author: Ruffin, Judge.

text:
    A98A2057.
    WELLS v. THE STATE.
    (514 SE2d 245)
   Ruffin, Judge.

A jury found Wells guilty of possession with intent to distribute cocaine and possession of marijuana. The trial court sentenced Wells to life for possession with intent to distribute cocaine and to 12 months for possession of marijuana. Wells appeals, asserting numerous errors. Because Wells’ assertions lack merit, we affirm.

On November 23, 1993, following a “controlled buy” of crack cocaine at a motel room, six to eight members of the Gwinnett County Drug Task Force obtained a search warrant for the motel room. Detective Diaz testified that, while waiting to execute the warrant, he saw Wells and a young female leave the room and get into a car, with Wells sitting in the driver’s seat.

To prevent Wells from leaving, the police officers blocked his car. Diaz handed Wells a copy of the search warrant and took him back to the motel room where the police found marijuana, two sets of scales, multiple small ziplock baggies, and a razor blade. Diaz testified that the plastic bags, scales and razor blade are all instruments typically used in the distribution of cocaine.

While Diaz was in the motel room with Wells, another officer told Diaz that he had found something in Wells’ car. Diaz returned to the car where he saw, underneath the steering wheel on the floor of the car, two clear plastic packets containing crack cocaine. After Diaz read Wells his Miranda rights, Wells told Diaz that he was taking the crack cocaine to someone else. Wells also told Diaz that the marijuana was for his personal use.

1. At trial, Wells moved to obtain a copy of his female companion’s juvenile court record, which, according to Wells, contained exculpatory information. Wells contends that, pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), he was entitled to any evidence regarding the disposition of the case against his companion. Specifically, Wells argues that if his companion had been adjudicated delinquent based upon the contraband found, the jury could infer that the drugs were hers rather than his. Following an in-camera inspection, the trial court found that the juvenile record contained no exculpatory information. Wells claims the trial court erred in this finding.

Fundamental to any error based upon a violation of Brady is that appellant must prove that: (1) the state possessed evidence favorable to the defense, i.e., true Brady material; (2) the defense did not possess the evidence, nor could [he] obtain it [himself] with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) [he] was denied access to such evidence during the trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived [him] of a fair trial, i.e, a reasonable probability exists that the outcome of the proceedings would have been different had disclosure been made.

(Emphasis omitted.) Bailey v. State, 229 Ga. App. 869, 874 (3) (494 SE2d 672) (1997). Here, Wells’ asserted error must fail because he has not proved that the State possessed any evidence favorable to his defense.

Wells claims that this is an “equal access” case and, as such, evidence of his companion’s guilt would exculpate him. We disagree. “The equal access rule applies to contraband that is for the most part in open, notorious and easily accessible areas.” (Punctuation omitted.) Felix v. State, 234 Ga. App. 509, 512 (4) (507 SE2d 172) (1998). This rule entitles a defendant to an acquittal where the only evidence linking him to the contraband is his ownership or control over the area where the contraband was found. See Montgomery v. State, 204 Ga. App. 534, 536 (1) (420 SE2d 67) (1992); Bowen v. State, 203 Ga. App. 371-372 (1) (417 SE2d 18) (1992). Here, the equal access doctrine would not apply since additional evidence linked Wells to the contraband, including his inculpatory statement that the marijuana was for his personal use and that he was taking the cocaine to someone else.

Nevertheless, Wells argues that if he had been able to introduce evidence of his companion’s guilt, “there is a reasonable probability that he would have been acquitted or convicted only of the lesser offense of simple possession of cocaine.” We disagree. As an initial matter, it is well established that two people may be charged jointly for the same violation of the Georgia Controlled Substances Act. See Felix, supra; Ellison v. State, 233 Ga. App. 637 (504 SE2d 779) (1998); Coleman v. State, 229 Ga. App. 642 (494 SE2d 549) (1997). Accordingly, we fail to see how the alleged guilt of Wells’ companion for the same crime would exculpate Wells.

Wells cites Walker v. State, 260 Ga. 737 (399 SE2d 199) (1991) and Henderson v. State, 255 Ga. 687 (341 SE2d 439) (1986) for the proposition that the “evidence of the guilt of another tends to exonerate the defendant and is clearly exculpatory.” We note, however, that neither of these cases involves charges of joint possession of contraband. “Although ... a defendant may not be prevented from introducing evidence of a co-defendant’s [guilt] where the [other’s guilt] is highly relevant to a central issue in the case, the relevance of [Well’s companion’s guilt] was never demonstrated at trial.” Garcia v. State, 155 Ga. App. 445, 446 (1) (271 SE2d 13) (1980). “[S]ince two or more persons may be convicted of possession of the same contraband, there is nothing about [the juvenile’s guilt] which is on its face inconsistent with the case against [Wells].” Id. Thus, the trial court correctly concluded that any evidence of the juvenile’s guilt contained in the juvenile court records was not exculpatory.

2. Wells also asserts that the trial court erred in denying his motion for a mistrial based upon the State’s failure to provide him with a videotape of his arrest until mid-trial. Wells contends that the tape contained exculpatory material which the State was obligated to provide in accordance with Brady and that the State’s failure to provide this tape prior to the Jackson-Denno hearing prevented him from receiving a fair trial.

At the time of Wells’ arrest, the Gwinnett police were experimenting with the use of video cameras. According to Diaz, part of the search was videotaped. Although the State did not put the tape in evidence, it allowed Wells’ attorney to view the tape and stipulated to its admissibility in the event that Wells chose to tender the tape. Pretermitting the issue of whether the videotape, in fact, contained exculpatory material, it is well established that “Brady is not violated when the evidence is made available during the trial, as occurred here.” Jordan v. State, 211 Ga. App. 86, 92 (2) (438 SE2d 371) (1993); see also Herring v. State, 224 Ga. App. 809, 813 (2) (481 SE2d 842) (1997).

Although Wells claims that he should have been given an opportunity to review the tape prior to the Jackson-Denno hearing, we fail to see how the tape would have benefited him. At the Jackson-Denno hearing, Wells testified that Diaz never advised him that he was under arrest nor did Diaz read him his Miranda rights. However, after the State provided Wells’ attorney the videotape during trial, she stated that “they have Officer Diaz on the tape administering the Miranda warnings, they have Mr. Wells acknowledging the Miranda warnings.” Thus, rather than benefiting Wells at the hearing, the videotape was more likely to harm him.

Accordingly, Wells has not shown that delayed disclosure deprived him of a fair trial. See Herring, supra. Under these circumstances, the trial court did not err in failing to grant Wells’ motion for mistrial.

3. Wells argues that the trial court erred in refusing to suppress statements he made following his arrest because he made the statements under duress.3 During the Jackson-Denno hearing, Diaz testified that, after he arrested Wells and read him his Miranda rights, Wells admitted that he was taking the crack cocaine to someone else, and that the marijuana was for personal use. Diaz denied threatening Wells, hitting Wells or promising any benefit in exchange for this statement. Wells, on the other hand, testified that Diaz punched him, beat him, and choked him. Despite this alleged abuse, Wells claims he told Diaz only that “there’s some weed in there,” but that he did not say it was his.

Thus, the evidence was in conflict as to whether Wells voluntarily made incriminating statements. “The question of whether a post-Miranda custodial statement is admissible depends on whether, under the totality of the circumstances, there was a knowing and voluntary waiver of rights.” Nizer v. State, 221 Ga. App. 301, 303 (471 SE2d 254) (1996). “In such cases where the testimony is in dispute, the trial court’s determinations of fact and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. Sanders v. State, 257 Ga. 239 (1) (357 SE2d 66) (1987). The trial court’s findings in this case were not clearly erroneous.” Clark v. State, 189 Ga. App. 68 (2) (374 SE2d 783) (1988).

4. Wells contends that the trial court erred in allowing the State to present evidence of similar transactions. Specifically, Wells claims the trial court erred in allowing the State to introduce testimony from several law enforcement officers regarding other drug cases against Wells, some of which had been nolle prossed as part of a negotiated plea.

Contrary to Wells’ contention, “[t]he trial court did not err in admitting evidence of [the] prior similar transaction[s]. Prior crime evidence is admissible when the State satisfactorily makes the three affirmative showings required by Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B).” Brundage v. State, 231 Ga. App. 478, 480 (2) (499 SE2d 408) (1998). The State must show (1) that the evidence of the similar crime is admitted for an appropriate purpose such as to show motive or intent; (2) that there is sufficient evidence to establish the accused committed the independent act; and (3) that there is a sufficient connection or similarity between the two crimes that the former tends to prove the latter. Williams, supra, 261 Ga. at 642.

Here, the State introduced evidence of three similar transactions. Officer Jolly testified that in November 1989, he arrested Wells after he found 13 individually wrapped pieces of crack cocaine in his possession. Officer Diaz testified that in July 1990, while executing a search warrant at Wells’ residence, he found 40 pieces of crack cocaine wrapped in individual plastic bags and marijuana. Officer Halcomb testified that he arrested Wells in January 1991 after he made two purchases of crack cocaine from Wells.

Wells argues that evidence of the prior transactions should not have been admitted because they were not factually similar to the present case. We note, however, that “[t]he independent act does not have to be identical in character to the charged offense if there is a sufficient connection between them.” (Punctuation omitted.) Brundage, supra. In all three prior transactions, Wells either possessed or sold crack cocaine. Two of the prior transactions involved individually wrapped items suggesting intent to distribute. Accordingly, we agree with the trial court’s conclusion that there was sufficient connection between the prior incidents and the offense charged to warrant their admission. See Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997).

Wells also claims that the State should have been estopped from introducing the cases that had been nolle prossed since he had not been advised that these incidents could be used against him at a later date. This argument is without merit. “It is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” Randolph v. State, 198 Ga. App. 291, 292 (2) (401 SE2d 310) (1991). In that regard, we have allowed a charge that has been nolle prossed to be used as evidence of a similar transaction since “[t]he mere entry of nolle prosequi does not indicate an absence of the commission of a criminal act or forever clear one of the charges brought against him.” (Punctuation omitted.) Richards v. State, 222 Ga. App. 853, 855 (2) (476 SE2d 598) (1996). Accordingly, the mere fact that the charges against Wells had been nolle prossed did not bar the State from using them as similar transactions. Id.

5. Wells claims that the trial court erred in denying his motion for mistrial following Diaz’s “sua sponte” comments regarding a prior guilty plea that “impermissibly impugned his character.” This claim is meritless.

The decision whether to grant a mistrial lies within the discretion of the trial court. We must determine whether the court abused its discretion in denying the motion for mistrial, considering, among other factors, the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

Williams v. State, 214 Ga. App. 834, 835 (2) (449 SE2d 532) (1994).

After Diaz testified about the prior incident where he found 40 packages of cocaine at Wells’ residence, Wells’ attorney cross-examined him regarding the charges brought against Wells. Specifically, she asked him “Are you . . . familiar with the disposition of the case?” Diaz responded that a plea bargain had been entered into by the defendant in which he pled guilty to some of the charges and others were nolle prossed. Wells’ attorney moved for a mistrial, claiming that Diaz’s answer was non-responsive and served to place Wells’ character in evidence.

“Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, [she] will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question.” (Punctuation omitted.) Query v. State, 217 Ga. App. 61, 64 (4) (456 SE2d 704) (1995). “Although not directly responsive to the question posed, the officer’s response was directed toward answering the question and was not unresponsive.” Nichols v. State, 200 Ga. App. 297, 299 (2) (407 SE2d 493) (1991). Under these circumstances, the trial court did not abuse its discretion in refusing to grant a mistrial. Query, supra.

6. During the sentencing phase, the State offered a certified copy of Wells’ prior plea of guilty, relating to violations of the Georgia Controlled Substances Act. Pursuant to OCGA § 16-13-30 (d), a second conviction for possession with intent to distribute cocaine is punishable by life imprisonment. Wells objected to the introduction of the guilty plea for sentencing purposes, claiming that the State produced no evidence that the plea was voluntary. At the sentencing hearing, Wells presented no evidence to support his contention that his plea was not voluntary, but simply argued that the State had the burden of proving voluntariness.

In Pope v. State, 256 Ga. 195 (345 SE2d 831) (1986), our Supreme Court held that

[a] plea of guilty that is invalid under Boykin [v Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)] may not be used to enhance punishment in a subsequent trial. . . . [0]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver. Boykin states that “ ‘(presuming waiver from a silent record is impermissible.’ ” Id. at 242.

(Citation omitted.) Id. at 209-210 (17).

After the decision in Pope, however, the United States Supreme Court clarified its holding in Boykin, stating that “Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.” Parke v. Raley, 506 U. S. 20, 30 (113 SC 517, 121 LE2d 391) (1992). Thus, the U. S. Supreme Court held that “the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin.” Id. at 34.

In Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998), cert, granted, this Court considered the effect of Parke on the Supreme Court of Georgia’s decision in Pope. Because Pope was based on an interpretation of the U. S. Constitution, and the U. S. Supreme Court had subsequently interpreted the Constitution in a different manner, a unanimous Court of Appeals held that Parke was controlling, and that, when considering the admissibility of a prior guilty plea for purposes of recidivist sentencing, a trial court is “authorized to . . . apply the presumption of regularity which is deeply rooted in our American jurisprudence and in Georgia is codified in OCGA § 24-4-24 (b) (1).” (Punctuation and footnote omitted.) Nash, supra at 79.

Decided March 18,1999.

Leslie J. Cardin, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

In this case, the trial court was authorized to apply a presumption of regularity to the prior convictions, and Wells offered no evidence to rebut the presumption that his plea was voluntary. Accordingly, the trial court did not err in admitting the prior plea for sentencing purposes. Nash, supra.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       Diaz testified that Wells’ female companion also was charged in connection with the drugs found during the search at the motel. However, the trial court would not allow Wells to question Diaz regarding the disposition of the case against her. The State listed Wells’ female companion as a potential witness, but she left the State prior to trial and was unavailable to testify.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Wells also contends that Diaz did not read him his Miranda rights. However, this contention is contradicted by his attorney’s statement that the videotape showed Diaz reading Wells his Miranda rights. We note that “[i]n resolving appellate issues as to confession voluntariness and whether appellant was adequately advised of and waived his Miranda rights, an appellate court may consider all evidence of record, not merely that introduced at the Jackson-Denno hearing.” Rachell v. State, 210 Ga. App. 106 (2) (a) (435 SE2d 480) (1993).

       Although the Supreme Court’s decision in Mize v. State, 269 Ga. 646, 657 (15) (501 SE2d 219) (1998), implicitly calls into question our decision in Nash, the Supreme Court did not overrule Nash in that case, nor did it consider the U. S. Supreme Court’s decision in Parke. Accordingly, and in light of the fact that the Supreme Court has granted certiorari in Nash, we adhere to our unanimous decision in Nash. See OCGA § 15-3-1 (unanimous whole-court decision may not be “overruled or materially modified except with the concurrence of all the Judges”).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2117.
    PAULSEN STREET INVESTORS v. EBCO GENERAL AGENCIES et al.
    (514 SE2d 904)
   Smith, Judge.

This case appears before us for the second time. In Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507 (481 SE2d 246) (1997) (“Paulsen Street F’), we determined that appellant Paul-sen Street Investors, a limited partnership (“Paulsen Street”) had standing to bring this action as an assignee of Agency Premium Finance Company (“APF”). Now we consider the issue of whether a premium finance company must be licensed under the provisions of OCGA §§ 33-22-1 through 33-22-16, the Insurance Premium Finance Company Act, before it may make a claim under the provisions of that law for the return of unearned premiums on cancelled policies. Because we find the Act is intended to create a regulatory scheme, we conclude that APF’s failure to obtain a license bars any right of recovery by Paulsen Street, and we affirm the trial court’s grant of summary judgment.

A recitation of the underlying facts may be found in Paulsen Street I, supra. As noted in that opinion, Paulsen Street has obtained a judgment against both Bill Williams, Inc. and APF for sums advanced on a line of credit. Id. at 508. Paulsen Street, as the assignee of APF under its written security agreement, also asserted claims against appellees CNL/Insurance America, Inc., EBCO General Agencies, and Insurance Service Underwriters, Inc. (collectively “appellees”) for the return of certain unearned premiums on automobile insurance policies issued by Bill Williams, Inc. and financed through APF. Id. at 507-508. The unearned premiums were instead returned to Bill Williams, Inc. by appellees. Id. at 507. The record shows that Bill Williams, Inc. “d/b/a Agency Premium Finance Co.” was licensed as an insurance premium finance company with the State Insurance Commissioner, while APF was not.

In Paulsen Street I, this court found that the written security agreement between APF and Paulsen Street “gave an assignment to appellant of ‘all accounts receivable of APF, whether now or hereafter existing or acquired.’ ” Id. at 507. As a result, Paulsen Street had standing as the assignee of APF to bring suit on its right to the return of unearned premiums. Id. at 511.

After the case returned to the trial court, Paulsen Street moved for summary judgment, and appellees filed cross-motions for summary judgment. After initially denying summary judgment to all parties, the trial court on its own motion reconsidered its ruling and granted appellees’ motions. In a thorough and well-reasoned order, the trial court discussed at length APF’s failure to obtain the license required by OCGA § 33-22-3 before engaging in the business of financing insurance premiums. From this order, Paulsen Street appeals.

1. In considering the trial court’s ruling, we first note the well-established principle of Georgia law that an assignee of a contract acquires its rights from the assignor, has no more rights under the contract than the assignor, and is subject to all defenses that could have been raised against the assignor. Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992). Since Paulsen Street acquired its interest in the return of unearned premiums through its financing agreement with APF, it can assert its claims only to the extent of APF’s rights.

APF’s right to the return of unearned premiums is created by OCGA § 33-22-14 (a). This provision of the Insurance Premium Finance Company Act states, in pertinent part:

Whenever an insurance policy is canceled and the premiums have been paid by an insurance premium finance company on behalf of the insured, if the insurer has been notified of the existence of the insurance premium finance agreement as required in Code Section 33-22-12, the insurer shall return whatever unearned premiums are due to the insurance premium finance company for the account of the insured. Whenever an insurer, after receiving notification of the existence of the insurance premium finance agreement, returns any unearned premium to anyone other than the insurance premium finance company named in the agreement, the insurer shall be directly responsible to such insurance premium finance company for any and all unearned premiums due as a result of the cancellation.

But this provision must be construed in harmony with another section of the Insurance Premium Finance Company Act, OCGA § 33-22-3 (a), which provides: “No person shall engage in the business of financing insurance premiums in this state without first having obtained a license as a premium finance company from the Commissioner.” While Paulsen Street acknowledges that APF failed to register as a premium finance company, it contends that no such registration and license are necessary to recover under OCGA § 33-22-14. This contention is without merit.

Under well-established Georgia law,

[w]here a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable. Accordingly, at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery.

(Citations and punctuation omitted.) Bowers v. Howell, 203 Ga. App. 636-637 (1) (417 SE2d 392) (1992).

It is obvious from the Act itself that it is intended for the regulation of a business in the public interest rather than merely for revenue production. A license cannot be issued until the Insurance Commissioner is satisfied that the person to be licensed is competent and trustworthy; has a good business reputation and is qualified in terms of experience, training, or education; if a corporation, is incorporated or authorized to transact business under the laws of Georgia; and “[w]ill contribute to and promote the convenience and advantage of the citizens of this state.” OCGA § 33-22-4 (b) (1)-(4). Applicants for a license are required to meet certain capital requirements and make provision for the deposit of securities or filing of a bond with the Commissioner. OCGA § 33-22-5. The Commissioner also is vested with the authority to demand and to inspect the holder’s records “at any time.” OCGA § 33-22-7 (c). Finally, the license can be revoked on a variety of substantive grounds, including the holder’s misappropriation of funds, unsound condition or a condition that would “render the future transaction of business in this state hazardous to the public,” violation of the provisions of the Act, or if “[t]he holder of the license has otherwise shown himself untrustworthy or incompetent to act as a premium finance company.” OCGA § 33-22-6 (a) (3)-(6).

We conclude that the required license is regulatory in nature, and that the failure of APF to obtain a license in its own name forecloses any claim it had against appellees under OCGA § 33-22-14 for the return of unearned premiums. Because Paulsen Street has no more right to the unearned premiums than could be assigned to it by APF, its claim must fail.

Paulsen Street argues that OCGA § 33-22-14 (a) is a statutory rather than a contractual remedy and thus not subject to the controlling law. But the statute itself repeatedly refers to the “insurance premium finance agreement” and to the unearned premiums due under its terms. Any recovery under OCGA § 33-22-14 (a) therefore derives from the underlying agreement; if that contract is void and unenforceable, it will not support a recovery, and no right exists to be enforced by the statute.

Paulsen Street also argues that a distinction may be drawn between a “licensee” and an “insurance premium finance company,” separately defined in OCGA § 33-22-2 (2) and (3), so that an unlicensed entity illegally doing business as an “insurance premium finance company” may nevertheless recover under OCGA § 33-22-14, because that portion of the Act does not contain the word “licensee.” We note that the Act appears to use the term “insurance premium finance company” or “premium finance company” interchangeably with “licensee” throughout. More importantly, we will not construe a statute so as to render any portion of it meaningless, and we must reconcile, if possible, any potential conflicts between different sections in light of the entire statutory scheme and the legislative intent. Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997). Paul-sen Street’s argument would render the legislative requirements of licensing, investigation, and inspection by the Insurance Commissioner wholly meaningless; an individual or entity could operate as a premium finance company and reap the benefits of the statutory scheme without submitting to any of the law’s requirements or responsibilities. This result would be contrary to the intention of the legislature and the decisions of this court. As we have observed in the past, the strict rule barring recovery “has been held to be necessary to compel compliance with the licensure requirement. [Cit.]” Mgmt. Compensation Group/Southeast v. United Security Employee Programs, 194 Ga. App. 99, 101 (2) (389 SE2d 525) (1989).

The facts of this case demonstrate the potential for confusion and even fraud if the licensing requirement is not strictly enforced. OCGA § 33-22-14 (a) provides that an insurer shall be directly responsible to a premium finance company when it “returns any unearned premium to anyone other than the insurance premium finance company named in the agreement.” But the only license in the record was issued in the name of “Bill Williams, Inc. d/b/a Agency Premium Finance Co.” The contracts with insureds identified the entity only as “Agency Premium Finance Co.” Appellees could have reasonably believed, on account of APF’s failure to obtain a license, that “Agency Premium Finance Co.” was merely a trade name of the licensed corporation and that payment to Bill Williams, Inc. was proper.

The record also contains evidence that the financial affairs of Bill Williams, Inc. and APF were interrelated and that Paulsen Street, through its principal, was aware of this relationship. Paulsen Street’s general partner, Jackson, provided accounting services to Bill Williams, Inc. He was also the secretary/treasurer of APF and provided accounting services for APF. He signed the security agreement both as general partner of Paulsen Street and as secretary of APF. On behalf of Paulsen Street, Jackson himself wrote checks to both Bill Williams, Inc. and APF to fund the revolving line of credit, and Bill Williams, Inc. forwarded premium funds to insurers or general agents. Jackson also testified that APF’s employees were paid through Bill Williams, Inc.

Under these circumstances, enforcing an obligation to return unearned premiums to an unlicensed entity, in preference to the licensed company itself, would be directly contrary to the intention of the statute. This is particularly true when the unlicensed entity is shown only as a trade name of a licensed premium finance company in the Commissioner’s records and when the financial and business relations between the licensed and the unlicensed entity are so interrelated as to lend support to the accuracy of the license on file with the Commissioner. The trial court did not err in granting summary judgment to appellees.

2. Paulsen Street also asserts that appellees are hable on a theory of money had and received. But we need not reach this contention because Paulsen Street failed to raise it in a timely fashion below. The complaint does not state a claim for money had and received; more importantly, no such claim appears in the final pretrial order, and the record does not reflect that Paulsen Street ever amended the pretrial order to state such a claim. See Goodman v. Frolik & Co., 233 Ga. App. 376, 379 (2) (504 SE2d 223) (1998).

3. Paulsen Street’s remaining claims of conversion and civil Racketeer Influenced & Corrupt Organizations (“RICO”) are also without merit. As the trial court recognized, all of Paulsen Street’s claims derive from its written security agreement with APF. That agreement merely assigned Paulsen Street a security interest in APF’s promissory notes, accounts receivable, chattel paper, and premium finance contracts.

In addition, Paulsen Street lacks standing to bring any direct action against appellees in tort, “because it was not directly harmed by any tortious act or omission by [appellees] and only indirectly suffered a loss. The right to bring a personal injury action, even for fraud, cannot be assigned or subrogated, except by statute. [Cits.]” Generali — U S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 281 (2) (e) (493 SE2d 731) (1997).

The tort of conversion involves an

unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. However, the plaintiff must show title, either general or special, in himself at the time of the institution of the suit, actual possession, or right of immediate possession.

(Citations and punctuation omitted.) King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 585 (428 SE2d 586) (1993). Here, Paulsen Street’s claim of conversion is based entirely on its assertion that appellees failed to credit unearned premiums to APF in accordance with the Insurance Premium Finance Company Act. It alleges that appellees thereby converted unearned premiums owed to APF, in which Paul-sen Street had an interest pursuant to its security agreement. But, as discussed above, because APF had no valid claim under the Act, it could assign no claim to unearned premiums, and Paulsen Street therefore had no title or possessory interest it could assert in the unearned premiums.

Similarly, Paulsen Street’s claim under the Georgia RICO statute, OCGA §§ 16-14-1 through 16-14-15, fails because it too is based on the alleged conversion of unearned premiums. Furthermore, Paul-sen Street has not shown the proximate cause required in order to maintain a claim under RICO. See Maddox v. Southern Engineering Co., 231 Ga. App. 802, 805-806 (500 SE2d 591) (1998). Paulsen Street has failed to show a direct causal connection between its injury, the failure of APF and Bill Williams, Inc. to repay its line of credit, and appellees’ return of unearned premiums to Bill Williams, Inc.

Decided March 18,1999.

Inglesby, Falligant, Horne, Courington & Nash, Thomas A. Nash, Jr., James F. Shehane IV, for appellant.

Lane, O’Brien & Caswell, Stephen J. Caswell, Michael A. Penn, for appellees.

Paulsen Street has failed to create any material issue of fact as to any theory of recovery against appellees, and the trial court correctly ruled that appellees were entitled to summary judgment.

Judgment affirmed.

Johnson, C. J., and Barnes, J, concur.


text:
    A98A2290.
    SCROGGINS v. THE STATE.
    (514 SE2d 252)
   Smith, Judge.

Bennie Rufus Scroggins was indicted on one count of aggravated child molestation, three counts of child molestation, and one count of attempted child molestation. He was tried before a jury, which found him guilty on all counts. His motion for new trial, as amended, was denied, and he brings this appeal, raising six enumerations of error. We find that the evidence presented at trial was sufficient to authorize the jury to find Scroggins guilty of the offenses charged, but we also find that errors at trial, mandate retrial. We therefore reverse the judgment below and remand this case to the trial court.

1. Construed to support the verdict, the evidence presented at trial showed that two unrelated young girls, H. W. and S. W, accused Scroggins of molesting them on more than one occasion. The State presented the testimony of a police officer who interviewed both victims and taped the interviews; both tapes were played for the jury. Two doctors testified that they examined one of the victims. A pediatrician testified she examined H. W. in July 1996. Her physical findings showed an enlarged vaginal opening consistent with either digital or penile penetration, and H. W. told her that Scroggins had molested her “last Christmas.” A family practice physician testified that H. W. was referred to him by the county health department in October 1996 because she was complaining of a vaginal discharge associated with itching and burning and because she had told a psychologist treating her that she had been abused sexually approximately a year previously. The doctor’s physical examination revealed “a small healed lesion . . . consistent with previous penetration.” H. W. told him that Scroggins had abused her. The psychologist testified that H. W. was suicidal, her grades had plummeted, and she was having nightmares and wetting her bed. According to this witness, these symptoms were consistent with a sexually abused child. H. W. told her that Scroggins had molested her.

Both victims testified at trial that Scroggins molested them more than once, and their testimony alone was sufficient to support Scrog-gins’s conviction on all charges. The evidence was sufficient to authorize the jury to find Scroggins guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We find no merit in Scroggins’s contention that the trial court erred in admitting the taped statements of the victims. We reject Scroggins’s argument that because such tapes are “inconsistent” with the statutory exception to the hearsay rule that permits their introduction, we should overrule established case law allowing them into evidence. OCGA § 24-3-16 authorizes the admission of out-of-court statements made by children concerning sexual abuse if the children are “available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Audiotapes, as well as videotapes, have been held admissible under this statute. See, e.g., Havron v. State, 234 Ga. App. 413-414 (1) (506 SE2d 421) (1998) (video and audio tapes admitted); Heard v. State, 221 Ga. App. 166, 167-168 (2) (471 SE2d 22) (1996) (videotape admitted).

The victims in this case were available to testify, and they did so. Scroggins argues that the tape of H. W.’s interview did not provide sufficient indicia of reliability because it was made after interviewing the mother in the child’s presence. The State concedes, and we agree, that this is not the best practice. It creates potential problems by providing an opportunity for a parent to make comments that are inadmissible and must later be redacted if the tape is to be used at trial. Nevertheless, the interviewing officer testified that the victim was not coached and spoke voluntarily, and no evidence was presented showing that this tape was unreliable or inadmissible.

3. Scroggins alleges error in the denial of his motion to sever for separate trial the offenses involving S. W.

Offenses may be joined for trial when they are based on the same or similar “conduct” so as to evince a common scheme, plan, or modus operandi. [Cits.] Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar “character.” [Cits.] If a trial court determines that joinder was proper, severance is not mandatory, but discretionary. [Cit.]

(Emphasis in original.) Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515) (1997).

In this case, similar “conduct” was involved even though the identical pattern of molestation was not used with both victims. Both victims were approximately the same age, both were molested while alone in a darkened room, and in both cases the victims alleged that Scroggins touched them with his penis.

Moreover, because of the liberal extension of the rule allowing similar transaction evidence in sexual offense cases, the molestation of each victim would have been admissible as a similar transaction at the trial of the other even had the offenses been severed. Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995). Under these circumstances, we find no abuse of discretion in the trial court’s denial of Scroggins’s motion to sever.

4. Although Scroggins maintains the trial court erred in denying his motion for a pretrial examination of the State’s psychiatric experts, the record does not show that the trial court refused to allow such an examination.

A hearing was held on several pretrial motions, including this one. The transcript shows that at the hearing, defense counsel informed the court that he had approached the experts, psychiatrists or psychologists who examined or treated the victims, seeking to interview them before trial. The experts indicated they were “willing to talk” to defense counsel if they could be certain such conversations would not be in violation of the psychiatrist/patient or psychologist/ patient privilege set forth in OCGA § 24-9-21 (5) and (6).

The privilege is absolute, and unless it is waived, the information sought is not discoverable. Freeman v. State, 196 Ga. App. 343 (1) (396 SE2d 69) (1990). But at the motions hearing, the issue of waiver was not resolved. Certain of the victims’ medical records had been requested by defense counsel, and resolution of the question of whether the victims had waived their privilege hinged upon whether and to what extent these records could be disclosed to the defense. The trial court made no ruling at the hearing, but informed counsel that it would look at the records and make a determination of what the defense could see.

Scroggins never further pressed his motion, but it is apparent that the psychiatric experts’ reluctance to speak to the defense before trial did not impact adversely on Scroggins’s defense. Only one such expert testified, and this expert was subjected to a thorough and sifting cross-examination by Scroggins. Although the parties do not reveal which records or documents were eventually discovered, it is clear from the trial transcript that the psychologist who testified summarized her clinical notes and turned them over to the court and that the defense, in turn, received certain documents. We find no error. See Kelly v. State, 197 Ga. App. 811, 813 (1) (399 SE2d 568) (1990).

5. Scroggins contends the trial court erred by refusing to allow the jury to rehear the testimony of the two doctors who testified at trial. We find merit in this contention.

Closing arguments were not recorded, but the parties agree that a dispute arose during closing argument for the defense, when Scrog-gins’s attorney recalled the testimony of Dr. Alan Woodrow Jones, the family practitioner who testified for the State. The State objected to the argument, asserting that defense counsel was misstating the evidence. The trial court interjected a comment, but the prosecutor withdrew his objection and Scroggins’s closing argument proceeded.

Later, during jury deliberations, the court informed counsel that the jury had requested a “transcript” of the testimony of the two medical doctors who testified. In the ensuing colloquy, the court indicated it could not comply with the request because no transcript existed. Defense counsel suggested it would be possible to play the doctors’ testimony back for the jury, but the prosecution objected on the ground that this would unduly emphasize the testimony of those two witnesses. The court denied the request for playback and instructed the members of the jury that they must recall the testimony of the doctors from their own individual memories.

Ordinarily, “[w]hether the trial court will require the court reporter to read former testimony is a matter resting in its sound discretion. [Cit.]” Davis v. State, 266 Ga. 801, 802-803 (4) (471 SE2d 191) (1996). But even such discretion has bounds. And in this case, a question had been raised in the presence of the jury about the substance of that very testimony. A serious disagreement existed regarding whether defense counsel misstated the evidence. And allowing the jury to rehear the disputed testimony would have settled that dispute unequivocally, while causing little, if any, harm.

The record shows that H. W. accused Scroggins of molesting her in December 1995, but she saw Dr. Jones for a urinary tract infection some ten months later, in October 1996. The transcript shows that Dr. Jones testified there were three times in her life when a woman is prone to urinary tract infections: in the first two years of life; when she becomes sexually active; and after menopause. Using Dr. Jones’s testimony regarding the occurrence of urinary infections, defense counsel argued to the jury that it was unlikely that Scroggins molested the victim. Given defense counsel’s purpose in referring to the doctor’s testimony and its importance to the defense, together with the specific request made by the jury to clarify the doctors’ testimony, we conclude that the trial court abused its discretion in refusing to allow the jury to hear it. Scroggins must be granted a new trial.

6. Because Scroggins’s conviction is reversed and he will be retried, we need not address in full his contention that the trial court erred in commenting on the evidence. We will presume that any error will not recur at retrial. We are also mindful that closing argument was not recorded (notwithstanding trial defense counsel’s testimony at the post-trial hearing that he had requested “a full transcript”) and that we must presume that the trial court’s conduct of the trial was proper. Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998). But we also note that after the jury returned its verdict in this case, the trial court allowed defense counsel to state for the record his recollection of the events during his closing argument; this attorney also testified at the post-trial hearing, providing evidence as to what transpired during the unrecorded closing arguments. Because Scroggins will be retried, we are constrained to take this opportunity to state our view of the circumstances that combined in this case to prejudice him so that those circumstances do not recur and to caution the bench and bar regarding similar circumstances.

The trial transcript shows that when given the opportunity to state his recollection of events for the record, defense counsel stated that during his closing argument the prosecutor objected on the ground that he was misstating Dr. Jones’s testimony. He recalled that the trial court also commented that its recollection of Dr. Jones’s testimony agreed with that of the prosecutor and that defense counsel was not representing that testimony correctly to the jury. The court and both attorneys agreed for the prosecutor to withdraw his objection, and the court commented (but did not so instruct the jury) that it would let the jury decide from its own recollection what the doctor’s testimony had been. The testimony at the post-trial hearing was to the same effect.

After trial, defense counsel filed a post-trial “Suggestion of Incomplete Record,” attempting to produce a transcript of the omitted portions of the record as permitted under OCGA § 5-6-41 (f). At the hearing on this motion, defense counsel suggested that an order was needed to perfect the record, under OCGA § 5-6-41 (f). Although the trial court apparently neglected to do this, defense counsel followed the procedure set out in our Code to perfect the record for appeal when a transcript is unavailable. Compare Stubbs v. State, 220 Ga. App. 106, 109-110 (5) (469 SE2d 229) (1996).

Further, affidavits from the clerk of court and a juror support defense counsel’s recollection that the trial court agreed (erroneously) with the prosecutor, in the presence of the jury, that defense counsel was misstating the evidence and that the court’s recollection agreed with that of the prosecutor. Counteraffidavits filed by the State in an apparent effort to repair the damage fail to rebut the material portions of these affidavits. The prosecutor does not dispute in material part, and various disinterested parties agree, that events indeed transpired as the defense alleges. If these allegations are in fact correct, then no question exists that the trial court violated the prohibition against commenting on the evidence found in OCGA § 17-8-57. That Code section provides that it is error for any judge during the progress of any criminal case, not only to express an opinion as to the guilt or innocence of the accused, but also “to express or intimate his opinion as to what has or has not been proved.” The proper procedure would have been to excuse the jury during the discussion and then to instruct the jurors that any dispute regarding what had been proved was for them to resolve.

Decided March 18,1999.

Ellis C. Smith, James C. Thornton, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Judgment reversed.

       This testimony appears to have been stated accurately during closing argument by defense counsel.


author: Blackburn, Judge.

text:
    A98A2420, A98A2421.
    K-MART CORPORATION v. HACKETT et al.; and vice versa.
    (514 SE2d 884)
   Blackburn, Judge.

K-Mart appeals the judgment in Case No. A98A2420, a tort action, in which liability was established by default judgment, following jury trial as to damages. K-Mart contends that the trial court erred in denying its motion to set aside default judgment and request for leave to file out-of-time answer and in entering judgment against it for punitive damages.

In Case No. A98A2421, Antonio Hackett and Allison Studdard (plaintiffs) appeal the trial court’s grant of K-Mart’s motion to withdraw admissions of fact and the imposition of a cap on the punitive damage award, pursuant to OCGA § 51-12-5.1 (g).

Plaintiffs filed separate tort actions against K-Mart, alleging that as they were exiting the Super K Center in Rome, Georgia, on November 15,1996, they were violently attacked by a K-Mart security guard who committed an assault and battery upon them. The complaints further alleged that the K-Mart security guard then falsely arrested and imprisoned Hackett in a malicious manner. The complaints sought compensatory and punitive damages against K-Mart.

A default judgment as to liability was entered in each of those cases. The trial court denied K-Mart’s motion to set aside default judgment and request for leave to file out-of-time answer. The trial court granted K-Mart’s motion to withdraw admissions of fact. Thereafter, a jury trial was held to determine compensatory and punitive damages. The jury awarded compensatory damages of $60,000 to Hackett and $50,000 to Studdard. After finding that the defendant did not act with the specific intent to cause harm, the jury awarded $600,000 in punitive damages to each of the plaintiffs. Judgment was entered on June 19, 1998.

Case No. A98A2420

1. K-Mart contends that the trial court erred in denying its motion to open the default judgment entered against it, enumerating only that the evidence demanded a finding of excusable neglect. We disagree and affirm as to this enumeration.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.

(Citations, punctuation and emphasis omitted.) Follmer v. Perry, 229 Ga. App. 257, 258 (1) (493 SE2d 631) (1997).

The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.

(Punctuation omitted.) Id.

In the present case, the complaints were filed on July 7, 1997, in the Superior Court of Floyd County. The complaints were served on K-Mart by the sheriff on July 8, 1997. Service was accepted on behalf of K-Mart by Tony Barnes, an assistant hard-lines manager, at the Super K Center. Barnes deposed that he brought the complaints to the store manager’s attention, who told him to take them to the loss control department, which he did. Barnes did not recall precisely to whom he delivered the complaints, but he believed employees named Clint and Chad were present in the loss control office when he dropped them off. Barnes had no knowledge as to what happened to the complaints after he delivered them to the loss control office.

In the meantime, plaintiffs’ attorney forwarded a courtesy copy of Hackett’s complaint to an adjuster working for K-Mart which was received on July 11, 1997. Although the complaint was not stamped filed, the attached letter indicated that the complaint was being forwarded to the Clerk of Floyd Superior Court for filing and service on the same date as the letter to the adjuster. Plaintiffs’ counsel also sent the same adjuster a copy of Studdard’s complaint. On July 14, 1997, the adjuster and plaintiffs’ counsel discussed settlement, but no agreement was reached. Plaintiffs’ counsel testified that during this call he informed the adjuster that the complaints had been served and that he would talk to K-Mart’s lawyer once the answers had been filed. On August 26, 1997, plaintiffs’ counsel called the adjuster and asked who was representing K-Mart. The adjuster responded that no attorney had been retained because K-Mart had not been served. Plaintiffs’ counsel informed her that she was mistaken before concluding the conversation. That same day, August 26, 1997, Hackett and Studdard obtained default judgments against K-Mart.

K-Mart contends that the adjuster’s failure to forward the copies of the complaints to headquarters and retain counsel was excusable because she is not an attorney and should not be held to the same standard as an attorney. K-Mart also argues that their failure to timely answer the complaints was excusable, contending that the actions of a former employee, Martin Davis, were intentional and done to harm K-Mart.

Davis deposed that at some time in August he discovered the service copies of the complaints in a file drawer used to store training materials. He left the papers where he found them. Shortly after he saw the suit papers, he resigned as a condition of a workers’ compensation settlement he received. K-Mart maintains that had Davis brought the suit papers to the attention of another manager, the complaints would have been forwarded to K-Mart’s headquarters within the time allowed to respond to the complaints or at least within the time to open default as a matter of right. However, K-Mart’s arguments are mere assertions, unsupported by the record. First, Davis is not sure of the exact date he found the complaints. He deposed that “shortly after” he saw the service copies of the complaints, he resigned, which was on August 28, 1997. Therefore, it is not clear whether K-Mart could have opened the default as a matter of right. Second, Davis deposed that he had been informed that the complaints had been forwarded to headquarters. And third, Barnes deposed that he showed the complaints to the store manager after he was served with them, so the store manager was already aware of the service of the complaints. Yet, the record contains no testimony from the store manager as to why he failed to follow up on the status of these lawsuits.

It is undisputed that K-Mart was properly served, that it received plaintiffs’ complaints, as well as telephone communication from plaintiffs’ attorney, that the store manager was aware of the service of the complaint, and that it did not timely answer the complaints. K-Mart contends that it was the actions and failures of its employees and agents, none of whom were attorneys, which resulted in its failure to answer the complaint as required by law, and therefore, K-Mart should be excused for such failure. K-Mart chooses its employees and agents and is responsible for their actions and failures. It is also responsible for their supervision.

Applying K-Mart’s argument to its logical conclusion, plaintiffs would be excused for the failure of their agents to timely file a complaint within the statute of limitation. In such a case, it would not have been the client’s fault that the filing date was missed. This the law does not permit. While the law does provide a limited right for defendants to avoid the responsibility for their failure to timely answer plaintiffs’ complaint, defendants are not permitted to freely open default or set aside default judgments unless, in the discretion of the trial court, they meet the statutory requirements for such action. The trial court concluded that K-Mart was not entitled to the relief sought.'

We cannot say that the trial court abused its discretion in denying K-Mart’s motion to set aside the default judgment entered against it and to open default. As this is the sole error enumerated which relates to the trial court’s failure to set aside the default judgment, we do not address those separate arguments made in K-Mart’s brief concerning the trial court’s imposition of time limitations on the presentation of evidence at the hearing on K-Mart’s motion to set aside default judgment. Georgia law requires that each error be separately enumerated. OCGA § 5-6-40; Court of Appeals Rule 22. Parties are not permitted to enlarge their enumeration of errors by including additional issues in their brief. Leniston v. Bonfiglio, 138 Ga. App. 151 (226 SE2d 1) (1976); MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980). Thus, we treat those arguments as having been abandoned by K-Mart as they were not separately enumerated. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839 (418 SE2d 119) (1992).

2. In its second enumeration of error, K-Mart contends that the trial court erred in entering a judgment against it for punitive damages in any amount, based solely on the contention that punitive damages were not permitted for torts committed between July 1, 1987 and April 14,1997. Therefore, we address only that issue in this division.

On appeal, K-Mart argues, for the first time, that punitive damages were not statutorily available for torts committed between July 1, 1987 and April 14, 1997. Although K-Mart acknowledges that it did not preserve this enumeration of error by raising it in the trial court, it contends that this Court should consider its enumeration of error under the plain error exception noted in Drug Emporium v. Peaks, 227 Ga. App. 121, 125-127 (488 SE2d 500) (1997). Interestingly, Drug Emporium involves a cause of action which arose in approximately 1994-1995, and a default judgment was entered on December 29, 1995. Contrary to K-Mart’s position, Drug Emporium clearly approved a default judgment as to liability for punitive damages in a proper case. Such a proper case exists, where the complaint outlines the facts upon which the claim is made, alleges malicious conduct by the defendant, and seeks punitive damages.

Here, by failing to answer plaintiffs’ complaints, K-Mart judicially acknowledged that as Hackett and Studdard exited the K-Mart store, they were violently attacked by a K-Mart security guard and that the security guard acted maliciously in falsely arresting and imprisoning Hackett. Such facts clearly support an award of punitive damages. No clear error exists in the present case to support the application of the clear error rule, as there was in Drug Emporium. Drug Emporium is factually distinguishable.

In Drug Emporium, the trial court, with full knowledge of the applicable Code section, gave the punitive damages jury charge requested by the plaintiff, which was based on the former law. The trial court also failed to follow the appropriate procedures regarding punitive damages and awarded such damages to a party who did not pray for them. This Court held:

We cannot affirm an award of punitive damages in which the trial court declined to follow the procedures and standards now required by OCGA § 51-12-5.1, awarded punitive damages against appellant Drug Emporium to a party who did not pray for them, and charged the jury based on an outdated punitive damage Code section.

Id. at 124 (2).

K-Mart argues that because of the language used by the legislature in its amendment of OCGA § 51-12-5.1 (h) on April 14, 1997, punitive damages were not recoverable in Georgia during the period of July 1, 1987 through April 14, 1997. K-Mart argues that since this amendment struck the entire original Code section 51-12-5.1 (h), enacted in 1987, which applied to “causes of action arising on or after July 1, 1987,” and enacted a new Code section 51-12-5.1 (h), which provided that “[t]his Code section shall apply only to causes of action arising on or after April 14, 1997,” punitive damages were unavailable in this case where the cause of action arose on November 15, 1996. See Ga. L. 1997, p. 837, § 1; Ga. L. 1987, pp. 915, 919, § 5.

The April 14, 1997 amendment of OCGA § 51-12-5.1 was an adjustment to the statute which did not change the basic structure of the law. It provided that its purpose was to remove “the limitation on punitive damages for tort cases involving the influence of intoxicating or toxic agents on the defendant; to eliminate a provision relating to liability of third parties as joint tortfeasors; to provide for an effective date; to provide for applicability; to repeal conflicting laws; and for other purposes.” Ga. L. 1997, p. 837, § 1. It is clear from the above language, that the intention of the legislature in the 1997 amendment was to simply remove a limitation on punitive damages awards in Georgia after April 14, 1997, not to create a ten-year gap in the availability of such damages to the citizens of Georgia.

It has long been recognized that where a repealing statute reenacts the old law, the old law operates without interruption. See Sayer v. Brown, 119 Ga. 539, hn. 6 (46 SE 649) (1904); Webb v. Echols, 211 Ga. 724, 727 (88 SE2d 625) (1955). This statutory construction principle has been used in instances when such a construction was necessary to save an act of the General Assembly from unconstitutionality or when such a construction eliminated an ambiguity created by the General Assembly. At best, it could be argued that the language of the 1997 amendment creates an ambiguity as to the legislature’s intention, which ambiguity we resolve in favor of the application of the punitive damages statute to the case at hand.

We note that even if the legislature had created the ten-year gap in the availability of statutory punitive damages as contended by ElMart, the common law right to punitive damages would then apply. In the absence of a governing statute, we look to the common law for guidance. Cf. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 716 (1) (240 SE2d 100) (1977), rev’d on other grounds, Trust Co. Bank v. Union Circulation Co., 241 Ga. 343 (245 SE2d 297) (1978); Maynard v. Readdick, 128 Ga. App. 368, 370 (4) (196 SE2d 688) (1973).

The right of the jury to give exemplary damages for injuries wantonly, recklessly, or maliciously inflicted has been said to be “as old as the right of trial by jury itself”; and “is not, as many seem to suppose, an innovation upon the rules of the common law.” Walton, J., in Goddard v. Grand Trunk R. Co., 57 Me. 218, 2 Am. Rep. 39.

12 Am. & Eng. Enc. Law, 5, n. 3 (1899). Exemplary damages

“is a well-established principle of the common law,” said Mr. Justice Grier in Day v. Woodworth, 13 How. (U. S.) 363, “that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.”

12 Am. & Eng. Enc. Law, 7, n. 6 (1899).

3. K-Mart contends that the underlying complaints fail to adequately allege plaintiffs’ entitlement to punitive damages under OCGA § 51-12-5.1. Plaintiffs’ complaints allege that as Hackett and Studdard exited the K-Mart store, they were violently attacked by a K-Mart security guard and that the security guard acted maliciously in falsely arresting and imprisoning Hackett. Based on the actions by K-Mart’s employees, plaintiffs prayed for compensatory as well as punitive damages. The allegations, which stand admitted as a result of K-Mart’s failure to answer the complaint, clearly support an award of punitive damages. Cohran v. Carlin, 254 Ga. 580, 585 (331 SE2d 523) (1985); Etheridge v. Kay, 153 Ga. App. 399 (265 SE2d 332) (1980); Berkner v. Dannenberg, 116 Ga. 954, hn. 3 (43 SE 463) (1903).

Case No. A98A2421

4. In their first enumeration of error in their cross-appeal, the plaintiffs contend that the trial court erred in allowing K-Mart to withdraw the admission that each plaintiff individually had suffered $2,500,000 in damages as a result of K-Mart’s actions. K-Mart failed to respond to plaintiffs’ request to admit that “the Defendant has injured and damaged each Plaintiff in the amount of $2,500,000.00 as a result of the incidents alleged in the complaints filed in the above-styled cases.”

The trial court did not abuse its discretion in allowing such admission to be withdrawn because this Court has previously held that the amount of damages a plaintiff has suffered is not a proper request to admit because the answer is outside the knowledge of the defendant. See Cole v. Smith, 182 Ga. App. 59, 63-64 (354 SE2d 835) (1987); see also Rowland v. Tsay, 213 Ga. App. 679 (1) (445 SE2d 822) (1994) (withdrawal of admission pursuant to the trial court’s discretion).

5. Plaintiffs contend that the trial court erred in applying the $250,000 cap contained in OCGA § 51-12-5.1 (g) to their punitive damages award. Plaintiffs argue that K-Mart’s intent to cause damage to them is established by its failure to timely answer the complaint, and that the question of such intent should not have been submitted to the jury in relation to the prayers for punitive damages as required by McDaniel v. Elliott, 269 Ga. 262 (497 SE2d 786) (1998).

Decided March 18,1999

Alston & Bird, James C. Grant, Jeffrey J. Swart, for appellant.

Cook & Connelly, Bobby Lee Cook, Gregory, Christy & Maniklal, Hardy Gregory, Jr., for appellees.

The record reflects that this issue was submitted to the jury with the concurrence of both sides. Plaintiffs’ counsel specifically requested that the trial court charge the jury on this matter and submit the question of K-Mart’s intent to the jury pursuant to McDaniel v. Elliott, supra. The jury specifically found that K-Mart did not intend to harm the plaintiffs, and thus the court properly applied the $250,000 cap on the punitive damages required by OCGA § 51-12-5.1 (g). A party cannot complain, where as here, the trial court adopts the procedures requested by such party. In any event, the trial court properly followed the requirements outlined in Elliott v. McDaniel, supra, as to punitive damages.

Judgments affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Blackburn, Judge. Beasley, Presiding Judge,

text:
    A98A2457.
    THE STATE v. FORTHE.
    (514 SE2d 890)
   Blackburn, Judge.

Pursuant to OCGA § 5-7-1, the State appeals the trial court’s order granting the defendant’s demurrer to the underlying indictment alleging eight counts of theft by taking. In seven counts, the indictment alleged that the defendant took money having a value of less than $500, misdemeanors, and, in one count, the indictment alleged that the defendant took money having a value of more than $500, a felony. The defendant’s demurrer was based on the State’s failure to allege the specific amount of money taken with regard to each count. The trial court relied on this Court’s decision in Division 2 of State v. Stamey, 211 Ga. App. 837, 839 (2) (440 SE2d 725) (1994), to grant the defendant’s demurrer on the grounds that the State failed to allege in the indictment the specific amount taken with regard to each count.

On appeal, the State correctly argues that a long line of cases hold that an allegation of the specific amount of money taken is not required because property value is not an element of the crime charged, but applies only to sentencing. See Jackson v. State, 267 Ga. 130, 131 (3) (475 SE2d 637) (1996); Wilson v. Reed, 246 Ga. 743, 745 (2) (272 SE2d 699) (1980); Mack v. Ricketts, 236 Ga. 86, 87 (222 SE2d 337) (1976). See also Hight v. State, 221 Ga. App. 574, 575 (2) (472 SE2d 113) (1996) (“[v]alue is not an element of theft by taking as proscribed by OCGA § 16-8-2”). The State contends that the opinion in Division 2 of Stamey is in direct conflict with this established case law.

In Stamey, an indictment was returned against the defendants charging them with theft by taking based on allegations that

“between January 2, 1991, and January 10, 1992” they “did unlawfully being in lawful possession of property, to-wit: lawful U. S. Currency, the property of [another], appropriate said property, with the intention of depriving said owner of said property, the value of said property exceeding $500.”

(Emphasis supplied.) Id. at 837. On defendants’ motion, the trial court quashed the State’s indictment on grounds that it failed to specifically identify the form of currency taken, the amount taken (Division 2), when it was taken, and whether the alleged offense arose out of a series of thefts or a single occurrence. This Court affirmed on two separate and independent grounds. In the first division, we determined that the indictment was defective for failing to identify the date or dates which the alleged offense occurred. Id. at 838 (1). In the second division, we held that the trial “court did not err in finding the indictment defective for failing to more specifically identify the amount taken.” (Emphasis supplied.) Id. at 839 (2). This Court held that “it was necessary for the indictment to allege whether the value of the currency taken was over $500 in order to apprise defendants of whether the offense charged is a misdemeanor or felony.” Id. The indictment specifically alleged that the amount taken was in excess of $500 thereby apprising the defendant that he was charged with a felony rather than a misdemeanor. Id.

We further cited dicta in Frisbie v. United States, 157 U. S. 160 (15 SC 586, 39 LE 657) (1895), for the proposition that “it is not necessary for the indictment to allege the specific amount taken if such amount is unknown to the grand jury and that fact is alleged in the indictment.” Stamey, supra at 839 (2).

The Frisbie case concerned a federal act that made it a misdemeanor to charge a person more than $10 to apply for a pension under the federal program. The act was designed to stop gouging. In Frisbie, the defendant was indicted under the act for charging a widow “in excess of $10” for applying for a pension after the death of her Civil War veteran husband. The defendant contended that the indictment was defective because it did not state the specific amount “in excess of $10” which was charged. The Court held that it did not matter. At no time did Frisbie hold that it was necessary for an indictment to allege either (1) the specific amount taken or (2) that the specific amount taken is unknown to the grand jury. What the Court said was “if the amount of the excess was unknown it was proper to allege that fact in the indictment, and, in the absence of any testimony to the contrary, it will be presumed that the amount of the excess was, in fact, unknown to the grand jury.” Frisbie, supra at 167.

The real holding of Frisbie as to this issue is,

[t]he question of the guilt of the defendant does not depend on the amount of the excess. The rule de minimis non curat lext] has no such application in criminal cases. The stealing of one cent is larceny as truly as the stealing of a thousand dollars. The amount may vary the degree, but it does not change the character of the crime.

Id.

Thus, contrary to Stamey, the Frisbie case supports the long line of Georgia cases which hold that, with regard to theft by taking, the specific amount does not have to be alleged in an indictment because, other than “in excess of $500,” the specific amount does not matter as an essential element of the crime.

As the indictment in Stamey alleged theft of property in “excess of $500,” it was sufficient to apprise the defendant that he was facing a felony theft offense and meets the very test outlined therein. Id. at 839. Therefore, Division 2 of Stamey is hereby overruled.

An indictment for theft by taking that alleges the amount taken as “in excess of $500” or “under $500” so as to apprise a defendant that he is facing either a felony or a misdemeanor charge is not subject to demurrer, either (a) general or (b) special.

(a) An indictment which fails to allege the specific amount taken is not subject to a general demurrer, because such amount is not an essential element of the offense. Thus, even though the amount taken is not alleged, a defendant cannot admit the facts alleged in the indictment and still be innocent of the offense.

(b)

The true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Punctuation omitted; emphasis supplied.) Jordan v. State, 220 Ga. App. 627, 629 (470 SE2d 242) (1996). “It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.” State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977).

Consider: If, because of double jeopardy and/or defense preparation concerns, a theft by taking indictment is subject to a special demurrer for failure to allege the specific amount taken, then adding the phrase “to the grand jury unknown” would not cure the alleged defect. That is what is so antithetic about the dissent’s position that a theft by taking indictment must allege either one or the other in order to survive a special demurrer. See Stamey, supra at 839. Fortunately, that is not the law. Instead, it is not necessary for a theft by taking indictment to allege the specific amount taken. And if the phrase “to the grand jury unknown” is left out of the indictment, it will be “presumed that the amount. . . was, in fact, unknown to the grand jury.” Frisbie, supra at 167.

Here, each individual count of the indictment alleges that Forthe — on a date specific — took from Valdosta Monument Company an amount of U. S. currency either “having a value more than” or “having a value less than” $500. The indictment sufficiently apprises Forthe of the charges against him so as to allow him to prepare a defense and, along with the record built thereon, satisfies double jeopardy concerns. The dissent’s contention regarding “trial by ambush,” — notably unsupported by record or defense argument — is better addressed to discovery matters, not the legal sufficiency of the instant theft by taking indictment.

Based on the foregoing, the trial court’s granting of defendant’s demurrer based on Division 2 of Stamey must be reversed.

Judgment reversed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, Smith, Eldridge and Barnes, JJ, concur. Beasley, P. J., and Ruffin, J., dissent.

Beasley, Presiding Judge,

dissenting.

Defendant filed a demurrer to the indictment, on the ground that as to each count, it “fail[ed] to state the amount of currency that the State alleges was taken” and that “[c]urrency is capable of precise counting.”

“A demurrer is a document which is used in order to have the trial judge pass on the sufficiency and appropriateness of some pleading.” (Footnote omitted.) Ga. Crim. Trial Prac. (1998 ed.), § 14-34. General demurrers are used to challenge an indictment on grounds it fails to set out an essential element of the crime or a specific violation of Georgia law or is brought under an unconstitutional statute. Id. at § 14-35. A special demurrer raises an objection to the form of the indictment. Id. at § 14-36. “A defendant has been said to have a right to be tried on an indictment which is perfect in form and substance.” Id. The demurrer in this case is a special demurrer.

The majority incorrectly states that Jackson v. State, 267 Ga. 130, 131 (3) (475 SE2d 637) (1996); Wilson v. Reed, 246 Ga. 743, 745 (2) (272 SE2d 699) (1980); Mack v. Ricketts, 236 Ga. 86, 87 (222 SE2d 337) (1976), and Right v. State, 221 Ga. App. 574, 575 (2) (472 SE2d 113) (1996), hold that an allegation of the specific amount of money taken is not required because property value is not an element of the crime charged but applies only to sentencing.

Jackson involved the crime of theft by taking an automobile. Noting that the value of the stolen automobile is neither an element of this offense nor relevant to punishment for it, the Court in Jackson held that the allegation in the indictment that the value of the automobile exceeded $100 was mere surplusage and need not have been proven.

In Wilson, the defendant pled guilty to an indictment charging theft by taking property without any indication of its value. No evidence of value was admitted at the plea hearing, and the defendant made no admission that the stolen property had a value of more than $200 (the amount then required to authorize punishment of the crime as a felony). As a result, the habeas court vacated defendant’s felony sentence. In Hight no value was stated but the indictment charged only a misdemeanor, so the victim’s testimony that the stolen property had some value was sufficient to support the conviction.

In Mack, the indictment charged the defendant with taking $72 in money and assorted clothing, of the value of $72. A felony conviction was entered because the evidence showed that the value of the stolen property exceeded $100, the felony threshold at that time. The Court rejected defendant’s argument that he could not be indicted for a misdemeanor and convicted of a felony, holding that theft by taking is only one crime with the value of the property taken controlling punishment.

Consequently, although these cases do hold that property value is not an element of the crime of theft by taking but rather determines whether the crime is to be punished as a felony or misdemeanor, they do not address the question of whether the amount taken must be specified when the defendant is charged with theft of money and demands to know the amount. None of the defendants in those cases filed special demurrers prior to trial, requiring the State to advise them of this fact in the indictment if it was known. They complained only after conviction. All of the cases focused on elements of the crime, and Wilson and Mack address the sentencing dichotomy.

That the amount of money taken is not an element of the crime does not resolve the question of whether an accused is entitled to be tried on an indictment which alleges the amount if known. “Where a defendant is charged with theft . . ., the property stolen must be described in the indictment in sufficient detail so as to reasonably inform the defendant of the event referred to and put him in a position to prepare to defend the case.” Ga. Crim. Trial Prac., supra at § 13-11.

In Frisbie v. United States, 157 U. S. 160 (15 SC 586, 39 LE 657) (1895), a federal criminal statute prohibited agents, attorneys, or other persons presenting claims under a federal pension act from charging a sum greater than $10 for their services. The indictment alleged that the defendant charged a sum of money greater than $10, the exact amount being unknown. It appears from the Supreme Court’s opinion that the defendant filed a demurrer to the indictment on three grounds. Id. at 162. The demurrer was overruled, and defendant appealed his conviction following the denial of his motion for new trial.

The Supreme Court in Frisbie reviewed numerous objections to the indictment which do not appear to have been raised in the demurrer. One was that the indictment did not state the amount of the excess over $10. As to this objection, the Supreme Court stated that “if the amount of the excess was unknown it was proper to allege that fact in the indictment, and, in the absence of any testimony to the contrary, it will be presumed that the amount of the excess was, in fact, unknown to the grand jury. [Cit.]” Id. at 167.

Therefore, as held in State v. Stamey, 211 Ga. App. 837, 839 (2) (440 SE2d 725) (1994), the indictment is subject to demurrer unless the amount is unknown to the grand jury and that fact is alleged in the indictment. On the other hand, if the amount is known, it must be stated. Why would the Supreme Court create a presumption that the amount was unknown if it was unnecessary for the grand jury to specify the amount if known?

Unfortunately, although Stamey did point out that the misdemeanor versus felony information was covered in the indictment, the opinion did not explain why this was not enough and why Stamey was entitled to know the specific amount unless it was unknown.

It has long been the practice in Georgia for indictments and accusations for theft of money to specify the amount taken. In Kyler v. State, 94 Ga. App. 321, 325 (3) (94 SE2d 429) (1956), the Court observed that at common law, when money was the subject of simple larceny, great specificity was required. Kyler catalogues all Georgia cases dealing with the sufficiency of the description of money in accusations and indictments. All but three cases (Roberts v. State of Ga., 83 Ga. 369, 370 (1) (9 SE 675) (1889); Johnson v. State, 119 Ga. 257, hn. 2 (45 SE 960) (1903); McNatt v. State, 27 Ga. App. 642, 643 (3) (109 SE 514) (1921)) involved compound larceny and thus were excluded from consideration.

In Roberts, the indictment was for simple larceny and the goods stolen allegedly consisted of “ ‘one hundred dollars in greenback bills, of the value of one hundred dollars.’ ” The Court indicated that the indictment was subject to demurrer by reason of being too general in the matter of description.

When Johnson was decided, Georgia’s penal code prescribed felony punishment for theft of any “bond, note, bank-bill, due-bill, or paper or papers securing the payment of money or other valuable thing” of a value of $50 or more. Johnson held that an indictment charging a person with stealing “ ‘one hundred and twenty dollars in paper money, to wit, two twenty-dollar bills, five ten-dollar bills, and six five-dollar bills,’ ” id., is not subject to demurrer on the ground that it does not disclose what kind of money was stolen, this Court having previously held that such a description of money means bank bills.

In McNatt, the Court held that a simple larceny indictment alleging that the accused stole $130 in paper money in denominations of five $20 bills and three $10 bills of the personal goods of B. F. Morris and of the value of $130 was not subject to special demurrer on the ground that it did not disclose what kind of money was stolen. The Court cited a case holding that the ordinary meaning of a $5 bill is a bank bill for the payment of $5.

In all these cases the amount was specified, thereby clearly identifying and distinguishing the property allegedly taken. In all these cases the answer to precisely “what was taken” was given. These cases demonstrate two additional factors: (1) a more general description of money is permitted where allegations of the circumstances surrounding the theft serve to individualize the transaction; and (2) the specificity requirement was based in large part on the fact that under the penal code the punishment for larceny of money was determined by the kind of money that was taken and the place from which it was taken (see Kyler, 94 Ga. App. at 327).

Wages v. State, 165 Ga. App. 587 (302 SE2d 112) (1983), contains a good discussion of our state law’s requirements for specificity in the description of stolen personal property.

In an indictment for larceny [now theft] the description of the stolen property should be simply such as, in connection with the other allegations, will affirmatively show the accused to be guilty, will reasonably inform him of the transaction charged, and will put him in a position to make the needful preparations for his defense. Where timely demand is made by special demurrer, the defendant is entitled to have such a definite and particular description of the property as will enable him to know the exact transaction in which the State claims he violated the law. In some way the particular property alleged to have been stolen must be described ... or the transaction in some way individualized.

(Citations and punctuation omitted.) Id. at 589-590 (4).

Cases such as Kyler also recognize a general rule that indictments charging statutory offenses unknown to the common law need only track the language of the statute, but even this rule is subject to an exception which puts both common law and purely statutory offenses on the same footing insofar as concerns special demurrers. As stated in Kyler, 94 Ga. App. at 324 (3):

“Naturally, where the offense is statutory, the language of the accusation must follow more closely the language of the statute, and be restricted by it more, than where the charge relates to a common-law offense, in which the details must necessarily be amplified in order to cover the definition of the common-law offense (which has been codified as such into our law). Reference is made to this difference in United States v. Simmons, 96 U. S. 360 (24 L. ed. 819) [(1877)], in which the court said: ‘Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.’ ‘But to this general rule, there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.’ ‘An indictment not so framed is defective, although it may follow the language of the statute.’ ”

Decided March 18,1999.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant

It is not difficult to envision situations in which the amount of money alleged to have been stolen, that is to say, the subject matter of the alleged theft, will be material to the defense. To say it has “a value of more than $500.00” does not give the charged person a single clue as to whether he or she is accused of taking $501 or $5,000 or $5 million; the sky is the limit. On the other end of the spectrum, although the lowest amount is discernible when the charge is “less than $500.00,” the nature and strategy for a defense might well depend on whether the amount was $1 or $500. Consequently, the amount should be alleged if known. Of course, the amount cannot be specified if unknown, such as where an undetermined amount of cash is taken. In such cases the law does not absolve the accused of criminal liability simply because of inexactitude in the proof, which is reflected in the indictment and thus puts defendant on notice of the fact.

The multiple counts of the indictment in this case charge Forthe with theft by taking lawful “U. S. currency” having a value of either more or less than $500 on or about eight specified dates between June and December 1997, from a named company. Specification of amounts alleged to have been taken would serve to individualize the transactions. Since it is patent that there was an ongoing relationship between defendant and the alleged business victim, or at least a period of access to its funds, it is likely that there were other transactions in this fungible physical property on the dates specified about which there is no complaint. Defendant has a right, much less a need, to know what is aimed at.

At the trial court hearing, the prosecuting attorney acknowledged that such amounts could be specified in this case. The court asked: “Does the State know the specific amount of the currency stolen?” State counsel responded: “Yes, sir. In some of the cases it was cash and some of the cases it was by check, and we do have the specific amounts in each one.” If we sanction the State’s failure to specify these amounts in the indictment, we permit “an out-dated, ‘trial by ambush’ procedural tactic,” in the words of Sharpe v. Dept. of Transp., 267 Ga. 267, 271 (2) (476 SE2d 722) (1996).

I am authorized to state that Judge Ruffin joins in this dissent.

District Attorney, for appellant.

J. Converse Bright, for appellee.

       “The law does not care for, or take notice of, very small or trifling matters.”

       See, e.g., Johnson v. State, 233 Ga. App. 450, 451 (504 SE2d 290) (1998); Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       Through statutory reciprocal discovery procedures, a defendant can presumably obtain information concerning specific amounts of money alleged to have been stolen by obtaining a list of witnesses and interviewing them, OCGA § 17-16-3, and by inspecting and copying papers and documents within the possession of the prosecution and intended to be used at trial. OCGA § 17-16-4 (a) (3). But the prosecuting attorney is only required to permit such inspection and copying, and provide information concerning how to contact prosecution witnesses, no later than ten days prior to trial. OCGA §§ 17-16-4 (a) (3); 17-16-8 (a). Moreover, these discovery provisions, being reciprocal, require the defendant to give up the right to keep his information secret. They are not a substitute for a special demurrer.

       That statement itself revealed another flaw in the indictment, for checks are not “U. S. currency.”


author: Johnson, Chief Judge.

text:
    A99A0340.
    PETTUS v. THE STATE.
    (514 SE2d 901)
   Johnson, Chief Judge.

Tommy Pettus was convicted of trafficking in marijuana and possession of methamphetamine. He appeals from the denial of his motion for new trial.

1. Pettus contends the trial court erred in denying his motion for new trial because the verdict was contrary to the evidence, against the weight of the evidence, and contrary to law and principles of justice and equity. The denial of a motion for new trial on these grounds addresses itself to the discretion of the trial judge. On appeal, this Court only reviews the evidence to determine if it is sufficient to support the verdict. This is a question of law, not discretion. The evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. See Kapua v. State, 228 Ga. App. 193 (1) (491 SE2d 387) (1997).

Viewed in the light most favorable to support the verdict, the evidence shows that after making a controlled buy of marijuana, law enforcement officers obtained a warrant to search Pettus’ home. In his home they found over 50 pounds of marijuana and a small quantity of methamphetamine. After being advised of his Miranda rights, Pettus admitted the marijuana was his and that he did sell marijuana. The evidence was sufficient for a rational trier of fact to find Pettus guilty beyond a reasonable doubt of trafficking in marijuana and possession of methamphetamine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-13-31 (c); Query v. State, 217 Ga. App. 61, 63 (1) (456 SE2d 704) (1995); Coop v. State, 186 Ga. App. 578, 580 (2) (367 SE2d 836) (1988).

2. Pettus argues that the trial court erred in denying his motion to suppress evidence seized from his home because the affidavit upon which the search warrant was based did not establish probable cause. Specifically, Pettus claims that the detective included false information and omitted relevant information from the affidavit.

In his affidavit, the detective stated that while conducting a surveillance of Pettus’ residence, he and other officers saw a person later identified as J. D. enter the residence empty-handed and come out shortly thereafter with a brown bag. The detective averred further that J. D. got into his vehicle, left, and was stopped nearby. The bag he carried contained marijuana. J. D. told police that he bought the marijuana from Pettus. The warrant was applied for and executed within hours after the transaction occurred.

Pettus complains that the detective did not include in the affidavit the fact that he drove J. D. to the residence, that it was a controlled buy, that he knew J. D. before the sale took place, and that J. D. had provided officers with the tip that Pettus was selling drugs.

In the suppression hearing, the detective testified that he gave the magistrate sworn oral testimony regarding “everything that happened” but that he did not include the information at issue in the written affidavit because he wanted to protect the informant. The warrant application states that the affiant gave the magistrate sworn testimony in addition to the affidavit.

In reviewing a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. See Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997).

It is well established that the trial court may consider oral testimony presented to a magistrate in support of the issuance of a warrant. Gibson v. State, 223 Ga. App. 103 (2) (476 SE2d 863) (1996). It is also clear that our courts have, on occasion, recognized the affiant’s desire to protect the identity of a confidential informant by omitting certain details from the affidavit. See, e.g., Sidwell v. State, 191 Ga. App. 661, 663 (1) (382 SE2d 703) (1989) (no error in denying motion to suppress where detective, trying to protect informant’s identity, failed to include additional information about the controlled buy); Landers v. State, 183 Ga. App. 691, 692-693 (2) (359 SE2d 748) (1987) (no error in denying motion to suppress where affidavit did not show precise date drugs were seen on premises because officer wanted to protect informant’s identity). The proper inquiry is whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time the search warrant is issued. Gibson, supra at 104 (3).

In this case, the affidavit indicated that earlier in the day the officers saw J. D. go to the residence empty-handed and leave carrying a bag of marijuana. The affidavit also indicated that J. D. told officers he bought the marijuana from Pettus. The truth of these assertions is not disputed. The detective’s failure to include more details about the transaction or his relationship with J. D. does not rise to the level of deliberate falsehood or reckless disregard for the truth. See Ledbetter v. State, 190 Ga. App. 843, 844 (1) (380 SE2d 313) (1989). The affidavit, when supplemented by the detective’s oral testimony, supports a finding of probable cause. See generally Sid-well, supra at 662 (1); Delay v. State, 213 Ga. App. 199, 201 (4) (444 SE2d 140) (1994).

Decided March 18,1999.

Michael A. Zoffmann, for appellant.

Patrick H. Head, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Pettus’ contention on appeal that the affidavit was invalid because it omitted information regarding J. D.’s reliability was not raised below and is therefore waived. See generally Iglesias v. State, 191 Ga. App. 403, 404 (2) (381 SE2d 604) (1989). We note that the affidavit was not based on hearsay information supplied by the informant, but was based on the detective’s own observations. And, assuming J. D.’s reliability was an issue, he demonstrated his reliability by meeting with the investigator and putting himself on the line by participating in the controlled purchase. See Clark v. State, 212 Ga. App. 486, 488-489 (441 SE2d 885) (1994); Leonard v. State, 213 Ga. App. 503, 504 (445 SE2d 330) (1994). Under the totality of the circumstances, the evidence showed a fair probability that drugs would be found in the residence. See id.; Perkins v. State, 220 Ga. App. 524, 525 (1) (469 SE2d 796) (1996); Gremillion v. State, 233 Ga. App. 393, 395 (1) (504 SE2d 265) (1998). There was no error.

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.