text:
    A89A0023.
    HEAD et al. v. THE STATE.
    (381 SE2d 519)
   Carley, Chief Judge.

Appellants were tried jointly before a jury. Appellant Head was found guilty of armed robbery, aggravated assault, false imprisonment, possession of a firearm during the commission of a crime and simple battery. Appellants Stanley and Johnson were found guilty of rape, simple battery and false imprisonment. Appellants appeal from the judgments of conviction and sentences entered on the jury’s guilty verdicts.

1. Appellants enumerate the general grounds.

Appellants urge that the State failed to meet its burden of proof as to their coercion defense. OCGA § 16-3-26 provides that “[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” “In order for duress or fear produced by threats or menaces, to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe that there was such danger. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. [Cits.]” (Emphasis supplied.) Chambers v. State, 154 Ga. App. 620, 624 (1) (269 SE2d 42) (1980). The only evidence which might arguably authorize a finding of coercion relates to appellant Stanley. In a statement given to officers, he claimed that a man had pointed a gun at him and forced him to rape the victim. However, the record also contains evidence that appellant Stanley was not threatened as he claimed to have been. “We find that the jury would have been justified in rejecting [appellant Stanley’s] defense of coercion. . . . [Cits.]” Barnes v. State, 178 Ga. App. 205, 206 (1) (342 SE2d 388) (1986).

Appellants Stanley and Johnson further contend that, as to the rape, the only evidence of their guilt is their uncorroborated confessions. However, the confessions were sufficiently corroborated by the victim who testified that she was assaulted by three men and raped by at least one of them. Appellants Stanley and Johnson were two of those three. Accordingly, the evidence authorized a finding that appellants Stanley and Johnson were guilty of rape, either as actual perpetrators or as parties to the crime. “The corpus delicti was thus established, and ‘corroboration of a confession in any material particular satisfies the requirements of the law. [Cits.]’ [Cits.]” Patrick v. State, 169 Ga. App. 302, 303 (2) (312 SE2d 385) (1983). See also Nation v. State, 180 Ga. App. 460 (1) (349 SE2d 479) (1986).

After a review of the record, we find that a rational trior of fact could have found from the evidence adduced at trial proof of guilt of appellants beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants enumerate as error the trial court’s refusal to charge on the affirmative offense of coercion.

As discussed in Division 1, it is only appellant Stanley who was possibly entitled to a charge on coercion as a defense to the rape of the victim. Appellant Stanley submitted a request to charge on coercion and, during the charge conference, the trial court indicated that it would instruct on that defense in relation to the rape charge. However, counsel for appellant Stanley requested the trial court to give no charge on coercion at all rather than to give a charge which limited the coercion defense to the offense of rape. The trial court acceded in that request and gave no charge on coercion. Under these circumstances, if the trial court erred, it was error which was induced by the rejection of appellant Stanley’s counsel of the trial court’s offer to give a proper limited instruction as to the coercion defense.

3. Appellants enumerate as error the trial court’s denial of their motions to sever their trials, urging that their defenses were antagonistic.

“The mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cit.] A showing of harm is necessary. [Cit.]” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). “It is not enough to claim that [one] has a better chance of acquittal in a separate trial. Rather, the burden is on defendant to show clear prejudice and in the absence of this showing the trial court’s denial of the motion to sever will not be disturbed. [Cits.]” Satterfield v. State, 256 Ga. 593, 596 (3) (351 SE2d 625) (1987). “With the benefit of hindsight, it is incumbent upon this court to determine whether the trial court’s decision to join the trial of the co-defendants . . . hindered a fair determination of the guilt or innocence of [appellants], and thus constituted a manifest abuse of discretion.” Magouirk v. State, 158 Ga. App. 517, 518 (281 SE2d 283) (1981). Having considered appellants’ assertions as to antagonistic defenses and prejudice, we find no error in the denial of the motions to sever their trials. See generally Oliver v. State, 253 Ga. 284 (319 SE2d 856) (1984); Kennedy v. State, 253 Ga. 132, 134 (2) (317 SE2d 822) (1984). ,

4. Appellants enumerate as error the denial of their motion for mistrial based upon an allegedly improper contact between three jurors and a bystander in the courthouse. After the incident, the trial court conducted a voir dire and asked each member of the jury individually if he or she had heard the comment. Only three of the jurors stated that they had heard anything and they testified that they only had heard the bystander utter the word “guilty.” Another juror stated that she had heard the three jurors comment that the sheriff had taken the bystander away. All four of the jurors involved in the incident stated that the bystander’s remark had in no way affected their ability to decide the case in an unbiased manner and that they had not discussed the remark with any other member of the jury.

“The rule in this State is that where such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. [Cits.]” Jones v. State, 258 Ga. 96, 96-97 (366 SE2d 144) (1988). “[Testimonial evidence on voir dire is an acceptable means of proof to meet the burden cast upon the [S]tate, in such circumstances, to rebut by proof a presumption of harm. [Cits.]” Clark v. State, 153 Ga. App. 829, 830 (1) (266 SE2d 577) (1980). “ ‘[Not] every improper communication is prejudicial per se.’ [Cit.]. ... In determining that the unauthorized contact of conversation . . . was not harmful, [we focus] on three factors: the lack of ‘any scintilla of evidence’ that there was an attempt to discuss the merits or to exert any influence upon the juror, and the fact that the juror who was contacted did not pass the conversation on to any other juror. [Cit.]” Towler v. State, 188 Ga. App. 43, 44 (2) (372 SE2d 242) (1988). After reviewing the evidence adduced during the voir dire, we find that the State met its burden of showing that appellants were not prejudiced by the improper remark. See generally Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986); Clark v. State, supra at 830.

5. The trial court’s admission into evidence of the statements given to investigating officers by appellants is enumerated as error.

When appellants contested the admissibility of their statements, the trial court conducted a Jackson-Denno hearing. The evidence presented at the hearing clearly authorized the trial court to find that appellants were given their Miranda rights and thereafter signed a waiver of rights form prior to giving their written and oral statements to the officers. The evidence also authorized the trial court to find that appellants’ statements were not the products of trickery or made in the promise of leniency. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” Gates v. State, 244 Ga. 587, 590-91 (261 SE2d 349) (1979). See also Stephens v. State, 170 Ga. App. 342 (1) (317 SE2d 627) (1984); Williams v. State, 167 Ga. App. 42 (3) (306 SE2d 46) (1983).

6. Appellants enumerate as error the trial court’s charge on venue, urging that the jury was impermissibly instructed that the State did not have the burden of proving venue beyond a reasonable doubt. However, a review of the charge reveals that it is a correct statement of the law as to venue and that it did not relieve the State of its burden of proof in. this regard. See OCGA § 17-2-2; Crosby v. State, 232 Ga. 599, 600 (2) (207 SE2d 515) (1974).

7. The trial court instructed the jury that “[witnesses are presumed to speak the truth unless they are impeached in some manner as provided by law.” The giving of this charge is enumerated as error.

“Although we have held that such presumption-of-truthfulness charges can be misleading, and are of little positive value, and have recommended that their use be discontinued, we have nevertheless noted that they have held not to be, as [appellants contend], unconstitutionally burden-shifting. [Cit.]” Mincey v. State, 257 Ga. 500, 506 (9) (360 SE2d 578) (1987). See also Holiday v. State, 258 Ga. 393 (14) (369 SE2d 241) (1988); Chews v. State, 187 Ga. App. 600 (7) (371 SE2d 124) (1988). Likewise, the giving of the charge is not violative of the Fifth Amendment privilege against self-incrimination. See Preston v. State, 257 Ga. 42, 45 (8) (354 SE2d 135) (1987).

8. Appellants enumerate as error the trial court’s charge on intent as unconstitutionally burden-shifting. However, the charge that was given has been specifically approved. See Parker v. State, 256 Ga. 363, 365 (2) (349 SE2d 379) (1986); Dill v. State, 254 Ga. 17 (1) (325 SE2d 765) (1985); Heard v. State, 175 Ga. App. 793 (334 SE2d 374) (1985).

9. Appellants contend that their sentences constitute cruel and unusual punishment. “This court will not review for legal error any sentence which is within the statutory limits — as in the instant case. [Cits.] Any question as to excessiveness of a sentence which is within legal limits should be addressed to the sentence review panel, as provided in [OCGA § 17-10-6].” Tommie v. State, 158 Ga. App. 216, 216-217 (1) (279 SE2d 510) (1981). See also Branch v. State, 182 Ga. App. 818, 819 (3) (357 SE2d 136) (1987).

10. At trial, an officer expressed his opinion that, of the three defendants, appellant Head was the smartest. Appellant Head then offered his high school academic records to show that he was a poor student. The trial court refused to admit the records into evidence. Appellant Head enumerates this ruling as error.

Evidence of appellant Head’s high school grades would not in any way rebut the officer’s opinion that appellant Head was the smartest of the defendants. Moreover, it is clear that the officer was expressing his own opinion of appellant Head’s “street smarts” rather than his academic achievements. Accordingly, appellant Head’s high school records were irrelevant and, therefore, properly excluded by the trial court. See generally Guest v. State, 155 Ga. App. 374 (1) (270 SE2d 904) (1980).

Decided March 16, 1989

Rehearing denied April 6, 1989

Carl P. Greenburg, J. M. Raffauf, for appellants.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, R. Stephen Roberts, Assistant District Attorneys, for appellee.

11. Appellants’ remaining enumeration of error relates to the jury selection process. The enumeration has been considered and found to be without merit.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A0081.
    McCOUNLY v. THE STATE.
    (381 SE2d 552)
   Beasley, Judge.

Defendant appeals his convictions of burglary (OCGA § 16-7-1) and robbery (OCGA § 16-8-40 (a)).

1. At approximately 12:30 a.m. on January 19, 1988, Mr. and Mrs. Camp, both elderly, were awakened by a knock on their front door. Mr. Camp responded and encountered a tall black man with a moustache, wearing a peacoat and a ball cap. The man asked him to call the fire department because there was a fire down the street. The one-hundred-watt porch light was on and the man was standing under the light about two feet from the door.

When Mr. Camp went to a back window to see the fire, his wife turned on the light in the living room and began to call the emergency number. The man kicked in the door and grabbed her by the back of her gown, turned off the living room light and demanded money. He held her through the incident and he smelled of liquor. Both Mr. and Mrs. Camp were threatened. Mr. Camp gave the man paper money from his wallet. He did not know the denominations but had had forty dollars before he ran some errands. Mrs. Camp had no money in her purse. She showed the man loose change in a soap dish. He took the soap dish, the money, and a flashlight which bore Mr. Camp’s initials scratched onto it.

The man left and the Camps called the police who responded at 12:45 a.m. They were given the above description and it was broadcast over the radio. Based on the description, the officers suspected defendant whom they knew. About eight to ten minutes later, Officer Porter, who had been canvassing the neighborhood, spotted defendant walking about 500 feet from the victims’ house. Defendant lived in the neighborhood.

Porter stopped defendant and told him he was suspected of the theft. After patting him down for weapons, Porter took defendant to the victims’ house, told Mr. Camp he believed he had the man, and asked Mr. Camp to look. Mr. Camp went to the car, looked through the window, and identified defendant. Mr. Camp had seen the assailant in the neighborhood several times before.

Defendant was taken to the station and charged. He was searched and $7.40 in loose change was found in the front pocket of his peacoat. He had no other money on him. The patrol car, which had been searched at the beginning of the shift, including removing the bottom rear seat, was searched again, and a twenty and three ones were found stuck between the bottom and back of the rear seat. No one else had been in the back seat that day.

Pursuant to search warrant, defendant’s home was searched at 4:30 a.m. The door was unlocked and no one was there when the officers arrived. Inside a wood burning stove in the living room were the soap dish and the flashlight, partially burned.

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant filed a motion to suppress evidence of the showup as well as any in-court identification of defendant, contending that he was deprived of his “right to counsel and due process at said showup.” While no specific authority was cited below, the cases relied on here deal with the Federal Constitutional rights and that is all we will consider.

The right to counsel attaches only at or after formal adversary proceedings which had not commenced when the showup occurred. Moore v. Illinois, 434 U. S. 220, 231 (98 SC 458, 54 LE2d 424) (1977); Gilbert v. California, 388 U. S. 263 (87 SC 1951, 18 LE2d 1178) (1967). Thus, there was no Sixth Amendment violation.

The trial court ruled that, under the totality of circumstances, Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), the showup was reasonably and fairly conducted at the location of the offense and near in time to the offense.

“[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil, supra at 199; Wright v. State, 166 Ga. App. 295, 297 (1) (304 SE2d 105) (1983).

Although Mr. Camp had been blind in one eye since childhood, he gave a description accurate enough for the officers to tentatively identify a suspect, who was then found in the immediate vicinity of the crime. Mr. Camp had observed the assailant under a light and had been able to see him during the entire altercation, although Mrs. Camp had not. Defendant smelled of liquor as had the assailant; he was wearing clothes as described; and although Mr. Camp did not know his name, he had seen the man in the neighborhood before. The chance of misidentification under these circumstances was not substantial and it was not error to admit the identifications. Jones v. State, 184 Ga. App. 654, 655 (362 SE2d 457) (1987); Wolke v. State, 181 Ga. App. 635, 636 (1) (353 SE2d 827) (1987); Boswell v. State, 178 Ga. App. 250, 251 (2) (342 SE2d 744) (1986); Wright, supra.

3. Defendant complains of the seating of a juror, who he contends had expressed a bias. The juror stated during voir dire that he had heard testimony (during a first trial which ended in a hung jury) and that he had formed some opinion. After this exchange, however, counsel for defendant stated that he would accept the juror. No challenge for cause was made to the juror, OCGA § 15-12-164, and defendant may not now complain of his having been seated. This court will not consider objections raised for the first time on appeal, nor will it allow a defendant to complain of self-induced error. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986); Farmer v. State, 180 Ga. App. 720, 722 (5) (350 SE2d 583) (1986).

4. After the jury had deliberated for nearly two-and-a-half hours, it reported that there was no consensus after three votes. The court then sua sponte gave the modified so-called “Allen charge” [Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)], of which defendant now complains. After the charge was given, the court inquired of any exceptions and counsel for defendant stated that he had none.

“Because appellant stated that he had no exceptions when the court made inquiry, he waived his right to raise the issue on appeal. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). While it is true that this court shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether or not objection was made (OCGA § 5-5-24 (c)), appellant has not shown that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. [Cits.]” Maynard v. State, 171 Ga. App. 605, 606 (2) (320 SE2d 806) (1984). The charge here complained of is not such a charge. Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987); Short v. State, 256 Ga. 172, 174 (5) (345 SE2d 344) (1986). It was substantially the same as that found in the Council of Superior Court Judges’ Suggested Pattern Jury Instructions, Vol. II, Criminal (1984). See Barnes v. State, 184 Ga. App. 513, 514 (4) (361 SE2d 876) (1987).

Decided April 6, 1989.

George R. Asinc, Gary N. Struletz, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

5. Defendant complains of the trial court’s denial of his motion for a mistrial made during the direct testimony of Officer Porter. The officer said he knew defendant “from previous contacts with him.” At the time the statement was made, there was no objection. Later, reflected by 14 pages in the transcript, defendant moved for a mistrial, contending that the statement placed his character in issue. “[A] motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986); Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988); Whittington v. State, 184 Ga. App. 282, 285 (3) (361 SE2d 211) (1987).

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A0195.
    LARKIN v. THE STATE.
    (381 SE2d 421)
   Sognier, Judge.

Billy F. Larkin appeals his convictions for armed robbery, two counts of theft by taking, and simple assault. Three incidents from August to November 1986 are involved.

Construed to support the verdict, the evidence adduced at trial showed that at approximately midnight on August 13, 1986, Gloria Rahiser, a guest at the Ramada Inn Central in Atlanta, returned to her hotel room after visiting her son at Piedmont Hospital. As she entered her room, a man with a white object in his hand came up behind her and demanded her purse. She refused, and the man hit her behind the ear with the white object, knocking her unconscious. When she awakened, she found her purse had been pulled from its shoulder straps and was gone. The purse contained four hundred dollars in cash, traveler’s checks, a gold cross, credit cards including a telephone calling card, and her son’s will. Rahiser testified that several months after her purse was taken, she received a bill for long distance telephone charges she had not made, and she sent copies of the bill to the Atlanta police. At a photographic lineup several months later, Rahiser positively identified appellant as the perpetrator of the robbery.

On August 27, 1986, Benadette Garigliano was staying at the Ramada Inn Central with her husband and other family members to attend a wedding. During the daylight hours she took a walk with her sister. As she returned to her room, the door to her room opened and a man walked out. She screamed and her sister pursued the man to try to stop him but was unsuccessful. Her husband’s wallet and her grandfather’s gold pocket watch were missing from the room. A passer-by found the wallet in the bushes, but the watch was never recovered. Garigliano testified that she got a very good look at the perpetrator, whom she positively identified as appellant at a photographic lineup several months later.

Manette Yvette Smith testified she was having an affair with appellant, and would travel to Atlanta from Augusta and stay with appellant in the various hotel rooms rented by him. On November 13, 1986, they were staying at the Red Carpet Inn in the same neighborhood as the Ramada Inn Central. Smith testified that although she had been seeing appellant for several months, on that occasion appellant demanded that she give him her diamond and gold rings, and that when she refused, he choked and pushed her and took the rings. Juanita Johnson, the general manager of the hotel, testified that Smith reported to her that appellant had taken the jewelry, and that Smith was upset and had red marks on her throat. George Matthews, the assistant manager, testified that the following morning he observed appellant come into the lobby and knock a cup of coffee out of Smith’s hand. When appellant inquired if Matthews had telephoned the police and Matthews answered that he had, appellant shouted obscenities at Matthews and stated that he was going to kill him. Appellant pointed his finger directly in Matthews’ face, and in retreating from appellant and trying to avoid the blow, Matthews hit his head on the wall.

Larry Loy, an Atlanta Police Officer, testified that he was hired by the Ramada Inn Central as a security officer, and that over a period of time he had observed appellant at the hotel under suspicious circumstances, and had several confrontations with appellant. After one such confrontation, he obtained from a taxi driver the address where appellant had gone when he left the hotel. He went to that apartment to execute a search warrant, and did so after the owner of the apartment signed a “consent to search” form. Loy found a number of items belonging to appellant in a closet and also observed a man’s gold pocket watch and chain but did not seize the watch at that time because he had no information regarding the Garigliano theft. Loy testified that Rahiser had sent him copies of her AT&T Calling Card bill containing the calls she knew she had not made. Loy telephoned an Alabama number appearing on the bill, and reached someone who identified herself as a relative of appellant.

1. Appellant enumerates the general grounds. Although appellant testified at trial that he was not the person who had committed the offenses against Rahiser and Garigliano, both victims identified him positively as the perpetrator of the crimes against them, and there was no showing that the photographic lineups were tainted in any way. “The credibility of witnesses and the weight to be accorded their testimony is the sole province of the jury. [Cit.]” Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988). Although there may have been some question whether the “white object” described by Rahiser as the weapon used to knock her out was an offensive weapon within the meaning of OCGA § 16-8-41 (a), Rahiser testified that she was sure it was not appellant’s fist, and “ ‘[t]he term “offensive weapon” includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, (but) also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use . . . (Cit.)’ [Cit.]” Eady v. State, 182 Ga. App. 293, 295 (1) (355 SE2d 778) (1987). The question was one for the jury, id., and the jury was authorized to resolve it against appellant. We find the evidence sufficient to enable a rational factfinder to convict appellant of armed robbery as to Rahiser, and of theft by taking as to Garigliano. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Appellant’s defense in the Smith incident was that she had given him the rings in exchange for sex. Smith’s testimony was bolstered by that of Johnson and Matthews, and conflicted with appellant’s testimony. The indictment charged appellant with robbery as to this offense, but the trial court charged the jury on the lesser included offense of theft by taking, and the jury returned a verdict of guilty of the lesser offense. Although the evidence was in conflict, “ ‘[t]he credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury’s finding unless it is insupportable as a matter of law. (Cit.) Since we do not find that to be the situation in the case at bar, we will not disturb the jury’s finding.’ [Cit.]” Burroughs v. State, 186 Ga. App. 40, 41 (1) (366 SE2d 378) (1988).

Appellant was charged with terroristic threats and acts as a result of his conduct with regard to Matthews. At defense counsel’s request, the trial court charged the jury on simple assault as a lesser included offense of terroristic threats and acts. OCGA § 16-5-20 (a) (2) provides that a person commits simple assault when he “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” The evidence adduced at trial was sufficient to enable a rational trier of fact to convict appellant of simple assault. Jackson v. Virginia, supra.

Decided April 6, 1989.

Michael A. Zoffman, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Assistant District Attorneys, for appellee.

2. Appellant enumerates 11 other grounds for reversal. As to each, appellant has failed to support his enumeration by reference to the record or transcript as required by Court of Appeals Rule 15 (c) (3) (i), nor has he cited any authority for his position. Moreover, as to most, if not all, of these enumerations, appellant has not argued his enumeration, other than repeating the enumeration itself, and thus under Court of Appeals Rule 15 (c) (2) appellant must be deemed to have abandoned these enumerations. Watson v. State, 153 Ga. App. 545, 549 (4) (265 SE2d 871) (1980); Curtis v. State, 182 Ga. App. 388, 389 (3) (355 SE2d 741) (1987). Nevertheless, we have reviewed these enumerations and find them all to be without merit.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0263, A89A0264.
    COLLINS et al. v. THE STATE.
    (381 SE2d 555)
   McMurray, Presiding Judge.

During the early morning hours on October 11, 1987, Annie Mar-' garet Stanley was entertaining friends in her apartment. One such friend was Alexis Terrell Lankford. Stanley and Lankford were not dating; but they had been seeing each other occasionally.

Before Stanley met Lankford, she lived with defendant Willie Jack Collins. They lived together “off and on” during the period of time that Stanley and Lankford had been seeing each other.

On the night in question, Collins arrived at Stanley’s apartment and suggested that Lankford start “packing.” Then, Collins left.

Stanley and Lankford walked outside. They stood in a breezeway and talked. After awhile, Willie Jack Collins returned. He walked up to Stanley and Lankford in the breezeway and grabbed Stanley. Lankford grabbed Collins and they began to tussle. Stanley tried to break up the fight. Collins yelled, “Cap’m, cap’m.” At that point, Charles Edward Collins, the brother of Willie Jack Collins, appeared in the breezeway, hollered, “You ain’t going to do nothing,” and fired a gun two times. Lankford began running. Looking back he saw Willie Jack Collins firing a pistol at him.

In the meantime, Stanley managed to obtain Charles Edward Collins’ gun. (Stanley testified at trial that she found the gun in the bushes. She told the police, however, that Charles Edward Collins pointed the gun at her and threatened to kill her; that they struggled; and that she managed to get the gun away from him.) She brought Charles Edward Collins inside her apartment and they awaited the arrival of the police. Meanwhile, Willie Jack Collins fled.

When the police arrived, Stanley gave them Charles Edward Collins’ gun. It was observed that the gun had been fired recently — two cartridges were spent.

Charles Edward Collins and Willie Jack Collins were convicted felons and following the October 11, 1987, incidents they were indicted. Charles Edward Collins was charged in Count 1 with the aggravated assault of Annie Margaret Stanley; in Count 3 he was charged with possession of a firearm during commission of a certain crime (aggravated assault); and, in Count 5 he was charged with possession of a firearm by a convicted felon. Willie Jack Collins was charged in Count 4 with possession of a firearm during commission of a certain crime (aggravated assault); and, in Count 6 he was charged with possession of a firearm by a convicted felon. In Count 2, Charles Edward Collins and Willie Jack Collins were charged jointly with the aggravated assault of Alexis Terrell Lankford.

Following a jury trial, defendants were convicted on each count of the indictment in which they were respectively charged. Upon the imposition of sentences in each case, defendant Charles Edward Collins appeals in Case No. A89A0263 and defendant Willie Jack Collins appeals in Case No. A89A0264. Held:

Case No. A89A0263

1. At trial, Stanley testified that she found Charles Edward Collins’ gun under a bush. Over a hearsay objection, an investigating officer was permitted to testify that Stanley told him she wrestled the gun away from Charles Edward Collins after he threatened to shoot her. In his first enumeration of error, defendant Charles Edward Collins asserts the trial court erred in permitting the investigating officer to so testify. We disagree. The prior inconsistent statement which Stanley made to the police was admissible as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717). It was not subject to a hearsay objection.

2. The trial court did not err in refusing to charge the jury concerning simple assault. Becausé each assault was committed with a gun, simple assault could not be considered a lesser included offense. Zachery v. State, 158 Ga. App. 448, 449 (3) (280 SE2d 860); Petty v. State, 179 Ga. App. 767, 768 (4) (347 SE2d 663). Besides, no written request to charge on simple assault was submitted in the trial court. See Parker v. State, 181 Ga. App. 590, 591 (3) (353 SE2d 83).

Decided April 6, 1989.

Karen Wardlaw & Associates, William W. West, for appellant (case no. A89A0263).

Gloria Darty Reed, for appellant (case no. A89A0264).

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

3. The evidence was sufficient to enable any rational trier of fact to find defendant Charles Edward Collins guilty of the crimes for which he was charged and convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Case No. A89A0264

4. Defendant Willie Jack Collins asserts the trial court erred in refusing to sever the offense of possession of a firearm during the commission of a certain crime (aggravated assault) from the other offenses. This assertion is devoid of merit.

Prior to trial, defendant moved the court to sever the offense of possession of a firearm by a convicted felon. That motion was granted and a bifurcated trial was conducted accordingly. At no point, however, did defendant seek the severance of the offense of possession of a firearm during the commission of a certain crime (aggravated assault). He cannot now complain that the trial court did not sever that offense from the other offenses.

Even if defendant had moved to sever the offense of possession of a firearm during the commission of a certain crime (aggravated assault), we would find no error. The evidence introduced in support of the aggravated assault offense and the possession of a firearm during the commission of a certain crime (aggravated assault) offense was virtually the same and the evidence of one crime would have been admissible in the trial of the other crime. It could not have been said, therefore, that the trial court abused its discretion in failing to sever these offenses. See Catchings v. State, 256 Ga. 241, 243 (4) (347 SE2d 572).

5. The evidence was sufficient to enable any rational trier of fact to find defendant Willie Jack Collins guilty of the crimes for which he was charged and convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, supra.

Judgments affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0434.
    HENDERSON v. THE STATE.
    (381 SE2d 423)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine with intent to distribute and possession of marijuana. The evidence at a jury trial disclosed that at about 4:30 in the morning on April 24, 1988, Officer Mark D. Bradley of the DeKalb County Police Department observed defendant, two other men and a woman sitting in a “Volkswagen Beetle” automobile, parked outside a truck stop/motel. Officer Bradley saw one of the men consuming an alcoholic beverage and, believing this to be in violation of a local ordinance, the officer drove his patrol car directly behind the Volkswagen, approached the driver’s side of the vehicle and asked the passengers for their identification. None of the passengers complied and Officer Bradley asked defendant, who was then in the driver’s seat, to step out of . the car. As defendant exited the Volkswagen, “he opened the driver’s door, and as he stepped out of the vehicle [Officer Bradley] noticed that [defendant] dropped a plastic bag object out of his hand on the ground right beside the driver’s door of the vehicle. . . .” Officer Bradley then escorted defendant to his patrol car, conducted “a simple pat down search” and discovered in defendant’s “right front pocket a brown small paper bag containing several smaller ziplock plastic bags. There was also a plastic bag inside the brown paper bag containing an unknown type [of] white powder substance. At [that] time [defendant] was placed under arrest for the suspicion of a narcotics violation.” (It was later discovered that the “white powder” was not a controlled substance.)

After defendant was secured, Officer Bradley “walked back to the [Volkswagen] to keep an eye on the other subjects [and to] secure what it was that [defendant] dropped as he got out of the vehicle.” Officer Bradley found “a clear plastic bag like a sandwich bag containing a green leafy substance.” The plastic bag was “laying on the ground beside the driver’s door of the vehicle ...” and it later proved to contain 3.3 grams of marijuana. Officer Bradley “picked up [the marijuana and] instructed the subjects inside the vehicle to place their hands up on the seats and on the dash in the car. ... At that time, while shining [his] light in the car, [Officer Bradley] noticed on the driver’s seat... a small clear ziplock plastic bag containing white powder, and [what] looked like a small tissue paper rolled up into just a little lump laying right beside the clear plastic bag.” (The substance found in this plastic bag was shown to be “less than one gram of powder” which tested positive for cocaine.)

After other law enforcement officers arrived at the scene, the remaining occupants of the Volkswagen were searched. No “items of drug paraphernalia [were] found on the other three individuals . . . ,” but “a small syringe with a cigarette butt over the needle [and] a small piece of wire . . . were found on the passenger side of the vehicle and just down in between [the] passenger seat and the doorjamb.” Defendant was found guilty on both counts of the indictment and this appeal followed. Held:

1. In his first enumeration of error, defendant asserts the general grounds and argues that the equal access rule applies. Defendant also argues that the State failed to prove venue.

a. Equal Access. “ ‘In the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein. (Cits.) This rule is equally applicable to an automobile in which the accused is only the driver or in possession of the vehicle. (Cits.) As to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access of it.’ (Cits.) ... (In other words,) ‘merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.’ (Cits.) ... ‘7/ the only evidence of possession of contraband found in an automobile is that the defendant is the owner, the driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then (the) prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the (factfinder). . . .’ [Fears v. State, 169 Ga. App. 172 (1), 173 (312 SE2d 174)].” In the Interest of F. E. B., 188 Ga. App. 381, 382, 383 (373 SE2d 72).

In the case sub judice, although defendant was not in exclusive possession of the Volkswagen at the time the cocaine was discovered in the vehicle, the contraband was found in an area of the vehicle that defendant last occupied. Further, defendant was in possession of a controlled substance (marijuana) shortly before his arrest and he attempted to conceal the controlled substance from a law enforcement officer by dropping it on the ground outside his vehicle. This evidence and evidence showing that defendant was in possession of paraphernalia that was convenient for the division and distribution of controlled substances at the time of his arrest not only placed defendant outside the realm of the “equal access rule,” it was sufficient to enable any rational trier of fact to find that defendant was guilty, beyond a reasonable doubt, of possession of marijuana and possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Blitch v. State, 188 Ga. App. 487, 488, 489 (373 SE2d 227).

Decided April 6, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Eleni A. Pryles, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

b. Venue. “Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.” OCGA § 17-2-2 (a). Defendant was tried in the Superior Court of DeKalb County, Georgia. Officer Bradley testified that defendant committed the crimes charged in the indictment “at the Truck Stops of America on Thurmond Road ... in DeKalb County[, Georgia].” This argument is without merit.

2. Next, defendant contends the trial court erred in charging the jury as follows: “Should you find the defendant not guilty of the crime of violating the Georgia Controlled Substances Act as alleged in Count 1 of the indictment, [possession of cocaine with intent to distribute,] you would be authorized to consider under the evidence whether or not he did at said time and place commit the lesser offense of possession of cocaine.” Defendant argues that this charge denied the jury the right to select between the greater and lesser offenses, but required the jury first to find the defendant not guilty of the greater offense before considering the lesser.

“[T]he charge given properly informed the [jury] that it should first consider the offense as charged, and if it had a reasonable doubt as to the offense charged, then it could consider the lesser offense. Evans v. State, 148 Ga. App. 422, 423 (251 SE2d 325). Only by such a procedure can justice be done to each party to the proceeding. There is no error in the charge of the court.” Brownlee v. State, 155 Ga. App. 875, 877 (5) (273 SE2d 636). Compare Beck v. Alabama, 447 U. S. 625 (100 SC 2382, 65 LE2d 392).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0750.
    In the Interest of D. R. C.
    (381 SE2d 426)
    Decided April 6, 1989.

      Larry L. Duttweiler, for appellant.

      Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Stephanie B. Manis, Deputy Assistant Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assis

      tant Attorneys General, Joseph E. Cheely III, for appellee.
   McMurray, Presiding Judge.

Appellant, the mother of D. R. C., appeals from the order of the Juvenile Court of Gwinnett County terminating her parental rights in the child. Held:

1. We must reverse, due to deficiencies in the State’s petition for termination of parental rights which were raised at the hearing through appellant’s motion to dismiss the petition.

The State’s petition fails to provide any of the facts upon which it is predicated. The allegations of the petition merely provide a condensation of the statutory provisions of OCGA § 15-11-81 (a) and (b) (4) (A), rather than setting forth in ordinary and concise language the facts required by OCGA § 15-11-25. Since the State’s petition fails to set forth in ordinary and concise language the facts demonstrating the nature of the appellant’s alleged failure to provide proper parental care or control, appellant lacked sufficient information to enable her to prepare her defense. This amounted to a denial of due process. See T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (1) (212 SE2d 650).

The State’s petition also failed to comply with OCGA § 15-11-82 (c) by stating clearly the effects of an order of termination of parental rights as stated in OCGA § 15-11-80. The petition contained the first sentence of OCGA § 15-11-80 almost verbatim, but did not provide any notice of the effects of the second sentence of that paragraph which provides: “The parent is not thereafter entitled to notice of proceedings for the adoption of the child by another, nor has the parent any right to object to the adoption or otherwise to participate in the proceedings.” Insofar as Moss v. Moss, 135 Ga. App. 401, 403 (2) (218 SE2d 93), may suggest a contrary result, we note that decision preceded the enactment of OCGA § 15-11-82 and therefore is not controlling.

2. We need not address appellant’s remaining enumeration of error challenging the sufficiency of the evidence. See In re J. D. H., 188 Ga. App. 466 (2) (373 SE2d 279).

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0758.
    MORGAN v. THE STATE.
    (381 SE2d 427)
    Decided April 6, 1989.

      Minor, Bell & Neal, Rickie L. Brown, J. Tracy Ward, for appellant.

      Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of aggravated child molestation and sentenced to serve 20 years in the penitentiary. He appeals, enumerating error on the general grounds. In this regard, he complains that the conviction rests solely on the uncorroborated, contradictory testimony of the victim. Held:

Viewing the evidence in favor of the State, we find it sufficient to enable a rational trier of fact to find defendant guilty of the offense of aggravated child molestation beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Weeks v. State, 187 Ga. App. 307, 308 (1) (370 SE2d 344). In order to uphold an aggravated child molestation conviction it is unnecessary to find corroborating evidence. Scales v. State, 171 Ga. App. 924 (321 SE2d 764); Weeks v. State, 187 Ga. App. 307, 308, supra. In the case sub judice, the testimony of the victim, in and of itself, was sufficient to authorize a conviction. Any contradictions in the victim’s testimony were resolved by the jury. Defendant cannot complain simply because any such contradictions were resolved against him.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Banke, Presiding Judge. Sognier, Judge,

text:
    A89A0163.
    SUTTON v. QUALITY FURNITURE COMPANY et al.
    (381 SE2d 389)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case sustained a compensable injury to both elbows in May of 1983, for which he received temporary total disability benefits. Following his return to work, he filed the present claim to recover permanent partial disability benefits based on residual pain caused by chronic tendinitis attributable to the injury. At issue in this appeal is whether, under current Georgia law, permanent partial disability benefits are recoverable for a physical impairment caused solely by pain. The administrative law judge, the board, and the superior court answered this question in the negative, concluding that OCGA § 34-9-1 (5), quoted infra, requires disability or bodily loss ratings to be based upon the “Guides to the Evaluation of Permanent Impairment” published by the American Medical Association, which evidently provide no methodology for the evaluation of physical impairment based solely on pain.

The claimant’s two treating physicians each gave him a permanent partial disability rating of 15 percent. One of these physicians stated simply that his rating was “based on the pain secondary to your chronic tendinitis,” while the other stated: “He has loss of motion with the pain-spasm-pain cycles during periods of exacerbation. This is the primary reason ... I have chosen a 15% rating.” A third physician, employed by the employer/insurer to conduct an evaluation, gave the claimant a 0% disability rating, with the following explanation: “[W]hen Georgia statutory guidelines are applied, there is no impairment of either upper limb due to involvement of his elbows. Have indicated that this does not mean he does not experience pain nor does it mean that his use is totally normal. He does appear to understand distinctions between impairment and disability.”

Although no copy of the pertinent AMA standards appears in the record, the parties appear to be in agreement that the Guides make no provision for the rating of disability based solely on pain. As part of his medical evidence in the case, the claimant submitted a letter from the Director of the American Medical Association explaining that “AMA’s and other’s guides’ near silence on pain ... is not due to failure to recognizing (sic) pain as a potentially chronically impairing condition, but due to our inabilities to agree upon methods of evaluating or measuring pain.” Held:

There is no question that prior to the enactment of OCGA § 34-9-1 (5) in 1982 (see Ga. L. 1982, pp. 2485, 2486), permanent partial disability benefits could be awarded based on physical impairment resulting solely from pain. See, e.g., Durden v. Liberty Mut. Ins. Co., 151 Ga. App. 399, 400 (259 SE2d 656) (1979) (holding that “[w]hile pain is not itself compensable under [OCGA § 34-9-263], a compensable loss of use nevertheless results where the pain is so severe that ‘the human mechanism must cease the use rather than bear the pain’ [Cit.]).” Accord Bouldware v. Delta Corp., 160 Ga. App. 100, 101 (286 SE2d 333) (1981). Moreover, there would appear to be no question that wage-loss benefits for total disability may still be awarded on the basis of impairment resulting from pain. See, e.g., State of Ga. v. Graul, 181 Ga. App. 573 (353 SE2d 70) (1987). However, the administrative law judge, the full board, and superior court agreed that because the pertinent AMA Guides do not provide for the evaluation or measurement of partial impairment based solely on pain, OCGA § 34-9-1 (5) precludes any award of permanent partial disability benefits for such impairment.

We disagree for two reasons. First, and foremost, the Code section does not mandate absolute reliance on the AMA Guides but instead provides as follows: “In all cases arising under [this chapter], any percentage of disability or bodily loss rating shall be based upon ‘Guides to the Evaluation of Permanent Impairment’ published by the American Medical Association or any other recognized medical books or guides.” OCGA § 34-9-1 (5). (Emphasis supplied.) Cf. General Motors Corp. v. Summerous, 170 Ga. App. 338 (317 SE2d 318) (1984) (holding that psychiatric evidence offered by a claimant to support his claim for permanent partial disability benefits based on mental illness was not invalidated by the psychiatrist’s lack of reliance of the AMA Guide, particularly where the degree of impairment calculated by the witness was consistent with the Guides). Second, it would appear that the AMA Guides do not themselves prohibit the assessment of disability or bodily loss ratings based solely on pain but instead simply fail to address the issue one way or the other.

In other jurisdictions which have confronted the issue, it has been held that where the AMA Guides do not purport to cover a particular type of impairment, a statute or rule requiring their use in calculating disability ratings has no application. For example, in Adams v. Indus. Comm., 113 Ariz. 294 (552 P2d 764) (1976), the Arizona Supreme Court held that a rule mandating the use of the AMA Guides “must be so interpreted that the AMA Guides apply exclusively to the evaluation of permanent impairment to the extent that the AMA Guides cover the specific impairment and the percentage thereof. Beyond this, [the rule] has no application.” Id. at 765-6. Accord Gomez v. Indus. Comm. of Ariz., 148 Ariz. 565 (716 P2d 22) (1986). Similarly, in Dayron Corp. v. Morehead, 509 S2d 930, 931 (Fla. 1987), the Florida Supreme Court held that “[w]hen an injury is not covered by the AMA Guides, it is permissible to rely upon medical testimony of permanent impairment based upon other generally accepted medical standards.” Accord OBS Co. v. Freeney, 475 S2d 947 (Fla. App. 1985) (where the claimant was forced to cease work as a plasterer after developing an allergic reaction to wet cement, yet no disability would have been recognized under the AMA Guides because his allergy did not affect his everyday activities so long as he did not engage in such work). See also Quality Petroleum Corp. v. Mihm, 424 S2d 112, 113-114 (Fla. App. 1982).

We find these authorities to be persuasive; and, based on their reasoning, as well as on the fact that OCGA § 34-9-1 (5) does not mandate exclusive reliance on the AMA Guides, we hold that the administrative law judge, the board, and the superior court were in error in concluding that the AMA Guides precluded any award of permanent partial disability benefits in the present case as a matter of law.

The cases cited by the employer/insurer do not constitute authority for a contrary conclusion inasmuch as they do not address the issue of whether a statute or rule mandating the use of the AMA Guides in calculating physical impairment ratings operates to bar any recovery for a type of impairment which the Guides do not purport to address. See Special Idem. Fund v. Stockton, 653 P2d 194 (Okla. 1982); Humphrey v. David Witherspoon, Inc., 734 SW2d 315 (Tenn. 1987) ; Sumrall v. Crown Zellerbach Corp., 525 S2d 272 (La. App. 1988) . As for the employer/insurer’s contention, based on 2 Larson, Workers’ Compensation Law, § 57.14 (h-j), that compensation should never be awarded for an injury except to the extent it results in wage loss, this argument should be addressed to the legislature rather than to this court, inasmuch as OCGA § 34-9-263 (b) (1) specifies that payments for permanent partial disability generally are to be made “without regard to whether the employee has suffered economic loss as a result of the injury. . . .”

For the foregoing reasons, the judgment of the superior court is reversed with direction that the case be remanded to the board for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Pope and Benham, JJ., concur. Sognier and Beasley, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. While I agree with the majority that OCGA § 34-9-1 (5) contemplates the use of recognized disability ratings guides other than the AMA Guides to Evaluation of Permanent Impairment, I find no authority for use of a physician’s subjective opinion made without reference to any disability ratings guide.

The statute clearly authorizes the use of “recognized medical books or guides” in calculation of disability or bodily loss ratings. OCGA § 34-9-1 (5); see Ga. Laws 1982, p. 2485, amending former Code Ann. § 114-102 (now OCGA § 34-9-1) to “provide for the use of certain guides to the evaluation of permanent impairment.” However, in the case at bar there is no evidence appellant’s physicians consulted any ratings guides when formulating their opinions. Dr. Sidney Bell stated in his letter, admitted into evidence below, that he assigned appellant a disability rating of fifteen percent “based on the pain secondary to your chronic tendinitis,” and that “I cannot rate [appellant] by the AMA guidelines, I can only rate him due to his pain.” Dr. Jerry Weaver agreed with Dr. Bell’s percentage loss rating because of appellant’s “loss of motion with the pain-spasm-pain cycles during periods of exacerbation.” Neither physician mentioned the use of any other recognized guide in his evaluation.

Decided March 13, 1989

Rehearing denied April 10, 1989

Mundy & Gammage, E. Lamar Gammage, Jr., George E. Mundy, for appellant.

Judy Greenbaum Croy, for appellees.

The cases cited by the majority as persuasive do not support the majority’s conclusion that the medical opinions submitted in the instant case were sufficient under Georgia law. In Adams v. Indus. Comm., 113 Ariz. 294 (552 P2d 764, 765) (1976), the claimant’s physician computed the impairment percentage by a published United States Department of Labor standard, whereas the medical experts in the case at bar based their opinions solely upon subjective assessments of appellant’s condition without apparent reference to any “recognized medical books or guides” as required by OCGA § 34-9-1 (5). The Florida cases the majority cites, Dayron Corp. v. Morehead, 509 S2d 930 (Fla. 1987); OBS Co. v. Freeney, 475 S2d 947 (Fla. App. 1985); and Quality Petroleum Corp. v. Mihm, 424 S2d 112 (Fla. App. 1982) are not authoritative because each construes a Florida statute which permits but does not require the use of “generally accepted schedules” such as the AMA Guides. See Dayron, supra at 931, n. 2. Similarly, in Gomez v. Indus. Comm., 148 Ariz. 565 (716 P2d 22) (1986), although the court discussed the procedure to be used when the AMA Guides do not address the claimant’s loss, it then found the AMA Guides provided an accurate measure of the degree of impairment at issue and thus did not determine what alternative standard would have been sufficient.

I find that OCGA § 34-9-1 (5) requires that a disability rating be based either on the AMA Guides or upon another published book or guide recognized by the medical profession, and as there is no evidence the medical opinions here were based upon such alternative guides I would affirm the judgment of the superior court.

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


text:
    A89A0003.
    HELMS v. THE STATE.
    (381 SE2d 428)
   McMurray, Presiding Judge.

Defendant appeals his conviction for driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). Held:

Decided April 10, 1989.

Billy L. Spruell, for appellant.

Patrick Head, Solicitor, Victoria S. Aronow, Melodie H. Clayton, H. William Rowling, Jr., Assistant Solicitors, for appellee.

In his sole enumeration of error, defendant asserts the general grounds and first argues that the State failed to lay a proper foundation for the introduction into evidence of the results of his breath test.

“Failure to make a timely and specific objection at trial may be treated as waiver on appeal. Seabrooks v. State, 251 Ga. 564, 567 (308 SE2d 160).” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552). In the case sub judice, defendant did not object to testimony showing that he had “[pjoint eighteen grams of alcohol per one hundred cubic centimeters of blood.” Consequently, there remains nothing for this court to review. See Riley v. State, 175 Ga. App. 810 (1) (334 SE2d 863).

Next, defendant argues that the evidence was insufficient to support the verdict because the undisputed testimony of his expert witness showed that the results of his breath test were unreliable. This contention is without merit.

“The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court deals only with the sufficiency of the evidence, not its weight. Miller v. State, 163 Ga. App. 889, 890 (1) (296 SE2d 182) (1982).” Porter v. State, 167 Ga. App. 697, 698 (1) (307 SE2d 515). In the case sub judice, the evidence not only showed that defendant had a blood alcohol level of .18 grams, it showed that he drove his vehicle through a police road detour, ignoring police caution lights and ignoring danger signals from a law enforcement officer; that he forced several road workers from the road; that defendant smelled of alcohol when he was apprehended by police officers; that he failed several field sobriety tests before his arrest and that he had consumed at least four 12-ounce bottles of beer before operating his vehicle on the night of his arrest. This evidence was more than sufficient to enable any rational trier of fact to find that defendant was guilty, beyond a reasonable doubt, of being in actual physical control of a motor vehicle while under the influence of alcohol to an extent which rendered him a less safe driver. OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Porter v. State, 167 Ga. App. 698 (1), supra.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0020.
    FOWLER v. BOWMAN et al.
    (381 SE2d 429)
   McMurray, Presiding Judge.

On May 25,1988, plaintiffs brought this declaratory judgment action seeking a declaration of their rights under a covenant not to compete. They alleged that, on September 25, 1987, they sold a convenience store to defendant; that the convenience store was located in Danville, Georgia; and that, in conjunction with the sale of the store, plaintiffs agreed they would not compete with defendant “for a period of five (5) years in either Danville, Georgia, or Allentown, Georgia.” Additionally, plaintiffs alleged that they intended to operate a new convenience store upon a site “located two and one-half miles from the city limits of Allentown, Georgia, and one and one-half miles from the city limits of Danville, Georgia”; that defendant informed them the operation of a convenience store at that location would violate the covenant not to compete; and that, as a result of the controversy between plaintiffs and defendant and plaintiffs’ uncertainty with respect to their rights, plaintiffs were in need of the guidance and protection of the court.

A copy of the covenant not to compete was attached to the complaint and incorporated therein by reference. In pertinent part, the covenant provides: “First Parties [plaintiffs] hereby agree and covenant that, from and after the execution of this agreement they will not at any time for a period of 5 years from the date hereof, either alone, or jointly with, or as agent for employee of any person or persons, firms, or corporations, excepting only as agent for or employee of the Second Party [defendant] either directly or indirectly set up, exercise, conduct, or be engaged, employed or interested in or carry on in Danville and Allentown, Georgia, the grocery, convenience, wash house, laundromat, gas, oil, diesel, etc. sales, as heretofore carried on and conducted by First Parties. ...” (Emphasis supplied.)

Via rule nisi, the trial court set the matter for trial on July 6, 1988. Thereafter, service was perfected upon defendant.

Defendant answered the complaint and denied the material allegations set forth therein. Additionally, defendant counterclaimed seeking damages for fraud. In this regard, defendant alleged that the intent of the covenant not to compete was to restrict plaintiffs from operating a convenience store in the “general marketing area of Dan-ville and Allentown, Georgia”; that at the time plaintiffs agreed not to compete with defendant “they were in fact looking for another convenience store location within the immediate marketing area of the present store”; that defendant purchased the convenience store relying upon plaintiffs’ representations that they would not compete with defendant; and that plaintiffs’ representations were false and made with an intent to defraud defendant.

Decided April 10, 1989.

Talbot & Ladson, Thomas W. Talbot, Larry W. Rowe, for appellant.

The trial court called the case on July 6, 1988, and proceeded to hear the parties out. Defendant objected to going forward at that time, he insisted he had a right to have the case heard by a jury and that he should be afforded more time before going to trial to complete discovery.

Over defendant’s objection, the trial court permitted plaintiffs to introduce evidence showing the location of the “new” convenience store to be “in between a mile and mile and a half . . . from the City of Danville” and “two to two and a half miles from the City of Allentown.” No further evidence was adduced and the hearing was adjourned.

Thereafter, the trial court ruled: “[T]he agreement not to compete is not ambiguous and by its clear terms prohibits Plaintiffs from constructing a new store within the town limits of Allentown and Danville, Georgia. The proposed construction which is not located within these town limits is not violative of said agreement. THEREFORE, the Plaintiffs are within their legal rights in continuing and completing the improvement of their property free from any interference from the Defendant. The counterclaim of defendant is precluded and disallowed because the Court finds no issue of fact upon which this can operate.”

Dissatisfied with the trial court’s ruling, defendant appealed. Held:

We are perplexed by the procedural posture of this case. (Did the case proceed to trial without a jury? If not, what was the nature of the July 6, 1988, hearing?) Nevertheless, we are able to render a substantive decision.

In our view, the covenant not to compete is ambiguous on its face. The covenant prohibits plaintiffs from operating a convenience store “in Danville and Allentown, Georgia.” (Emphasis supplied.) Does the italicized phrase refer to the town limits of Danville and Allentown? Or does it refer to a geographical marketing area known as Danville and Allentown? In the absence of parol evidence, we cannot tell. The phrase is equally susceptible to either meaning. See Rippe v. Doran, 4 Wash. App. 952 (486 P2d 107) (1971). See also 45 ALR3d Anno. 1339 (1972). It follows that the trial court erred in entering judgment in favor of plaintiffs and against defendant.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.

Milton Harrison, William E. Hicks, for appellees.


text:
    A89A0059.
    LEWIS v. THE STATE.
    (381 SE2d 558)
   McMurray, Presiding Judge.

Defendants, husband and wife, were indicted for cruelty to children. At trial, the evidence revealed the following:

During the morning of February 9, 1986, defendants’ neighbor, Mrs. Robin Smith, heard defendants’ 32-day-old infant crying. Mrs. Smith went to church that morning and when she returned, “the baby was still crying.” Mrs. Smith contacted defendant wife via telephone and inquired, “ ‘How’s the baby’s leg?’ ” Defendant wife inquired of Mrs. Smith as to how she knew about it. Mrs. Smith informed defendant wife that her “daughter’s girlfriend told [her] about it. . . .” Mrs. Smith then offered assistance to defendant wife. The child’s mother did not reply and Mrs. Smith rushed to defendants’ apartment. There she found defendant husband talking on the phone. The infant was in the bedroom crying. Mrs. Smith examined the baby and “noticed on the left leg, up ... in the calf, it was swollen and tight. [She] rubbed [her] finger across and . . . could feel the bone.” Immediately, Mrs. Smith informed defendant wife that the child’s leg appeared to be broken and that “the baby needed to go to the hospital.” At that time, defendant husband was “arguing” with his wife. Consequently, Mrs. Smith “wrapped the baby up, got into [her] car . . .” with defendants and took the child to the hospital.

Dr. Daniel Joseph Duvall, a pediatric emergency room physician, examined the infant and observed that the child’s “lower leg on the left side was markedly swollen and very hard.” Dr. Daniel ordered an X-ray examination of the child’s left leg and he discovered that “the major bone of the lower leg, which is the tibia, [had] a break going right through the middle of it. [It was] a sharp break right across.” Dr. Daniel determined that the bone had been broken for about “ten days.”

Dr. James Edward Hulse III, another physician familiar with pediatric care, ordered a more thorough X-ray examination and it was discovered by Dr. Huey Bullock, a “diagnostic radiologist,” that the child suffered “two definite fractures and [a] deformity of the lower leg, which [looked] like [a] healed fracture deformity,” more specifically, there was discovered on “the left lower leg ... a recent fracture, probably two, two plus, maybe three weeks old.” There was “a healing fracture of the upper right leg that [was] probably three weeks old [and the] healed fracture deformity of the right lower leg [was] probably about a month old.”

Defendant and defendant’s wife told Dr. Duvall that they had been aware of the child’s condition for “one to two days before [the doctor] saw him.” (However, defendant wife testified that she informed defendant husband of the child’s injuries “five to six days before the baby was taken to the doctor [by Mrs. Smith]”.) From this and other evidence adduced at trial both defendants were found guilty of cruelty to children. Defendant husband now appeals and we are concerned with his appeal only. Held:

1. In his first enumeration of error, defendant challenges the sufficiency of the evidence.

“Under our Code, cruelty to children may be committed by either of two methods: (1) by wilfully depriving a child of necessary sustenance to the extent that the child’s health or well-being is jeopardized, or (2) by maliciously causing the child cruel or excessive physical or mental pain. OCGA § 16-5-70.” Howell v. State, 180 Ga. App. 749, 751 (3) (350 SE2d 473). In the case sub judice, there was sufficient evidence to enable any rational trier of fact to find defendant was guilty, beyond a reasonable doubt, of the offense of cruelty to children (causing his 32-day-old child excessive physical pain by maliciously failing to seek medical attention for the child’s sensitive and swollen left leg). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In this regard, the father admitted that he was aware of the swelling in the child’s left leg “about a day or two” before Mrs. Smith took the baby to the hospital. Most persuasively, however, was defendant wife’s testimony that defendant did not respond when she mentioned the child’s swollen leg to him and “I guess [defendant’s] mind was on other things.”

2. Next, defendant contends the trial court erred in charging the jury on the entire Code section which defines the offense of cruelty to children. Defendant argues that this instruction confused and misled the jury. This argument is without merit.

“ ‘It is not usually cause for new trial that an entire Code section is given. Ford v. State, 232 Ga. 511, 517 (12) (207 SE2d 494) (1944). Accord Highland v. State, 127 Ga. App. 518 (1) (194 SE2d 332) (1972). This is so even though a part of the charge may be inapplicable under the facts in evidence. Highland, supra at p. 519. Rowles v. State, 143 Ga. App. 553, 557 (239 SE2d 164) (1977), cert. den. Accord Pippin v. State, 205 Ga. 316 (9), 323 (53 SE2d 482) (1949).’ Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980).” Brooks v. State, 250 Ga. 739, 741 (2) (300 SE2d 810).

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs in the judgment only.

Decided April 10, 1989.

D. Duston Tapley, Jr., for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A89A0075.
    COLLINS v. THE STATE.
    (381 SE2d 430)
   McMurray, Presiding Judge.

Defendant was accused and convicted of public indecency. (OCGA § 16-6-8.) He was sentenced to serve 12 months on probation and ordered to pay a $1,000 fine. This appeal followed. Held:

1. On May 28, 1987, defendant was sunning himself on the back porch of his home. He was wearing socks, shoes and underwear. The underwear was pulled down close to defendant’s knees, exposing his genitals. A neighbor and a police officer clearly saw defendant’s genitals. The observers were 69 feet away and their view was unobstructed.

The trial court did not err in overruling defendant’s motion for a directed verdict of acquittal. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the offense of public indecency beyond a reasonable doubt. McGee v. State, 165 Ga. App. 423, 424 (2) (299 SE2d 573); Hester v. State, 164 Ga. App. 871 (1) (298 SE2d 292); Collins v. State, 160 Ga. App. 680 (1) (288 SE2d 43). Whether the act was performed in a “public place” within the meaning of the statute was a question of fact which the trial court properly left for the jury’s resolution. Rushing v. State, 133 Ga. App. 434, 435 (1) (211 SE2d 389); OCGA § 16-1-3 (15).

2. The trial court charged the jury and it retired to deliberate. Soon, the jury sent a note to the judge which read: “Question: Is charge of public indecency (lewd exposure of sex organ) still unlawful if no person can view or see the sex organ?”

The trial court responded to the jury’s inquiry without consulting counsel. It sent the jury a note and photostatic copy of the portion of its charge defining public indecency. The note read: “You must decide the case based on the evidence and charge as you remember it. Attached is the charge on public indecency.”

Thereafter, while the jury was deliberating, defendant’s counsel learned about the communications between the jury and the trial court. He attempted to locate the solicitor so the matter could be discussed. In the meantime, the jury returned to the courtroom and rendered its verdict. Before sentence was imposed, defendant moved for a mistrial on the ground that the jury was recharged in defendant’s absence. The trial court overruled the mistrial motion.

Defendant contends the trial court erred in recharging the jury in his absence and in denying his motion for mistrial. We agree.

“ ‘The rule is well established in this state, that the defendant on trial must be present when the court takes any action materially affecting his case.’ Andrews v. State, 196 Ga. 84, 94 (26 SE2d 263) (1943); see Wanzer v. State, 232 Ga. 523, 526 (207 SE2d 466) (1974). ‘This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial.’ Miller v. State, 13 Ga. App. 440, 442-3 (79 SE 232) (1913); see Wilson v. State, 212 Ga. 73 (90 SE2d 557) (1955); see also Pierce v. State, 47 Ga. App. 830 (171 SE 731) (1933). ‘In considering the right of the accused to be present at every stage of the trial, and to have his counsel present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the ground that such an error had been committed by the trial judge. To warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character.’ Miller v. State, supra at 444.” Stewart v. State, 165 Ga. App. 428, 429, 430 (300 SE2d 331).

Pursuant to an application of the foregoing principles, it is clear that the trial court erred in communicating with the jury in the absence of defendant and his counsel. The State concedes as much. It argues, however, that defendant could not have been harmed by the communication because it simply amounted to a recharge of a portion of the charge originally given. This argument fails in light of Hopson v. State, 116 Ga. 90, 91 (2) (42 SE 412).

In Hopson v. State, supra, the trial court, in the absence of that defendant and his counsel, gave the jury a second Charge which was virtually the same as the first charge. The Supreme Court held that “the fact that the ‘recharge’ was, in substance, the same as the original charge” did not “dispense with the necessity for ordering a new trial. The great point is that the accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.” Id. at 91, 92.

In the case sub judice, the recharge cannot be deemed harmless. After all, the jury was instructed on a substantive issue in the absence of defendant and his counsel. Compare Leverette v. State, 104 Ga. App. 743 (1) (122 SE2d 745). Moreover, the recharge coming as it did in written form, was not in accord with good practice. See Woodard v. State, 91 Ga. App. 374 (2) (85 SE2d 723). Surely, defendant and his counsel should have been afforded an opportunity to object to the recharge and the manner in which it was given. See Hopson v. State, 116 Ga. 90, 91, supra.

Under the particular facts and circumstances of the case sub judice, defendant is entitled to a new trial because the jury was recharged in the absence of defendant and his counsel. Accordingly, the judgment is reversed.

3. Preliminarily, defense counsel stated that he intended to cross-examine the victim as to whether she was pursuing a “vendetta against [defendant] because of rumors or accusations that he made about her character.” The trial court replied that it would not allow such a cross-examination because the “rumors” concerned the victim’s past sexual conduct. Defendant asserts that, in so ruling, the trial court erroneously denied his right to a thorough and sifting cross-examination because he was not permitted to demonstrate the victim’s bias. See OCGA § 24-9-68. The State contends, on the other hand, that the trial court ruled properly because evidence concerning the victim’s past sexual conduct is irrelevant. See Butler v. State, 173 Ga. App. 168 (1) (325 SE2d 835). Because we reverse on other grounds (see Division 2), we need not decide whether the trial court’s ruling constituted harmful error. We suggest, however, that upon retrial, the trial court permit a limited inquiry concerning the victim’s bias which does not touch upon the victim’s past sexual conduct, if any. See McDuffie v. State, 121 Ga. 580, 581 (7) (49 SE 708), wherein it was held that “[w]hile the defendant could show that the State’s witness had unkindly feelings toward him, it was not competent to go into details of the difficulty between the witness and the defendant.”

4. In his third enumeration of error, defendant contends the trial court erred in permitting evidence of similar transactions because the prosecution did not comply with Rule 31.3 of the Uniform Rules for the State Courts. 253 Ga. 801, 854, 887. The alleged error is not likely to occur upon retrial, and therefore, it need not be considered.

5. The trial court did not err in refusing to charge defendant’s first, second, third, fourth, sixth, seventh, eighth and tenth requests to charge. These requests were adequately covered in the charge as given by the trial court. Besides, the trial court’s charge employed less argumentative language than the charges submitted by defendant. See Adams v. State, 186 Ga. App. 599, 603 (5) (367 SE2d 871).

6. The trial court did not err in charging on voluntary intoxication. Contrary to defendant’s contention, the charge was supported by the evidence.

It was not incumbent upon the trial court to charge that involuntary intoxication can be a defense. Evidence of involuntary intoxication was lacking.

7. Defendant contends the trial court erred in denying his motion in limine. Via the motion, defendant sought a ruling which would have prevented the arresting officer from testifying about observations she made following defendant’s arrest. The motion was predicated upon the ground that defendant was arrested illegally. We disagree.

“An officer is authorized to arrest without a warrant if an offense is committed in his presence or within his immediate knowledge. OCGA § 17-4-20 (a). He must have probable cause to believe this has occurred. Perryman v. State, 149 Ga. App. 54, 56 (3) (253 SE2d 444) (1979).” Ridley v. State, 176 Ga. App. 669, 670 (337 SE2d 382).

Having committed the offense of public indecency in the presence of the arresting officer, defendant was subject to warrantless arrest. Ridley v. State, supra; Caito v. State, 130 Ga. App. 831, 833 (2) (204 SE2d 765). The officer was not required to obtain a warrant simply because defendant was sitting on his porch. After all, defendant was not in his house when the arrest was made. See Mincey v. State, 251 Ga. 255, 261 (304 SE2d 882); Ridley v. State, supra. Defendant was not arrested illegally. Accordingly, the trial court did not err in denying the motion in limine.

8. Finally, defendant contends he was selectively prosecuted in violation of his equal protection rights because others similarly situated are not prosecuted. This contention is without merit. There was no evidence whatsoever that others similarly situated are not prosecuted generally. Nor was there any evidence of purposeful discrimination based upon arbitrary criteria. See Sabel v. State, 250 Ga. 640, 643 (300 SE2d 663); Carver v. State, 185 Ga. App. 436, 438 (3) (364 SE2d 877).

Decided April 10, 1989.

Lucas & Bond, Kenneth E. Lucas, for appellant.

Carl A. Veline, Jr., Solicitor, Robert Turner, Assistant Solicitor, for appellee.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0128.
    WALLACE v. RAMEY et al.
    (381 SE2d 434)
   McMurray, Presiding Judge.

Doris J. Wallace brought this personal injury action against Kathy L. Ramey and Randall C. Ramey. It was alleged that Ms. Ramey was liable to plaintiff Wallace because plaintiff was injured in an automobile collision which was caused proximately by the negligence of Ms. Ramey. The liability of Mr. Ramey was predicated upon the family purpose doctrine. Defendants answered the complaint and denied they were liable to plaintiff. Following discovery, the case proceeded to trial.

The following facts were adduced at trial: Plaintiff was driving her automobile on Reed Road in Smyrna, Georgia. As she approached an intersection, she slowed down because cars were in front of her and the sun was in her eyes. All of a sudden, plaintiff felt a “bang” because her automobile had been struck in the rear by a vehicle driven by Ms. Ramey.

Ms. Ramey acknowledged that the vehicle she was driving struck the rear of the plaintiff’s automobile. She explained that she was “blinded by the sun.” Ms. Ramey stated that she did not know whether plaintiff’s vehicle was moving at the time of the collision. She admitted her vehicle was moving.

The evidence was closed and the case was submitted to the jury. A verdict was returned in favor of defendants, judgment entered accordingly and plaintiff has appealed. Held:

1. Plaintiff contends the trial court erred in charging the jury concerning the law of sudden emergency. We are compelled to agree and reverse the judgment of the trial court.

“The defense of emergency is not available unless the evidence shows that there has been ‘ “a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” ’ [Cits.]” Ray v. Anderson, 189 Ga. App. 80, 81 (2) (374 SE2d 819). Accord Reece v. Callahan, 164 Ga. App. 131, 132 (296 SE2d 425).

Decided April 10, 1989.

Aubrey T. Villines, Jr., for appellant.

In the case sub judice, the evidence demonstrated only that Ms. Ramey was blinded by the sun and that her vehicle collided with plaintiffs automobile. No evidence was presented concerning the length of time which Ms. Ramey had to assess the situation, the choices which confronted her or the ultimate choice which she made. (In fact, it would appear that Ms. Ramey made no choice. She did not swerve; she did not brake.) Thus, unlike the defendant in Ray v. Anderson, 189 Ga. App. 80, 81 (2), supra, or Reece v. Callahan, 164 Ga. App. 131, 132, supra, there was no evidence whatsoever that Ms. Ramey apprehended a danger and attempted to avoid a collision. It follows that the trial court erred in charging the jury on sudden emergency. Howard v. Jones, 187 Ga. App. 756, 758 (2) (371 SE2d 196).

2. Under the particular facts and circumstance? of the case sub judice, the trial court did not err in charging the defense of accident. The jury was authorized to find that the collision occurred simply because Ms. Ramey was blinded by the sun and for no other reason. Thus, the jury could have concluded that the collision took place “in the absence of negligence and for which no one would be liable.” See Chadwick v. Miller, 169 Ga. App. 338, 339 (1), 344 (312 SE2d 835); Reece v. Callahan, 164 Ga. App. 131, supra.

3. The trial court did err, however, in charging the jury as follows: “[N]o person shall stop or suddenly decrease the speed of a vehicle which they are driving without first giving an appropriate signal . . . to the driver of any vehicle immediately to the rear when there is an opportunity to give such a signal. . . .” See OCGA § 40-6-123 (c). Although there was evidence that plaintiff slowed down when she approached the intersection, there was no evidence that plaintiff applied her brakes. Thus, there was no evidence that plaintiff suddenly decreased her speed or stopped. And there was no evidence as to whether plaintiff gave an appropriate signal by hand and arm or signal lamps. See OCGA § 40-6-124 (a). The charge could only have served to confuse the jury and consequently should not have been given under the particular facts and circumstances of the case sub judice.

4. The remaining enumeration of error pertains to an evidentiary ruling. We need not consider this enumeration because it is not likely to occur upon retrial.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, for appellees.


text:
    A89A0402.
    FAJARDO v. THE STATE.
    (381 SE2d 560)
   Sognier, Judge.

Marcelino Enrique Fajardo was convicted of trafficking in cocaine and giving a false name to a law enforcement officer, and he appeals.

The transcript of the hearing on appellant’s motion to suppress reveals that on June 3, Paul J. Markonni, a DEA Special Agent, accompanied by Atlanta Police Officer Vicki Prattes, observed appellant arrive at the Atlanta airport on a flight from Miami, a known drug source city. Markonni testified he noticed appellant speaking with another man and waiting while the other man requested connecting flight information. It appeared to Markonni that the two men were concealing their association, which in Markonni’s experience was a common practice used by drug traffickers in commercial air travel. Markonni also noticed that appellant, who was dressed casually, had his shirt tail out, which Markonni identified as another common practice used by drug couriers to conceal drugs on their person. Based on these observations, Markonni decided to follow the two men.

Markonni testified that he approached appellant, identifying himself as a Clayton County Sheriff’s Deputy, and appellant indicated in Spanish that he could not understand English. Markonni then said to appellant, “[t]icket?” whereupon appellant produced his airline ticket and handed it to Markonni. The ticket was a cash ticket in the name of Tony Hernandez and had no baggage claim checks attached. After glancing at the ticket, Markonni testified he asked appellant “Como ce llama?” (sic) and “without any hesitation at all [appellant] immediately said Tony Hernandez.” Markonni further testified that he returned the ticket, and said to appellant, “ ‘[p]assport, driver’s license?’ and he hesitated for a second and then he said, ‘[y]es.’ And [appellant] reached into his tote bag and pulled out a large man’s wallet that carries credit cards and a checkbook and business papers and things like that and from that he produced identification in his true name.”

Appellant testified that he never told Markonni his name was Tony Hernandez. Rather, appellant insisted that Markonni had asked him if he was Tony Hernandez and he said he was not, and voluntarily drew out his driver’s license to show Markonni his true name. Appellant also testified that the tote bag he was carrying, in which approximately half a kilogram of cocaine was later found, was not his, but that he had found it on the flight from Miami, and was going to turn it in to the airline gate agent for the connecting flight. In fact, he testified that when Markonni stopped him, he thought the bag might have been Markonni’s.

Appellant’s sole enumeration of error is that the trial court erred by denying his motion to suppress the evidence seized in a search of the tote bag he was carrying, in that the arrest for giving a false name to a law enforcement officer, to which the search was incident, was an illegal arrest.

(a) Appellant argues that because he did not understand English and Markonni did not speak Spanish very well, the information in Markonni’s possession at the time of the arrest was not sufficient to warrant a belief by a prudent man that appellant understood clearly the communications between them or intended to give Markonni a false name. We do not agree.

“The constitutional validity of [an] arrest without a warrant depends upon whether, at the moment the arrest was made, the officer had probable cause to make it; whether at that moment the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the appellant had committed or was committing an offense. [Cits.]” Waits v. State, 172 Ga. App. 524, 525 (1) (323 SE2d 624) (1984). In this case, a court interpreter, qualified by the State as an expert, testified at the hearing that “como ce llama” (sic) is universally understood by Spanish speakers as meaning “what is your name.” If Markonni’s testimony is believed, it is clear that appellant responded appropriately, albeit incorrectly, to the questions addressed to him by Markonni. The record also reveals the trial court indicated doubts about the veracity of appellant’s testimony. The trial court found that appellant’s testimony was not credible, and that Markonni had sufficient basis to warrant a prudent person in believing that appellant had intentionally given him a false name. “ ‘(U)nless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. (Cits.)’ [Cit.]” Durden v. State, 187 Ga. App. 433, 434 (2) (370 SE2d 528) (1988). We do not find these determinations by the trial court to be clearly erroneous, and consequently they must be accepted by this court. Id. Accordingly, the trial court did not err by denying appellant’s motion to suppress.

(b) Appellant also argues that the arrest was illegal because at the time of his encounter with appellant, Markonni had not complied with the requirements of OCGA § 35-9-15, and thus was not a properly constituted Georgia law enforcement officer. As evidenced by the stipulations at trial of this case, no writing existed making him a Clayton County Sheriff’s Deputy as required by OCGA § 35-9-15 (b), nor had Markonni complied with the requirements of the Georgia Peace Officer Standards and Training Act, OCGA § 35-8-1 et seq. Because Markonni was thus not “authorized to exercise the powers of a law enforcement officer generally and particularly [was not] authorized to exercise the power of arrest,” OCGA § 35-8-17 (a), he was not a properly constituted Clayton County Sheriffs Deputy, despite his displaying identification to the contrary, and thus even assuming appellant gave a false name to Markonni With the intent to mislead him, he could not be guilty of violating OCGA § 16-10-25.

Decided April 10, 1989.

Kocher, Wilson, Lichtenstein & Cobb, Eric G. Kocher, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Although appellant’s argument has appealing logic, the issue has been decided by this court adversely to appellant in Williams v. State, 171 Ga. App. 807 (1) (321 SE2d 386) (1984), and the Supreme Court denied certiorari. We reject appellant’s attempts to distinguish Williams on its facts, as we find them to be “on all fours” with those in the case sub judice. Because Williams is the law, we are constrained to follow it.

(c) Appellant’s attempt to argue that the arrest was pretextual must fail because even assuming, arguendo, that this issue was raised below, it has previously been decided by this court adversely to appellant in circumstances closer than those presented by the facts here. Laws v. State, 180 Ga. App. 528 (349 SE2d 478) (1986); Taylor v. State, 181 Ga. App. 703 (353 SE2d 619) (1987).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0470.
    CORDOVA et al. v. THE STATE.
    (381 SE2d 436)
   McMurray, Presiding Judge.

Defendants Cordova, Orindia and Perez were jointly tried before a jury upon an indictment which charged two counts of armed robbery and two counts of kidnapping. Each of the defendants was convicted of all four counts charged. Defendants’ appeal raises 12 enumerations of error. Held:

1. Defendants contend the trial court erred in charging the jury on the law of conspiracy. Defendants argue that “[b]y charging the jury on the law of conspiracy when the defendants were not charged with conspiracy in the indictment placed an unfair burden on defendants because they were not given notice as to evidence to be presented against them which they were not prepared to meet. This failure to inform defendants as to this burden denied them due process of law. ...”

In the case sub judice, defendants were not charged with the offense of conspiracy to commit a crime (OCGA § 16-4-8) and were given proper notice of the four charges against each of them. The inclusion of the substance of OCGA § 16-2-20 in the court’s charge to the jury created no denial of defendants’ due process rights under either State or federal constitutions. The evidence authorized a charge on conspiracy under OCGA § 16-2-20, even though not alleged in the indictment. Brooks v. State, 169 Ga. App. 543, 546 (9) (314 SE2d 115); Hayes v. State, 163 Ga. App. 177, 178, 179 (2) (293 SE2d 62); Hamby v. State, 158. Ga. App. 265 (2) (279 SE2d 715). See also Watkins v. State, 129 Ga. App. 891 (1) (201 SE2d 825).

2. In their second enumeration of error, defendants suggest error in the trial court’s charge to the jury which sets forth almost verbatim the substance of OCGA § 16-2-21. Since this charge is a correct statement of the law and properly adjusted to the evidence at trial we find no error in its submission to the jury. Murdix v. State, 250 Ga. 272, 275 (2) (297 SE2d 265); Dennis v. State, 216 Ga. 206, 207 (3) (115 SE2d 527); Rowles v. State, 143 Ga. App. 553, 556 (3) (239 SE2d 164).

3. Defendants’ third enumeration of error asserts the trial court “erred in its charge given to the duty of the jury in reference to reasonable doubt... in that it states that the jury has to doubt the law in order to acquit the defendants.” Defendants argue that “[t]he court committed error in its charge on reasonable doubt... in that it states that the jury has to have a doubt as to the law to acquit. This charge was confusing and incorrect as a matter of law and deprived defendants of a fair trial.” “The trial court’s charge on reasonable doubt was not erroneous. ‘It is well settled by case law that the charge of the court must be taken in its entirety when considering its impact upon the jurors.’ Dyke v. State, 232 Ga. 817, 825 (209 SE2d 166) (1974). When the charge in the present case is taken as a whole, the jury was clearly informed of the correct applicable law as to what constitutes a reasonable doubt.” Anderson v. State, 150 Ga. App. 318 (1) (257 SE2d 385). See Taylor v. State, 252 Ga. 125, 127 (2) (312 SE2d 311); Manning v. State, 162 Ga. App. 494, 496 (5) (292 SE2d 95).

4. In their fourth enumeration of error defendants contend a portion of the trial court’s charge directs the jury to find all defendants guilty if it determines that any one of the defendants is guilty. While the defendants are sometimes referred to collectively, when the jury charge is considered as a whole, defendants’ joint contention is clearly without merit. The jury was instructed to consider each charge in the indictment against each defendant separately and that each defendant was entitled to have the case against him decided solely on the law and evidence applicable to him. Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194); Shields v. State, 171 Ga. App. 200, 201 (319 SE2d 72).

Decided April 10, 1989.

James R. Venable, for appellants.

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

5. Defendants’ enumerations of error 5, 6, 7, 8, 9 and 10 address the trial court’s refusal to give various of defendants’ requested charges. The trial court’s charge covered in substance the principles articulated in the refused requests to charge. The refusal of the trial court to charge in the exact language requested was not error. Moore v. State, 186 Ga. App. 381, 383 (3) (367 SE2d 239); Dukes v. State, 186 Ga. App. 773 (2) (369 SE2d 257).

6. Defendants having presented no argument or citation of authority in support of their enumerations of error 11 and 12, they are deemed abandoned. See Rule 15 (c) (2) of the Rules of the Court of Appeals of Georgia.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.