affect the weight of the evidence, but not its admissibility. See OCGA § 24-3-14 (c). See Bynum v. Standard &c. Co., 157 Ga. App. 819 (278 SE2d 669). It was established these were records kept in the regular course of the business of inspecting sewer line construction for the county by Pontsler and by other county employees known to him, and that the records were made at or reasonably near the time of the transaction or inspection. OCGA § 24-3-14 (b).

2. The trial court did not err in failing to make written findings of fact in this case. OCGA § 9-11-52 (a) does not require findings unless a party makes a request for specific findings prior to the ruling. We find no such request in this case. In any event, the trial court’s findings as stated from the bench were full and sufficient to support the verdict, and appellant cites no basis upon which to conclude they were insufficient or caused him harm. See Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709).

Judgment affirmed.

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


text:
    A90A1512.
    COLQUITT v. THE STATE.
    (397 SE2d 164)
   Sognier, Judge.

Freddie Lee Colquitt was convicted of armed robbery, and he appeals.

1. Appellant contends the trial court erred by admitting a portion of a statement appellant made to police in which appellant referred to his earlier imprisonment. The portion of his statement objected to was appellant’s comment that he refused another’s suggestion that they rob a bank together because he “just got out of prison” a few months before. Appellant argues that his statement was an admission rather than a confession (in that while stating he participated in the armed robbery, he alleges he did so out of coercion), which distinguishes the case law setting forth the well established principle that “[i]t is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.” (Punctuation and citations omitted.) Williams v. State, 192 Ga. App. 317, 320 (6) (384 SE2d 877) (1989). We find no merit in this argument. While appellant’s statement may not have been a confession, it was nonetheless an incriminatory statement. The fact that the trial court incorrectly referred to appellant’s statement as a confession before admitting the challenged portion of the statement does not constitute reversible error since “[w]e have consistently held that a correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” (Punctuation and citations omitted.) Ely v. State, 192 Ga. App. 203, 205 (4) (384 SE2d 268) (1989).

Decided September 5, 1990.

John D. McCord III, for appellant.

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

2. Appellant contends the trial court erred by admitting as evidence of a similar transaction appellant’s conviction for armed robbery of a bank in 1981. “ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” [Cit.]’ [Cit.]” Carter v. State, 192 Ga. App. 726, 729 (8) (386 SE2d 389) (1989). Appellant pled guilty to committing the 1981 robbery, so the first requirement was met. As to the second requirement, the similarities shown by the State’s evidence were that in each case appellant robbed a bank with one man; that appellant used a gun and positioned the gun within inches of the tellers’ faces; that appellant wore sunglasses and used loud, vulgar, and abusive language; that appellant demanded (in the 1981 robbery) only $100 bills and (in the charged robbery) only $100 and $50 bills; that he threatened the lives of the tellers if they activated any of the alarm devices; that appellant stuffed the bills in the pockets of the jacket he was wearing; that appellant moved down the counter from one teller to the next, robbing each in turn; and that appellant escaped the scene in a car.

Based on these similarities we find no error in the trial court’s admission of this evidence. See generally Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989).

Judgment affirmed.

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


text:
    A90A1769.
    In the Interest of N. A. B. et al., children.
    (397 SE2d 301)
    Decided September 5, 1990.
    James W. Bratek, pro se.

      Nadine Bailey, Barry L. Fitzpatrick, Vicky 0. Kimbrell, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.
   Sognier, Judge.

The father of twin minor girls, N. A. B. and D. N. B., filed a petition in the Juvenile Court of Madison County alleging that the children were deprived under OCGA § 15-11-2 (8) and moved the court to place custody of the children in him. After a final hearing on the matter, the juvenile court found no merit in the allegations of the father’s complaint and returned custody of the children (who had been temporarily transferred to the Department of Family & Children Services) to their mother. The father filed a notice of appeal but did not, however, file an application with this court for a discretionary appeal. See OCGA § 5-6-35 (a) (2). “ ‘This court has held that appeals from orders dealing with child custody which are not filed pursuant to OCGA § 5-6-35 . . . must be dismissed for lack of jurisdiction. (Cit.)’ [Cit.]” Brandenburg v. Brandenburg, 175 Ga. App. 20 (332 SE2d 664) (1985).

Appeal dismissed.

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


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    A89A0916.
    RESIDENTIAL DEVELOPMENTS, INC. v. MASSICOTT.
    (397 SE2d 631)
   Cooper, Judge.

This court having entered a judgment in the above-styled case at 193 Ga. App. 857 (389 SE2d 347) (1989) affirming the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 260 Ga. 319 (392 SE2d 706) (1990), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.

Decided September 10, 1990.

Heyman & Sizemore, William H. Major, for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Mark H. Cohen, Senior Assistant Attorney General, for appellee.


text:
    A90A0912.
    MILSAP v. THE STATE.
    (397 SE2d 168)
   Cooper, Judge.

Appellant was convicted by a jury of two counts of selling cocaine. On two separate occasions, an undercover GBI agent, Agent Linton, purchased cocaine from appellant during an undercover police and GBI investigation. On each occasion, Agent Linton was accompanied by another undercover GBI agent and a confidential informant. Agent Linton conducted the drug sales with appellant and the confidential informant supplied the agents with appellant’s name as the person who had sold the drugs. The informant did not participate in the drug sales but was present during the sales. The other agent, different for each sale, was also present during the sales. After the sales, appellant’s name was transmitted to a local police officer who performed a background check on appellant and obtained a photograph of him. Sometime later during the ongoing investigation, Agent Linton viewed the photograph and identified appellant as the person who had sold him the cocaine. The officers involved in the investigation testified that the photo identifications occurred usually within two or three days from the actual sale, although Agent Linton testified that he could not recall the length of the intervening time period.

Agent Linton and the other two agents identified appellant at trial as the seller of the cocaine. Appellant contended at trial that there had been a misidentification of him as the seller of the cocaine, and testified that, although he did at one time own a jacket similar to the distinctive purple letterman’s jacket that had been worn by the seller, he had given this jacket to his cousin. Appellant also testified that other items of clothing worn by the seller were owned by his relatives. At a pre-trial hearing appellant requested that the confidential informant be subpoenaed and required to testify at trial in order to show the possibility that incorrect information was given to the agents. In the absence of the informant at trial, appellant requested that the jury receive evidence regarding the informant’s previous convictions for giving false information to law enforcement officers. The trial court ruled that the identity of the informant could not be revealed and that the credibility of the informant was irrelevant since the agents made an independent identification of appellant. The court did not allow the jury to receive any evidence on the credibility or reliability of the informant.

1. Appellant’s first three enumerations of error all relate to the issue of the credibility of the informant. Specifically, appellant alleges that the court erred in: 1) refusing to admit evidence that the person supposed by appellant to be the informant had been previously convicted of giving false names to law enforcement officers, 2) refusing to allow the GBI agents to be cross-examined in front of the jury on whether it would make a difference in their identification of appellant if the agents knew of the informant’s convictions and 3) refusing to allow testimony that appellant had tried to locate and subpoena the individual he suspected to be the informant. “Public policy inhering in the need to protect an informer and to encourage information is so strong that it may, in particular circumstances, outweigh a defendant’s right to summons a witness. . . . [Cit.] Therefore, there are particular requirements placed upon the defendant to justify identifying or summonsing the informer.” Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677) (1989). “ ‘ “Where a person merely takes an undercover police officer to a location and . . . introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a ‘decoy’ and a disclosure of his name, address, etc., to the defendant is not required as a matter of law under (OCGA § 24-9-27), but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances.” ’ ” Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156) (1984). Thus, at an in camera examination, the judge must balance the government’s need for nondisclosure and non-exposure against the defendant’s need for disclosure or production of the witness. State v. Mason, 181 Ga. App. 806, 812 (4) (353 SE2d 915) (1987). In Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511) (1988), the court held that the informant’s testimony could be compelled when the informant is “ ‘the only witness in a position to amplify or contradict the testimony’ of the appellant and the police officer. [Cit.]” Id. at 391. That court also held that if the informant’s testimony is wanted for impeachment purposes only, such testimony could not be compelled. Id. at 390-391. In the instant case, the judge carefully examined the circumstances and balanced the competing interests of the parties. The informant, although not merely a decoy, was not the only witness to the drug sales, and appellant sought his testimony for impeachment and credibility purposes. The judge acknowledged that since Agent Linton had made an independent identification of appellant through the photograph, the credibility of the informant in making the first identification was irrelevant. Further, the other two witnesses to the drug sales were available at trial to amplify or contradict the testimony of Agent Linton and the defendant. See Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989). The trial judge properly performed his duty of balancing the interests of the parties and did not abuse his discretion in disallowing any testimony or evidence relating to the credibility, reliability or availability of the informant. Appellant’s first three enumerations are without merit.

Decided September 10, 1990.

Roland H. Stroberg, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

2. Appellant next contends that the court erred in failing to grant a mistrial when the state sought to elicit evidence that the police had a “mug shot” of appellant on file. The state asked a police officer if he routinely maintained photographs and inquired where he got the picture of appellant that he showed Agent Linton. The witness never answered the question and the judge instructed the jury to disregard the questions. “ ‘(T)estimony that a criminal defendant’s name and picture are on file with a police department does not put that defendant’s character in issue’ [Cit.]. . . .” Kirkland v. State, 173 Ga. App. 687, 688 (5) (327 SE2d 808) (1985). Further, the admission of the photograph of appellant did not indicate that appellant was guilty of any previous crime and was not in error. Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987). The trial court did not err in denying appellant’s motion for a mistrial.

Judgment affirmed.

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


text:
    A90A1182.
    BARLOW v. ORKIN EXTERMINATING COMPANY, INC.
    (397 SE2d 170)
   Birdsong, Judge.

Rosa Barlow sued Orkin Exterminating Company, Inc., for injuries she sustained in a fall while Orkin’s employee was spraying Ms. Barlow’s employer’s home. The trial court granted summary judgment to Orkin.

Ms. Barlow was housekeeper for the Beckett family. She was alone at the house when the Orkin employee arrived to spray for fleas. While the employee was spraying in the hall upstairs, Ms. Barlow exited the room at the top of three or four steps, with an armload of laundry. Her foot slipped on the top step which was hardwood, and she slid or fell down three carpeted steps onto the kitchen floor, and just kept slipping on something wet and could not break her fall. The floor was wet all around her; she had mopped earlier in the day and the area had inferably dried, for she stated this wetness did not come from mopping. Evidently, she had not spilled anything and she knew no other reason the floor and steps should be wet except that they had been sprayed with Orkin’s chemical, about which she had not been warned.

Orkin’s employee had been servicing the Beckett house at regular intervals for at least two and one-half years, during which time Ms. Barlow had been at the house and let Orkin’s employee in to spray the house for fleas. (The Becketts had three dogs and three cats.) Orkin disputed entirely Ms. Barlow’s version of events and said its employee had not even sprayed that area where Ms. Barlow fell, because their employees routinely start at the back of the house and move circularly forward to keep from retracing. When Ms. Barlow fell, the employee was spraying behind her towards the back of the hallway leading to the master bedroom.

Orkin asserted that it sprays only carpet where pests abide and that it never sprays hardwood flooring or tile, because pests do not harbor there, and because the chemical would leave a wet area where sprayed. Held:

As to the defendant’s motion for summary judgment, the burden of proof is always on the movant, even with respect to issues on which the plaintiff would have the burden of proof at trial; the trial court must construe the evidence in favor of the opposing party, and even mere opinion evidence by the opposing party can be sufficient to preclude an award of summary judgment. Brygider v. Atkinson, 192 Ga. App. 424, 426 (385 SE2d 95). On motion for summary judgment, all doubts as to evidence and the benefit of any conflict are to be indulged in favor of the opposing party and construed against the movant. Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256 (358 SE2d 655). If the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact must be drawn against the movant and in favor of the party opposing the motion. Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664).

According to these principles, at the level of summary judgment the trial court must construe the evidence, and inferences therefrom, according to Ms. Barlow’s version. In this posture, the evidence shows that Ms. Barlow slipped on a wet substance which was on the kitchen floor, and perhaps on the top wooden stair; she was the only person in the house, besides the exterminator who was spraying chemicals. She knew she did not place the wet substance on the floor, because she had mopped earlier in the day and the floor would have been dry. In her opinion, the wet substance could not be anything other than the chemical being sprayed by the Orkin employee. In fact, the Orkin employee was spraying behind her when she fell, and had his back towards the stairs. She did not smell the chemical; she had an armload of dirty laundry. Orkin’s employee did not warn her about watching her step or as to where he had sprayed. The jury could find from the evidence that Orkin’s employee did either inadvertently or knowingly spray chemicals onto the wood stair and the kitchen floor around the staircase while he sprayed the carpet. This is the construction of the case in favor of the opposing party, Ms. Barlow.

Decided September 10, 1990.

Steven L. Beard, for appellant.

Jay M. Barber, Decker & Hallman, W. Winston Briggs, Richard P, Decker, for appellee.

Ms. Barlow was in the habit, for two and one-half years, of - going about her duties whenever the Orkin man came to spray. On the question of negligence, and Ms. Barlow’s own exercise of care, we think an inference favorable to Ms. Barlow and unfavorable to Orkin could be drawn from Orkin’s evidence that it habitually did not spray wood or tile floors, and the evidence that Ms. Barlow had always been able to go about her work during spraying in the past. That is, it may be inferred that based upon her own previous experience and Orkin’s exercise of due care in the past, Ms. Barlow had no reason to expect that the chemical spray might on this occasion have been applied to the wood stair and/or the tile kitchen floor.

Thus a jury question clearly arises as whether Orkin, in applying or allowing chemical spray to be applied to the kitchen floor and/or wood step (which are inferences of fact we must indulge in the respondent’s favor) was negligent; and in view of the fact, admitted by Orkin, that Orkin customarily did not spray any floor surface but carpet, and with the evidence that for the two and one-half years Orkin had been treating the Beckett residence, the plaintiff was thus able to go about her duties as usual, the issue arises whether she did so with a commensurate degree of ordinary care on that day.

Accordingly, the facts must be resolved by a jury.

Judgment reversed.

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