author: Beasley, Judge.

text:
    A89A0413.
    SCHLEY v. THE STATE.
    (382 SE2d 120)
   Beasley, Judge.

Schley was convicted by a jury of two burglaries (entries with intent to commit thefts) at Hidden Pointe Apartments three days apart. OCGA § 16-7-1.

1. He invokes the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) in complaining that the evidence was insufficient.

The asserted insufficiencies as to the first burglary are that there was no evidence that 1) anything was taken; 2) there was an unauthorized entry; 3) the forced entry, if there was one, occurred on the date charged and not earlier; 4) he was the perpetrator, because there were discrepancies in the description given by a witness.

Appellant cites no authority for the proposition that it is the victim who must testify as to the first two facts. A resident of a nearby apartment saw a person he later identified as Schley exit a car he had been driving, leaving the motor running, and return a few minutes later with a color TV which he put in the back seat before driving away. He contacted the resident manager who discovered that the apartment alleged in the indictment had been broken into by breaking the door and that the TV was missing. The resident was not present but when he was told of the incident by the manager, he was upset and moved out after expressing fear for his security. He was unavailable for trial. The investigating officer saw that the TV table was empty and the cable box was on the floor next to it. This was sufficient evidence of the first two facts.

As to the date of occurrence, the date in the indictment was the same date on which the resident manager and the observing resident both testified the described events occurred. Appellant’s point is that the burglary, if there was one, could have occurred earlier than the day on which the resident saw someone carry away a TV, even if that someone were he. While that may be so, a reasonable inference could be drawn that the two incidents were part of one occurrence and one person’s activity. Thus it cannot be said that there was no evidence that a burglary involving the TV which the witness saw had occurred moments before.

The resident testified that the person he saw the first time was black, about five feet ten or eleven inches, built similarly to the witness, bearded, with about inch-long hair, wearing a hat and glasses. As to the second occasion three days later, when he again saw defendant, he testified that he gave the officer the same height and weight but did not recall saying he wore sunglasses although he may have, and that his cap was not a baseball cap. The investigating officer testified that the resident had described the person as being in his late thirties or forties, of medium height and build, with a beard and a hat. Both witnesses were testifying solely from recollection unaided by contemporaneous notes. The discrepancies, if any, are not such as to render identification inconclusive as a matter of law.

As to the second burglary, Schley argues that the evidence was insufficient because he was not seen going into the apartment, he was not seen or caught with stolen goods, and there was no scientific evidence to connect him. The screwdriver found tucked in defendant’s pants when he was arrested at the scene fit the pry marks on the doors of both apartments. The same resident who witnessed the first incident called police when he saw the same car back at the apartments three days later. Schley, who was identified by the resident as the same person he had seen three days earlier, was apprehended in the vicinity of an apartment to which the door had been pried open; items belonging in it were found in an adjacent empty apartment and were identified by their owner, who did not give Schley permission to enter.

The circumstantial evidence was sufficient to sustain the convictions. OCGA § 24-4-6. The Federal Constitutional standard which he relies on was also met.

2. The trial court did not abuse its discretion in declining to grant the jury’s request, made during deliberations, for certain evidence to be repeated. It is a discretionary matter. Johns v. State, 239 Ga. 681, 683 (238 SE2d 372) (1977). The court’s response to the jury was that it should decide the case on the evidence which had been presented, “on your collective recall and your notes and your perceptions and your opinions of what the evidence was.” Twelve persons heard and observed the witnesses. Documentary evidence was given to the jury for its study in the jury room. Repeating only selected portions of oral evidence can tend to highlight it and diminish the role of unrepeated evidence. Herron v. State, 155 Ga. App. 791, 795 (7) (272 SE2d 756) (1980). See Evans v. State, 148 Ga. App. 422, 424 (3) (251 SE2d 325) (1978); Berryhill v. State, 249 Ga. 442, 450 (11) (291 SE2d 685) (1982). The evidence requested did not involve complex or technical matters.

3. Schley contends that evidence introduced of two prior burglaries should have been excluded because the State failed to prove sufficient similarity with the charged offense. As to the first, a TV was stolen from an apartment and Schley had a screwdriver tucked inside his trousers waistband when he was apprehended after leaving with the TV in a truck. The second burglary, less than three weeks after the first, was also of an apartment. Schley was caught by the resident as Schley was entering through the rear window. He had a screwdriver in his hand and there was evidence that someone had tried to pry open the patio door.

Decided April 13, 1989

Rehearing denied April 28, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Eleni Ann Pryles, Robert E. Statham III, Assistant District Attorneys, for appellee.

The similarity of these two prior offenses, to which Schley had pled guilty, was sufficient to be relevant. They tended to show a common modus operandi or a similar course of conduct, the expressly limited purpose for which they were admitted, and it was thus not error to allow them for the jury’s consideration. See Hayes v. State, 175 Ga. App. 135 (332 SE2d 917) (1985).

Judgment affirmed.

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

       The jury was instructed as to the narrow limited purpose before the evidence was introduced. However, in the final charge the court broadened it to include knowledge, common design, motive, intent, good or bad faith, bent of mind, plan, scheme, identity, and other matters dependent on a person’s state of mind. No complaint that such was too broad in this context has been registered. See Nelson v. State, 181 Ga. App. 481, 482 (2) (352 SE2d 804) (1987), as illustrative of particularity. Also Felker v. State, 252 Ga. 351, 359 (1a) (314 SE2d 621) (1984); Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982).


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A0124.
    EARP v. HARRIS.
    (382 SE2d 156)
   Pope, Judge.

Appellee was arrested on March 2, 1988 for driving under the influence of alcohol in violation of OCGA § 40-6-391. At the time of his arrest, appellee refused to submit to a breath alcohol test. Consequently, on March 19, 1988, the Department of Public Safety (“DPS”) notified appellee, via certified mail, that his license was suspended for a period of six months pursuant to OCGA § 40-5-55. Appellee was also advised that he was entitled to a hearing to contest the license suspension but that in order to obtain a hearing “written notice must be received within ten days from the receipt of this notice, . . .” Appellee received notification of his license suspension on March 25, 1988. On April 22, 1988, 28 days after receipt of the notice, appellee requested a hearing on the license suspension. On May 5, 1988, the DPS notified appellee that he would not be afforded a hearing on his license suspension because he failed to request said hearing within the ten days specified in the notice received on March 25, 1988.

On May 11, 1988, the Probate Court of Upson County found appellee not guilty of the offense of DUI. Thereafter, on May 31, 1988, appellee filed a petition in the Superior Court of Crawford County seeking to have his suspension of license reviewed, based, inter alia, on the DPS’s failure to afford him a hearing prior to the suspension of his license. A hearing was held on appellee’s petition on June 29, 1988, at which time the superior court received evidence on whether appellee’s failure to file timely his request for a hearing was excusable.

On July 18, 1988, the superior court issued an order finding appellee was “providentially hindered from filing his request for a hearing within ten (10) days and that said failure was excusable and does not deprive this court of jurisdiction to review this decision. . . . The court further finds that the record in this case does not support the conclusion that the arresting officer had reasonable grounds to believe the [appellee] was driving or in actual physical control of the automobile in question at the time alleged in the citation. The court finds the decision of the [DPS] . . . must be reversed.” The DPS appeals the superior court’s order contending, inter alia, that the superior court erred in holding that the failure to request timely a hearing may be excused for “providential cause” and in concluding that such cause had been shown in the case at bar. We agree and reverse.

Our “Implied Consent” Statute, OCGA § 40-5-55 provides, in pertinent part, that a person under arrest for driving under the influence has the right to refuse the request of a law enforcement official to submit to a chemical test designated by that officer, as provided in subsection (a) of that section. OCGA § 40-5-55 (c). However, subsection (c) of that code section further provides that “the department, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle . . . and that the person had refused to submit to the test upon the request of the law enforcement officer, shall in accordance with . . . the ‘Georgia Administrative Procedure Act,’ and except as otherwise provided in this Code section, notify the person that his license is to be suspended, subject to review as provided for in this chapter. . . . [T]he period of suspension shall begin to run only after all administrative hearings and appeals have been exhausted.” (Emphasis supplied.) Subsection (d) further provides that “[t]he person so notified may request a hearing within ten days from the date of receipt of the notice sent by certified mail. ... If no hearing is requested within the ten days specified above, the right to a hearing shall have been waived and the license of the driver shall be suspended.” (Emphasis supplied.)

Decided April 28, 1989.

Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellant.

There is no question in the case at bar that the DPS notified appellee of his license suspension and his right to request a hearing as provided by OCGA § 40-5-55 (c) and (d), that appellee received that notification and that appellee failed to request a hearing within the specified period. The trial court, based on appellee’s evidence that he left Georgia shortly after he received the notification in order to travel to another state to take care of his daughter following surgery, found appellee’s failure to request a hearing within the prescribed time excusable. We do not agree, however, that this unfortunate family emergency rose to the level of a legal excuse for failing to respond within the mandatory time period. No evidence was presented that appellee suffered any mental or physical disability such as would render him legally incapacitated or incapable of requesting the hearing within the ten days afforded him by the statute. Thus the trial court erroneously concluded that appellee’s failure to request a hearing within the time provided both in the notice of suspension sent to him by the DPS and in OCGA § 40-5-55 was excusable.

In addition to its findings concerning the failure of appellee to request timely a hearing pursuant to OCGA § 40-5-55, the trial court also found the decision of the DPS to be “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” See OCGA § 50-13-19 (h) (5). Although we are not unmindful that the decision to revoke appellee’s license seems inconsistent with the decision of the probate court adjudicating appellee not guilty of the offense of DUI, a lesser standard of proof is required to impose the civil or administrative penalty of suspension of license (reasonable grounds for the officer to believe the arrested person was driving under the influence of alcohol, pursuant to OCGA § 40-5-55 (c)) than is required to convict for the criminal offense of DUI (beyond a reasonable doubt). Therefore, the two decisions are not necessarily inconsistent. See Sheffield v. State, 184 Ga. App. 141 (1) (361 SE2d 28) (1987). Here, appellee lost his opportunity to prove his license should not be suspended because the officer did not have reasonable grounds to believe he was driving under the influence by failing to request the hearing afforded him by OCGA § 40-5-55 in a timely fashion. Consequently, we find the trial court erred in reversing the decision of the DPS to suspend appellee’s license.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.

Bentley C. Adams III, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A0668.
    KLEIN v. STANDARD FIRE INSURANCE COMPANY.
    (382 SE2d 158)
   McMurray, Presiding Judge.

Standard Fire Insurance Company brought a complaint for declaratory judgment in the Superior Court of Fulton County, naming Paul Klein, its insured, as defendant. Plaintiff alleged it issued a homeowner’s insurance policy to defendant; that, thereafter, defendant’s residence was burglarized and defendant submitted a claim to plaintiff for the payment of numerous items; and, that plaintiff paid defendant the value of many such items. Plaintiff also alleged defendant sought payment of the value of additional items known as “Dynasty the T.V. Series Collection of Finished Jewelry”; that the “Dynasty” items have an alleged value of $11,134; and, that, pursuant to the policy issued to defendant, a $1,000 limit was applicable to a “loss by theft of jewelry, watches, furs, precious and semi-precious stones.” Finally, plaintiff alleged that declaratory judgment was appropriate because defendant posits the “Dynasty” items constitute personal property (which is covered by the policy without limitation) and plaintiff posits the “Dynasty” items constitute jewelry (subject to the $1,000 limit). In its “wherefore” (prayer) clause plaintiff sought a judgment declaring the “Dynasty” items to be jewelry within the meaning of the policy and subject to the $1,000 limitation of liability.

A copy of the insurance policy was attached to the complaint. It defined jewelry as “individually owned articles of personal adornment composed at least partially of silver, gold, platinum or other precious metals or alloys, whether or not containing pearls, jewels, or precious or semi-precious stones.”

Defendant answered the complaint and the case proceeded to trial upon stipulated facts. On May 12, 1987, the trial court entered judgment, concluding: “It is the judgment of the Court that unless the articles for which defendant seeks recovery under the policy . . . are composed of silver, gold, platinum or other precious metals or alloys, Plaintiff is bound by its own definition to pay defendant’s claim without further delay.”

Three weeks later, defendant filed a “Motion to Enforce Order and for Contempt.” Therein, defendant asserted that plaintiff refused to pay defendant’s claim even after defendant submitted an amended proof of loss stating that “none of the items claimed herein are composed in whole or in part of silver, gold, platinum or other precious metals or alloys”; that plaintiff should be held in contempt for failing to abide by the trial court’s judgment; and that plaintiff’s refusal to pay is evidence of bad faith entitling defendant to recover damages and attorney fees.

Decided April 28, 1989.

Thomas L. Washburn III, for appellant.

John R. Gaughen, for appellee.

On December 1, 1987, the trial court denied defendant’s “Motion to Enforce Order and for Contempt” and defendant appealed. Held:

Defendant has not followed the required procedure for interlocutory review and consequently this direct appeal from the trial court’s order refusing to hold plaintiff in contempt must be dismissed as we are without jurisdiction to entertain it. See OCGA § 5-6-34 (b); McDonald v. McDonald, 244 Ga. 453 (260 SE2d 853); Fulford v. Fulford, 225 Ga. 510 (170 SE2d 27); Commercial Bank v. Simmons, 157 Ga. App. 391 (278 SE2d 53).

Appeal dismissed.

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


author: Benham, Judge.

text:
    A89A0764.
    HOWARD v. THE STATE.
    (382 SE2d 159)
   Benham, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by selling a piece of “rock” cocaine to the captain of the Fitzgerald, Georgia, police department. Appellant maintains that the evidence presented at trial is not sufficient to support a conviction, and contends that two of the trial court’s rulings were erroneous.

1. The captain of the Fitzgerald police department testified that he was driving down a Moultrie, Georgia, city street while working undercover as a drug buyer. A man he identified as appellant signaled him to pull over, whereupon the officer purchased what was later identified as a piece of “rock” cocaine. Despite appellant’s protestations that he knew the undercover officer and would not have sold cocaine to him, the evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred in refusing to excuse for cause a juror related to the prosecutor. The State argues that the error, if any, was harmless since appellant failed to exercise all his peremptory challenges. However, the Georgia Supreme Court abandoned the rule espoused by the State and held that a defendant’s “failure to exhaust his peremptory strikes before the twelfth juror was impaneled does not render the error [the trial court’s refusal to strike an unqualified juror] harmless.” Harris v. State, 255 Ga. 464 (2) (339 SE2d 712) (1986). We therefore turn to the merits of appellant’s enumeration. Day v. State, 188 Ga. App. 648 (4) (374 SE2d 87) (1988).

During voir dire, a member of the venire stated she was a third cousin of the man who swore out the affidavit for the warrant for appellant’s arrest on this charge. The trial court ruled the relationship was not within the prohibited degree of consanguinity and refused to dismiss the juror for cause. The woman served on the jury that convicted appellant.

OCGA § 15-12-163 requires that a juror “shall be set aside for cause” if “he is so near of kin to the prosecutor, the accused, or the victim as to disqualify him by law from serving on the jury.” “One who instigates prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued ... is a prosecutor. [Cits.]” Ethridge v. State, 164 Ga. 53 (2) (137 SE 784) (1927). “All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law. . . .” OCGA § 15-12-135 (a). “The civil law is computed by counting from one of the persons up to the common ancestor, and then down again to the other person.” Williams v. State, 206 Ga. 107 (2) (55 SE2d 589) (1949). “[T]he correct method of computation is to count the ‘steps’ or generations from one ancestor to the next counting each ‘step’ or generation as one degree, and not to count each ancestor as a degree. If the sum is within the sixth degree, the juror is disqualified to serve in the matter. . . . [T]hird cousins [are] related in the sixth degree, a prohibited degree under [OCGA § 15-12-135]. [Cits.]” Eaton v. Grindle, 236 Ga. 324, 325 (223 SE2d 670) (1976). See Smith v. State, 2 Ga. App. 574, 576 (59 SE 311) (1907). Since the juror and the prosecutor were related within a prohibited degree, the juror should have been dismissed for cause, and the trial court committed reversible error when it refused to disqualify the juror related to the prosecutor. Harris v. State, supra; Bass v. State, 183 Ga. App. 349 (358 SE2d 837) (1987).

3. Appellant claims he was denied his Sixth Amendment right to confrontation and his statutory right to a thorough and sifting cross-examination (OCGA § 24-9-64) when the trial court sustained the State’s objection to appellant’s attorney’s questioning of a police officer about the circumstances of appellant’s arrest. The objection was properly sustained since the officer testified he did not know when appellant was arrested and he was not present at appellant’s arrest. Furthermore, the next witness, the arresting officer, testified about the circumstances of appellant’s arrest. Thus, the jury did hear the evidence initially denied them by the trial court’s action. Appellant’s claim has no merit.

Decided April 28, 1989.

May & Horkan, Dwight H. May, for appellant.

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

Judgment reversed.

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


text:
    A89A0948.
    PAGE v. THE STATE.
    (382 SE2d 161)
   McMurray, Presiding Judge.

Defendant was convicted of three counts of armed robbery. Following the denial of his motion for a new trial, he appealed. Held:

In Count 1, defendant and co-defendants Taggart and Maddox were accused of taking the property of one Guernor Ramsey by use of a handgun. Ramsey did not testify at trial and there was no direct evidence that he was, in fact, the robbery victim.

Defendant contends the State failed to prove guilt beyond a reasonable doubt with regard to Count 1 of the indictment because the identity of the victim was not proven. (Defendant does not contend the evidence was insufficient to support the convictions upon Counts 2 and 3 of the indictment. Yet, he urges us to review independently the evidence supporting those counts.) In the absence of argument pointing to specific deficiencies in the State’s case, however, we will not undertake such a review. (See Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia.) In this regard, defendant argues that the State failed to prove the corpus delecti. We disagree.

Via the testimony of the co-defendants (and a woman who accompanied defendant and the co-defendants after the robbery), the State demonstrated that on the day in question defendant stood lookout while the co-defendants took the pants (and the contents thereof) of a man at gunpoint in the bathroom of a rest station on Interstate 85. This evidence was sufficient to enable a rational trier of fact to find defendant guilty of armed robbery beyond a reasonable doubt. See Stoe v. State, 187 Ga. App. 171, 173 (3) (369 SE2d 793). It was only necessary for the State to prove that, with intent to commit a theft, the property of another was taken by use of an offensive weapon. McKisic v. State, 238 Ga. 644, 645 (2), 646 (234 SE2d 908); OCGA § 16-8-41. It was not incumbent upon the State to prove the identity of the victim in order to convict defendant of armed robbery. McKisic v. State, supra.

Decided April 28, 1989.

John D. McCord III, for appellant.

Thomas C. Lawler III, District Attorney, Dan W. Mayfield, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A89A1182.
    THOMAS v. GRISSOM.
    (383 SE2d 907)
    Decided, April 28, 1989.

      James White, Morris L. Richman, for appellant.

      Harry W. Bassler, Philip G. Pompilio, for appellee.
   McMurray, Presiding Judge.

Plaintiff Thomas obtained a judgment against defendant Grissom in an action for damages arising from a motor vehicle collision. Subsequently, plaintiff instituted a garnishment action and named as garnishee, Safeway Insurance Company, the insurer of defendant Grissom’s automobile. The garnishee’s answer stated that it had no property of the defendant in its possession. The plaintiff traversed the garnishee’s answer and the garnishee filed its motion for summary judgment along with supporting evidence. Plaintiff appeals from the grant of the garnishee’s motion for summary judgment against plaintiff. Held:

“ ‘OCGA § 5-6-35 (a) (4) provides that in cases involving garnishment, except for all judgments or orders granting or refusing applications for attachment against fraudulent debtors which are directly appealable under OCGA § 5-6-34 (a) (5) (such judgments or orders are not in issue here), an application for appeal must be taken. Inasmuch as [plaintiff] has failed to obtain an order of this court permitting the filing of an appeal pursuant to OCGA § 5-6-35 (a) (4), the appeal must be dismissed. (Cit.)’ Murdock v. Bank of America &c., 177 Ga. App. 409, 410 (339 SE2d 392) (1985).” Wallace v. Saks Fifth Ave., 180 Ga. App. 679 (350 SE2d 308).

Appeal dismissed.

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


author: Banke, Presiding Judge.

text:
    A89A0745.
    RAYSOR v. THE STATE.
    (382 SE2d 162)
   Banke, Presiding Judge.

The appellant was found guilty of kidnapping, burglary, and aggravated assault based on a course of conduct directed against his estranged wife. In connection with the same events which gave rise to these charges, he was also charged with financial transaction card fraud, rape, robbery by intimidation, a second count of kidnapping, and two counts of false imprisonment; however, the trial court directed a verdict in his favor on one of the false imprisonment charges, and the jury found him not guilty on all the remaining charges. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in refusing either to rebuke the state’s attorney in the presence of the jury or to declare a mistrial based on the following exchange which occurred while the state’s attorney was examining the appellant’s half-brother, assertedly while the attorney was looking at a copy of the appellant’s FBI “rap sheet”: Q: “Is your name Dexter Charles Turner?” A: “Yes.” Q: “Were you in Waco, Texas in 1974?” A: “No, sir.” Q: “Do you know whether or not your brother used your name back in 1974?” A: “I have heard —”

In response to the appellant’s objection to this line of questioning, the trial court instructed the jury as follows: “Members of the jury, the court needed to take up a matter outside of your presence, and having done that let me instruct you that the last two questions and the answers to those questions, whether the witness had been in Waco, Texas in 1974 or whether the defendant had ever used the . . . witness’ name, are irrelevant in this matter and have nothing to do with the trial of this case and so you should not consider even those questions that were asked or the answers that were given in response to those two questions. Just ignore that and wipe that from your minds and give no consideration to the questions or answers given.”

“Where the instruction by the court to the jury to disregard the remarks was full, it in effect amounts to a rebuke of counsel. (Cits.)” Collier v. State, 156 Ga. App. 413, 414 (274 SE2d 780) (1980). Noting that neither the questions at issue nor the witness’s answers to them revealed any specific instances of prior criminal misconduct on the part of the appellant and that the jury acquitted the appellant of most of the charges against him, we have no hesitancy in concluding that the court’s instructions were sufficient to cure whatever prejudicial effect the questions might have had, with the result that the court did not abuse its discretion in refusing to grant a mistrial. See also Roberson v. State, 157 Ga. App. 60 (1) (276 SE2d 114) (1981).

2. The appellant contends that, with respect to the kidnapping charge of which he was convicted, the trial court erred in refusing to charge on false imprisonment as a lesser included offense. The essential difference between the two offenses is that kidnapping involves the additional element of asportation. See OCGA §§ 16-5-40 (a); 16-5-41 (a). The appellant’s defense to the kidnapping charge was that the victim had accompanied him voluntarily. If believed, his testimony to this effect would have warranted an acquittal of the lesser as well as the greater offense, with the result that there was no evidentiary basis for the requested instruction. Accord Awtrey v. State, 175 Ga. App. 148, 151 (3) (332 SE2d 896) (1985). We reject as too unreasonable to warrant serious consideration the appellant’s contention that the jury might have found him guilty of the lesser offense based on a determination that the victim had accompanied him voluntarily during those periods when he was transporting her and had wished to leave his company only during an intervening period when he was beating but not transporting her.

Decided May 1, 1989.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0659.
    ROUNDTREE v. THE STATE.
    (382 SE2d 173)
   McMurray, Presiding Judge.

Defendant was convicted of theft by taking (of property with a value exceeding $500). He appeals, contending the State failed to prove that the value of the stolen property exceeded $500. Held:

Three items were stolen from the victim’s house: a television set, a microwave oven and a coffeemaker. There was evidence that the microwave oven and the coffeemaker were purchased approximately four months before the theft occurred, were in good condition and had been given to the victim as Christmas gifts; that the microwave oven had been used two or three times and the coffeemaker had never been used; and, that the microwave oven cost $489.95 and the coffeemaker cost $79.95. With regard to the television set, the victim testified that it was purchased five or six years previously for $500; that it was a 19" color television set and was in good working order.

Although there was no direct testimony concerning the actual value of the stolen property, we find the circumstantial evidence sufficient to enable the jury to determine that the value of the stolen property exceeded $500. Ford v. State, 183 Ga. App. 566, 569 (3) (359 SE2d 435). After all, the jury was aware of the market value of such “everyday objects” as a television set, a microwave oven and a coffeemaker. See Atlantic Coast Line R. Co. v. Clements, 92 Ga. App. 451, 455 (2) (88 SE2d 809). See also Ford v. State, 183 Ga. App. 566, supra; Moore v. State, 171 Ga. App. 911 (2), 912 (321 SE2d 413). The jury’s awareness, coupled with evidence concerning the cost, time of purchase, and condition of the stolen property, was sufficient to authorize a conviction for theft by taking (of property with a value exceeding $500). Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict of acquittal and in imposing a felony sentence.

Decided May 3, 1989.

M. E. Thompson, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A0783.
    BARNES v. THE STATE.
    (382 SE2d 164)
   Sognier, Judge.

Gary Dean Barnes was convicted of kidnapping and he appeals.

Construing the evidence to support the verdict, the record reveals that upon exiting a shopping mall in Dalton on December 24, 1987, appellant was stopped by a Dalton police officer and asked to remain so that he could be viewed by a woman who had been accosted in the mall earlier. Appellant complied, and another officer arrived with the alleged victim and two witnesses. Each identified appellant positively as the man who had accosted the victim earlier, and appellant was arrested.

At trial, the victim testified that on December 24, 1987, while she was working at the mall she left her job to go to the rest room. As she left the rest room she was stopped by a man who told her she was wanted by mall security, and she voluntarily accompanied him down a corridor to a maintenance door. The man knocked on the door and, receiving no answer, grabbed the victim by her hair and dragged her further down the hallway and out another door. She resisted, shouting, and was heard by two witnesses, who opened the door and observed appellant holding the victim by the hair. They screamed and appellant released the victim and walked away. The victim described her assailant as wearing gold wire-rim glasses, a blue plaid shirt, and blue jeans. When apprehended, appellant was wearing a brown plaid shirt and blue jeans, and his glasses had silver frames.

Ann Wheat, Director of the psychiatric unit at Hamilton Medical Center where appellant was employed in maintenance and security, testified over objection that on November 20,1987 she received a telephone call at home requesting her presence at the hospital because of an emergency. Although the caller identified himself as hospital security personnel, Wheat testified that she recognized the caller’s voice as belonging to appellant, and refused to go to the hospital.

Appellant denied accosting the victim or seeing her prior to the showup. He also denied calling Wheat.

1. Appellant contends the trial court erred by admitting Wheat’s testimony as evidence of a similar transaction. “Before evidence of [similar transactions] is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the [similar transaction]. Second, there must be sufficient similarity or connection between the independent [transaction] and the offense charged, that proof of the former tends to prove the latter. [Cits.]” French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). Although there was evidence that appellant telephoned Wheat, appellant argues that the Wheat incident was not sufficiently similar to meet this test, and that therefore the trial court should have excluded this evidence. See Larkins v. State, 230 Ga. 418, 420-421 (197 SE2d 367) (1973).

We cannot agree with appellant that the relevancy of the telephone call to Wheat to the mall incident is “so doubtful that the connection between them . . . cannot be clearly perceived.” Id. at 420. Although as appellant points out, there are certain differences, the unique nature of the pretext used was similar. In both cases, institutional security was used as a lure, a similarity which made the telephone call relevant to the issue of identity. Other similarities include appellant’s employment in security at the hospital and his former employment in security at a store in the mall; that both intended victims were female; that both incidents occurred within a month of each other; and that appellant was identified as the perpetrator in both cases.

“A defendant’s guilt ‘may not be proved by showing the commission of other crimes to prove that the accused has a criminal nature.’ [Cit.] However, evidence of other . . . acts of the defendant may be admitted if it ‘ “is substantially relevant for some other purpose than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character ....’” [Cit.] . . . ‘The ultimate issue in determining the admissibility of evidence of [similar transactions] is not mere similarity but relevance to the issues in the trial of the case.’ [Cit.]” Felker v. State, 252 Ga. 351, 359 (1) (a) (314 SE2d 621) (1984). The Wheat phone call evidence was relevant to the issue of identity, and we find that the trial court properly admitted it. See generally Sultenfuss v. State, 185 Ga. App. 47, 48-49 (2) (363 SE2d 337) (1987).

Decided May 3, 1989.

William P. Slack, for appellant.

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

2. Appellant also enumerates as error the trial court’s charge to the jury on the evidence of a similar transaction because the trial court instructed the jury that it was to consider the similar transaction only for the purpose of illustrating appellant’s state of mind, whereas the evidence was admitted into evidence as bearing on the issue of identity. We agree with appellant that the portion of the charge to which he objects, taken alone, is improper. However, considering the charge as a whole, we conclude that the trial court gave the jury a proper instruction. The trial court instructed the jury generally that appellant was not on trial for any other offense, and “any evidence . . . with reference to any other alleged offense ... is admitted for . . . your consideration solely and only under the provision of law where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme and course of conduct, identity or other matters dependent upon a person’s state of mind are involved as material elements in the offense for which he is on trial.” The trial court then specifically charged the jury that if they believed appellant had engaged in the similar transaction, they were to consider that transaction “solely with reference to the mental state, identity or intent of [appellant] insofar as the same is applicable to or refers to or illustrates the charge contained in the Bill of Indictment in this case and for no other purpose.” This was a correct statement of the law and we find no error in the charge as a whole. Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A0894.
    WILTSHIRE et al. v. THE STATE.
    (382 SE2d 166)
   Deen, Presiding Judge.

Wayne Labron Cox and Anthony Wiltshire were convicted of trafficking in cocaine. On appeal they claim that trial counsel was ineffective, and that the trial court erred in its charge on constructive possession.

Decided May 3, 1989.

Murray M. Silver, for appellants.

Lewis R. Slaton, District Attorney, Linda S. Finley, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

1. “There is a strong presumption that representation has been effective. [Cit.] Errors in judgment and tactical errors do not establish ineffective assistance [of counsel]. [Cit.]” Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485) (1986). The effectiveness of counsel is not determined by looking at isolated trial errors, but rather by an examination of the totality of the circumstances. Dansby v. State, 165 Ga. App. 41, 43 (299 SE2d 579) (1983).

We have reviewed the entire record and transcript and find that trial counsel rendered reasonably effective assistance by cross-examining witnesses, making objections and presenting witnesses for the defense. There was no necessity for filing a motion to suppress as contended by appellants because the evidence was seized from an automobile which did not belong to either of them and it was in plain view. Whether to present additional defense witnesses was a trial tactic. Appellants do not say what additional jury charges should have been requested and the transcript shows that the court gave a full and complete charge. Failure to move for a directed verdict was not error because the State made out a prima facie case.

To justify a reversal for ineffective assistance of counsel, appellants must show: (1) counsel’s performance was not reasonably effective, and (2) that the outcome of the trial would have been different but for counsel’s unprofessional efforts. Brogdon v. State, 255 Ga. 64, 67 (335 SE2d 383) (1985). Appellants have not met this test.

2. OCGA § 16-13-31 (a) required “actual” possession of cocaine prior to March 28, 1988. In 1988, the Georgia Legislature deleted the word “actual” from the statute and this version became effective on March 28, 1988. The crime in question was committed on May 6, 1988. The trial court therefore did not err in charging on constructive possession.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0919.
    BETTS v. THE STATE.
    (382 SE2d 172)
   Deen, Presiding Judge.

David E. Betts brings this appeal from an order of the trial court entered on December 5, 1988, which ordered him to pay restitution in the amount of $70,050 as a part of his sentences in his criminal convictions. He contends that the trial court erred in not vacating the sentences, barring further proceedings and in not allowing him to withdraw his guilty pleas as to certain specified counts in the indictments under which he was charged and to which he entered guilty pleas. Held:

Decided May 3, 1989.

David Betts, pro se.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, Assistant District Attorneys, for appellee.

As the trial court has made no rulings upon appellant’s motions to vacate his sentences, to bar further proceedings, or, in the alternative, to allow him to withdraw his guilty pleas, there is nothing for this court to review upon appeal. No question is presented to this court unless the enumeration of errors and record clearly show that the question was presented to and passed on by the trial court. Garland v. State, 101 Ga. App. 395, 398 (114 SE2d 176) (1960). “Where there is no final ruling upon an issue by the trial court, there is nothing for the appellate court to pass upon [cit.], for this court is a court for the correction of errors made in the trial court.” Blakely & Son v. Humphreys, 148 Ga. App. 281, 283 (250 SE2d 826) (1978).

An examination of the transcript from the restitution hearing reveals that the trial court stated that it would not rule upon Betts’ motions at that time and informed him that a hearing on the motions would be set up for a later time. Accordingly, these issues are not before this court, and his appeal must be dismissed.

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A0929.
    STARLEY v. THE STATE.
    (382 SE2d 167)
   Deen, Presiding Judge.

Acting on a series of three tips from an informant who had previously supplied reliable information, Wilkinson County law enforcement officers apprehended appellant Starley while he was sitting in his 1981 blue Oldsmobile, on the evening of the day the tips were received. Examination of the vehicle revealed the presence of more than one ounce of marijuana, and Starley was charged with possession of marijuana with intent to distribute. He moved to suppress the evidence on the grounds that the information relied on by law enforcement officials was double hearsay and that there were no exigent circumstances justifying the warrantless search of his automobile. After a hearing the trial court denied the motion, and Starley sought and received a certificate of immediate review. This court denied his interlocutory appeal as untimely, and, final judgment having subsequently been entered, he now appeals from that judgment, enumerating as error (1) the admittance into evidence of the marijuana found in his automobile and (2) the denial of his motion to suppress. Held:

Decided May 3, 1989.

Walter S. Scott, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

1. Appellant attempts to characterize the information supplied by the informant as “double hearsay.” Examination of the transcript reveals unmistakably that the informant not only saw the marijuana herself but learned of Starley’s distribution of the substance when her son, who had just borrowed money from her, came back carrying the marijuana and asking to borrow additional cash with which to complete payment to Starley. The informant, who had previously supplied verifiable information which had led to convictions of other persons, was thus in possession of personal, first-hand information as to appellant’s activities on the day on which these incidents occurred and on which, in response to this information, law enforcement officers effected the arrest. Therefore, by definition, the information was not hearsay, and citations to such cases as United States v. Ventresca, 380 U. S. 102 (85 SC 741, 13 LE2d 684) (1965), are inapposite. We find no merit in this enumeration.

2. In Pittman v. State, 162 Ga. App. 51 (289 SE2d 531) (1982), this court held at 52, that in circumstances analogous to those sub judice, “[p]robable cause for the search was sufficiently established by the evidence of the informant’s reliability, the detailed nature of his tip, and the corroboration of [the] information by police.” Accord McKinney v. State, 184 Ga. App. 607, 609 (362 SE2d 65) (1987). In McKinney v. State, supra, this court held at 610 that, where there was probable cause to suspect that an automobile contained contraband, a warrantless search was justified, even in the absence of the traditional “exigent circumstances” — and even after the driver had been arrested and the keys taken from him. A fortiori, then, when as in the instant case the suspect was known to be driving the automobile from town to town, a warrantless search was justified. Appellant’s second enumeration is likewise devoid of merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0947.
    CARVER v. THE STATE.
    (382 SE2d 169)
   Deen, Presiding Judge.

James Phillip Carver was convicted of burglary and arson in the first degree. The evidence showed that the home of Carver’s former wife was broken into and a fire was set in the master bedroom. A picture of Carver and his former wife was removed from its frame and replaced with a 1986 receipt for their son’s class field trip to an amusement park. (Mrs. Carver had riot seen it since 1986). Several bottles of alcohol had been removed from a kitchen cabinet, $40 in cash was missing from a jewelry box in the children’s bedroom, and the locked rear patio door had been pried open. Various items, including a television set, video cassette recorder, clothing, etc., had been placed on the bed before the fire was started and various pieces of bedroom furniture had been placed next to the bed.

Interviews with the neighbors were conducted by the police, and the neighbors testified that appellant was seen leaving the area immediately before the fire started. Other witnesses testified that they saw him later in the evening when he reappeared and began questioning them about the fire. One neighbor testified that he appeared to be intoxicated.

On appeal Carver claims that the trial court erred in admitting into evidence testimony about a similar transaction, that the court erred in denying his motion for a directed verdict, and that the evidence was insufficient to sustain the verdict.

1. Evidence was admitted to show that on the date that their divorce was final, Carver went to his wife’s home in Tennessee and became involved in an argument with her because he refused to accept the fact that she had divorced him. He removed her bed and headboard from the bedroom, placed it in the front yard and set fire to it. He also threatened her with physical harm. He was charged with and entered a guilty plea to malicious mischief. Mrs. Carver moved to Georgia, but did not inform appellant of her whereabouts. Approximately two weeks before the fire, he discovered where she was living and telephoned her. He made obscene and abusive sexual remarks about the man with whom she was living.

At trial he was identified as the man who was seen running from Mrs. Carver’s home about the time that the fire started and as the man who appeared in the evening asking questions. Fire investigators testified that the fire had been intentionally started on the bed. The evidence further showed that appellant was angry and distraught over his divorce. Each time, after a dispute with his former wife, he retaliated by burning her bed.

The trial court admitted evidence of the similar transaction to show bent of mind and the jury was instructed accordingly. We find no error. The State proved that the accused was the perpetrator of the independent crime, and there was sufficient similarity between the independent crime and the offense charged. Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270) (1987).

Decided May 3, 1989.

Clark & McLaughlin, Joseph M. McLaughlin, for appellant.

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

2. Appellant’s motion for a directed verdict was properly denied. “If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” Castillo v. State, 166 Ga. App. 817, 819 (305 SE2d 629) (1983).

3. Applying the test set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find that the evidence was sufficient to support the conviction.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Deem, Presiding Judge.

text:
    A89A1045.
    JAMISON v. WEST et al.
    (382 SE2d 170)
   Deem, Presiding Judge.

This is the second appeal evolving from arbitration proceedings between Jamison and West in a contract dispute over Jamison’s architectural services. See West v. Jamison, 182 Ga. App. 565 (356 SE2d 659) (1987). “[T]he award was based upon the total [contract] fee of $36,000, plus a termination fee of $1,800, contractually provided interest at [1.5] percent for eight months in the amount of $3,979.59, and arbitration costs in the amount of $863.26 less the prepayment of $4,636.77 for additional services [for a total of] $38,006.08.” Id. at 566-567. This court affirmed the arbitrator’s award in part and reversed that portion awarding Jamison 100 percent of the agreed value of the services, since only 80 percent of those services had been performed. It was further held that the judgment could bear interest from the date of judgment only on the principal sum, not on the interest found to be due at the date of the judgment, and the case was remanded to the superior court for appropriate action consistent with the decision and the provisions of OCGA § 9-9-93 (d). Id. at 569.

The superior court issued a judgment on remittitur vacating and setting aside that part of the arbitration award previously entered pertaining to the award of 100 percent of the fee. It ordered the same arbitrator to rehear the case “upon the sole issue as to whether [Jami-son] should be awarded 100% of the fee for architectural services provided in the contract ... [in order to] determine the percentage of services performed and amend the award as necessary to effect the percentage of services performed. The Arbitrator shall also consider the question of whether or not any other portion of the award should be amended based solely upon his findings of the percentage of services performed, and the new award should reflect those changes, if any.” The judgment further decreed that the costs of the action be taxed to Jamison and that West recover $429.69 from him as expenses for the defense and appeal of the case.

The arbitration hearing was held as ordered, resulting in a second award to Jamison of $25,964 or 80 percent of the original contract amount, plus the five percent termination fee, less the prepaid amount and “interest on that amount at 1.5% per month from January 25, 1985, until the award is paid pursuant to . . . the contract.” West moved in superior court to vacate this award pursuant to OCGA § 9-9-93 (b) (3), contending that the arbitrator had overstepped the bounds of his authority in the content of the amended award, while Jamison filed a motion to confirm the award. Some months later the superior court, after review of the award and considering arguments of the parties, ratified and confirmed the second award of the arbitrator. However, it vacated that portion providing for payment of interest from January 25, 1985, “to the exten[t] that such award would, or could, be interpreted to provide for interest at such rate beyond the date of the arbitrator’s original award, October 3, 1985, on the ground that such an interpretation would be an overstepping by an arbitrator of authority.”

Jamison appeals, asserting that the judgment does not conform to the award or to the requirements of OCGA §§ 9-11-31 and 9-11-32. In particular, he complains that the superior court erred in (1) modifying the award to delete interest beyond the date of the original award and in not providing for pre-judgment and post-judgment interest; (2) in taxing costs against him in the judgment on remittitur and in taxing costs equally between the parties; and (3) in not amending the judgment to allow him to recover litigation expenses.

1. We note at the outset that the cited Code sections merely provide suggested drafting guides for preparing judgments, which deal with form rather than substance and in no way make appellant’s entitlement to interest or costs obligatory.

2. The arbitrator’s original award of contractually computed interest for a period of eight months was not disturbed and thus was affirmed in West v. Jamison, supra. That case also held that post-judgment interest at the rate of 12 percent was “inherent in the judgment” whether or not specifically mentioned by the superior court, as under OCGA § 7-4-12 “all judgments bear interest from date of rendition and it is immaterial that the verdict or judgment does not provide for future interest. [Cits.]” Id. at 569. Since the original award of eight months’ interest was not reversed or set aside on appeal it was conclusive between the parties. OCGA § 9-12-40. Furthermore, the sole issue to be determined on remand was whether Jamison should have been awarded 100 percent of the fee for the architectural services performed; thus the arbitrator was without authority to revise the award of pre-judgment interest.

Decided May 3, 1989.

Jim Jamison, pro se.

C. George Newbern, for appellees.

3. The superior court has discretion under OCGA § 9-9-97 (b) to “reduce or disallow any fees or expenses it finds excessive or may allocate them as justice requires.” Having been successful in his claim on appeal that the arbitrator overstepped his authority in awarding Jamison 100 percent of his fee, West was entitled to a judgment for the amount of costs in the appellate court against the appellee, as provided by OCGA § 5-6-5, and “the superior court had original and concurrent jurisdiction to pass upon the matter.” Sweat v. Ehrensperger, 100 Ga. App. 58, 59 (109 SE2d 889) (1959). See also Stone Mtn. Mem. Assn. v. Stone Mtn. Scenic R., 232 Ga. 92 (1) (205 SE2d 293) (1974). The superior court was also fully authorized by OCGA § 9-9-97 (b) to allocate any costs by ordering them to be taxed equally between the parties. Accord Gold Kist v. Williams, 174 Ga. App. 849 (4) (332 SE2d 22) (1985), affirming the trial court’s discretion to split costs equally between the parties under OCGA § 9-11-54 (d).

4. Jamison’s recovery of expenses of litigation for “bad faith” pursuant to OCGA § 13-6-11 is precluded by his failure to initiate this issue by special pleading and prayer therefor. His demand for such damages was first raised by a “Petition for Amendment to Judgment” filed subsequent to the rendition of final judgment. Under the statute, it is a matter for jury determination as to whether such damages are warranted. See Jackson v. Brinegar, Inc., 165 Ga. App. 432 (2) (301 SE2d 493) (1983). Thus the question of bad faith could and should have been properly pleaded and considered in the first arbitration hearing. OCGA § 9-12-40. Cf. Brookins v. Brookins, 257 Ga. 205 (1) (357 SE2d 77) (1987). We find no reason to reverse the judgment for any of the reasons assigned.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0051.
    LAW v. LOWE et al.
    (382 SE2d 118)
   McMurray, Presiding Judge.

Plaintiff James A. Law brought suit against R. Wayne Lowe, Betty J. Lowe and Ronald L. Smith “in their capacity as Members of the Heritage Hills Architectural Control Committee.” It was alleged that plaintiff owns a lot in the Heritage Hills Subdivision in Houston County, Georgia; that certain protective covenants running with the land cover the lots of the subdivision; that the covenants provide that the Architectural Control Committee must approve or disapprove the plans and specifications for all buildings erected on any lot in the subdivision; that the Architectural Control Committee negligently approved the erection of “a non-conforming, inferior-quality building” on a lot in the subdivision; and that as a direct and proximate result of the Architectural Control Committee’s negligence, plaintiff suffered damage “due to the devaluation and diminution of [his] property value.”

Defendants answered the complaint and denied any liability whatsoever. Additionally, they set forth a failure to state a claim (OCGA § 9-11-12 (b) (6)) defense.

Following discovery, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The superior court considered the complaint, aliunde matters (including the protective covenants themselves) and the arguments of counsel and it granted defendants’ motions to dismiss. Plaintiff appealed. Held:

1. The motion to dismiss the appeal is denied.

2. In ruling against plaintiff, the superior court relied upon matters dehors the pleadings. Accordingly, the motions to dismiss were converted to motions for summary judgment. Bragg v. Sirockman, 169 Ga. App. 643 (1) (314 SE2d 478); OCGA § 9-11-12 (b).

3. In pertinent part, the protective covenant provides: “Enforcement shall be by proceedings in equity to restrain or enjoin any person or persons violating or attempting to violate any covenant. Enforcement shall not be in the form of an action at law for damages.” Thus, by its own terms the protective covenant prescribes the relief available to plaintiff — it is equitable, injunctive relief. (In fact, plaintiff previously brought an equitable action against defendants. In that action, the superior court reviewed the building plans in question and concluded that they met the requirements of the restrictive covenants.)

Since the protective covenant prescribes an equitable remedy exclusively, plaintiff’s action at law cannot stand. Why? Because plaintiff cannot simultaneously seek the benefits and reject the unambiguous burdens of the protective covenant. If plaintiff wants to enforce the protective covenant, he must do so according to its clear terms. See Atlanta, Knoxville &c. R. Co. v. McKinney, 124 Ga. 929 (2) (53 SE 701); A-Larms, Inc. v. Alarms &c. Mfg. Co., 165 Ga. App. 382, 385 (2), 386 (300 SE2d 311). See also Anno., Contractual Remedy — Exclusiveness, 84 ALR2d 322 (1962).

Decided April 12, 1989

Rehearing denied May 4, 1989

Theron M. Moore, for appellant.

Martin, Snow, Grant & Napier, Walter E. King III, for appellees.

Plaintiff contends that he is not bound by the enforcement term of the protective covenant. In this regard, he contends his action stems not from the protective covenant but from the negligence of the Architectural Control Committee. We disagree. Any duty which the Architectural Control Committee owes to plaintiff stems not from thin air but from the provisions of the protective covenant. Thus, plaintiff’s negligence action can only be viewed as an attempt to enforce the protective covenant (albeit retroactively); and the language of the covenant itself bars the bringing of such an action. See generally Key Capital v. Avery, 259 Ga. 133 (376 SE2d 886).

Judgment affirmed.

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


text:
    A89A0677.
    BOYD v. THE STATE.
    (383 SE2d 906)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with abandoning his two minor children, OCGA § 19-10-1. Defendant filed a motion to dismiss the accusation, asserting the general grounds. The trial court denied the motion to dismiss and this direct appeal followed. Held:

The overruling of defendant’s motion to dismiss the accusation, which leaves the case pending for trial, is not a final judgment from which appeal can be taken, absent a certificate of immediate review. OCGA § 5-6-34; Partain v. State, 138 Ga. App. 171, 172 (225 SE2d 736). Consequently, since defendant has not complied with the interlocutory appeal procedure prescribed by OCGA § 5-6-34 (b), this appeal must be dismissed.

Appeal dismissed.

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

Decided April 10, 1989

Rehearing denied May 4, 1989

Jimmy A. Boyd, pro se.

Gerald N. Blaney, Jr., Solicitor, for appellee.


author: Birdsong, Judge.

text:
    A89A0014.
    ARNOLD et al. v. THE STATE.
    (382 SE2d 174)
   Birdsong, Judge.

Albert Kennedy Arnold, Jr., and Dorothy Smith Arnold appeal their conviction for trafficking in cocaine. They contend they were entitled to a directed verdict of acquittal on these grounds: “that there was no evidence to refute appellants’ testimony that the cocaine and drugs were possessed by [two other persons] who had access to the premises involved . . . [and] the evidence was unrefuted that appellants had no intention or desire to exercise any dominion or control over the contraband.” Held:

Appellants’ evidence generally showed they were an “older couple” who had never been in trouble with the law, and had often traveled in pursuit of Mr. Arnold’s career as a pipe fitter. They attempted to show they had come from Florida (their permanent home) and bought a house in Augusta, Ga., so as to set up a painting contracting business there with Mr. Arnold’s brother. However, the brother, who lived in Florida, became ill and plans for the Augusta painting business faltered. In the meantime, Mr. and Mrs. Arnold met one Janet Melton and her boyfriend, Rick Barker, at a July 4 party. Although Barker did not seem to be a particularly attractive personality, the Arnolds invited Janet Melton and Rick Barker to live in the Augusta house from the date of sale closing (August 29, 1986) until the Arnolds were ready to move in. They were still traveling frequently between Florida and Georgia, attending to various business and family matters. They were in the house the weekend before the raid. At one point Rick Barker’s bizarre behavior caused appellants to ask him to leave. He and Janet Melton left, but a few days later Janet returned. She had keys to the appellants’ truck, and apparently had free reign in the house, using the master bedroom because it had its own bathroom and was the only room completely furnished. Rick Barker returned to the house and asked to leave some “stuff,” which turned out to be a machine gun. The gun was immediately removed at the Arnolds’ insistence; next day, the Arnolds returned to Florida.

Appellants had been in Augusta on Saturday and Sunday before the search warrant raid on Thursday afternoon, October 9, 1986. They went to Florida expecting to return the next weekend, but then decided to return on Wednesday, October 8. They left Florida at 6:00 p.m. and arrived in Augusta at 3:00 a.m. Thursday, unexpected by Janet Melton. They found their house in great disarray and found a large amount of cocaine and “related matter” in the master bathroom. Mrs. Arnold told Janet Melton to take the cocaine and get out. Melton went to look for Rick Barker and returned alone about 9:00 a.m., appearing “scared.” Mrs. Arnold avowed she would flush the cocaine down the toilet but Melton begged her not to do so, for then she and Rick Barker “might both be killed. She said that I didn’t know . . . what kind of people they were dealing with. That if they didn’t have the cocaine or the money that somebody was going to get hurt. ... I thought about [calling the police but] I didn’t do it because I didn’t want Janet to get in trouble and I didn’t want to get in trouble either.” Again, Mrs. Arnold told Melton to “get the stuff out of there,” but Melton “left to look for Rick again. Somebody stopped by to visit [Melton] ... he went upstairs with Janet. I don’t know who it was.” (Evidently, it was the confidential informant.)

After Melton left to find Rick Barker, appellants called Larry Vickery, a friend, to come help. They did this “[b]ecause Rick Barker is nuts. We were afraid he might come in with that damn machine gun. He had been bragging the Saturday before about slashing his wife’s new husband’s tires. Poked holes in all the sides of them. We didn’t know what he might do to us, to the car, or to anybody.”

Appellants had helped Larry Vickery through a crisis in the past; he left his wife’s home in Waynesboro and went to Augusta. He and the Arnolds then went to the shopping mall, “[t]o get out of the house.” They walked and talked about an hour-and-a-half. Then they went to the grocery store. When they returned to their house, it was about 3:00 p.m.; “None of the stuff had been moved.” Mrs. Arnold was putting groceries away when Janet Melton returned without Rick Barker, and she again told Melton to get out. About an hour later, when the police arrived with a search warrant, Mrs. Arnold was “[unloading groceries and getting ready to cook a steak.” Rick Barker was never arrested.

Appellants contend that although they “were aware there was cocaine in their bathroom, their only wish regarding it was that it be taken away without anyone getting killed, hurt or in trouble with the law. There was no desire to exercise any dominion or control over it.” Appellants contend they were entitled to a directed verdict of acquittal, particularly since Melton and Barker had equal access to the house; and that no head-of-household presumption applies because the appellants’ testimony was unrefuted, for the State never called its witness, Janet Melton, to contradict it.

OCGA § 17-9-1 (a) provides: “Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions therefrom shall demand a verdict of acquittal or ‘not guilty’ . . . the court may direct the verdict of acquittal.” (Emphasis supplied.) Appellants’ credibility was for the jury to decide. It cannot be said that merely because the State did not call Janet Melton to contradict or refute the appellants’ testimony, “the unrefuted evidence” demands a verdict of acquittal. There is a great deal of evidence in the case which, with all reasonable deductions therefrom, refutes appellants’ insistence upon their innocence.

Viewing the evidence in favor of the verdict (see Powers v. State, 150 Ga. App. 25 (256 SE2d 637)), we conclude appellants’ testimony regarding the painting business they intended to start in Augusta was not reasonably borne out. The evidence and exhibits at trial show clearly that a large amount of “white powder,” or cocaine, and paraphernalia including scales and “baggies,” were found in plain view throughout the house, and almost in every room. In several places, including the master bedside table, large sums of cash were found; three thousand dollars was found in a coat pocket in a closet. At least eight guns were found. Photo exhibits depict scenes on tables, chairs, and counters of such an array and activity commonly associated with cocaine sale and use, including large sums of cash, that, as was said in the verdict, it is unreasonable to believe the appellants could have been unaware of this activity, or that it could be hidden from them, even though they did frequently go to Florida. With the admittedly unattractive presence of Rick Barker and his machine gun, and his “bizarre behavior” so plainly before them, it is unreasonable to believe they did not notice a single flea on the dog.

Moreover it is unreasonable to conclude that, (in addition to these hints of unsavory character), this vast deposit of drugs, paraphernalia, guns and ammunition and thousands of dollars in cash, arrayed throughout the house, bespoke a pursuit of drug sales and related activities on such a large scale as could not reasonably have remained hidden from the appellants, or would not reasonably have ceased altogether when they were at home. And it evidently beggared the jury’s belief that after they came home and found this trove, the appellants, though being in the direct fear that someone would be killed imminently, did nothing towards calling the police; but instead, because Rick Barker was “nuts,” they were afraid he “might come in with a machine gun,” and they did not know “what he might do to us . . . or to anybody,” they invited a friend to share this troubled environment. And, further, it does not seem entirely reasonable that when the friend arrived they merely visited the mall and the grocery store, and proceeded to unload groceries and cook a steak, as if this situation, of which they literally were afraid to death, did not exist, or would continue indefinitely.

Altogether, even without any presumption arising out of their ownership of the household, the evidence is such that reasonable jurors could rationally have found proof of appellants’ guilt of the crimes charged, beyond a reasonable doubt, under the standard laid down in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). That being so, it cannot possibly be said that the case should have been removed from the jury and the appellants set free because their testimony of innocence was “unrefuted.” Certainly it cannot be said that all the evidence and all reasonable deductions therefrom, demanded a verdict of acquittal pursuant to OCGA § 17-9-1 (a).

Decided May 4, 1989.

Richard E. Allen, for appellants.

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

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs in judgment only.


text:
    A89A0303.
    JACKSON v. THE STATE.
    (382 SE2d 177)
   Sognier, Judge.

Traypaniel Jackson was indicted for possession of cocaine with intent to distribute. After the trial court denied his motion to suppress, Jackson entered a plea of guilty, reserving his right to bring this appeal from the denial of his motion to suppress.

The evidence adduced at the hearing on the motion to suppress showed that on the afternoon of April 1, 1988, at about 2:30 p.m., Chief Jim Brooks and Major Robert Allen of the Macon Police Department were patrolling in an unmarked police car in an area known for drug transactions when they observed a pickup truck, occupied only by the driver, parked on the street. A second man was standing outside the truck on the driver’s side. The officers approached the truck, Brooks stopped the individual standing beside the truck, and after he was identified and a computer check revealed no warrants or violations, he was allowed to leave.

Meanwhile, Allen initiated his investigation of the driver, later identified as appellant. After appellant exited the vehicle, Allen determined that appellant’s driver’s license was current and valid, and the mobile computer revealed no warrants, violations, or “holds” on appellant. Although the computer check did reveal that appellant was on probation for a drug offense, a telephone check with appellant’s probation officer confirmed that there were no probation or other “holds” on appellant. When asked, appellant stated that the truck belonged to his uncle, and the computer showed it had not been reported stolen. Allen asked appellant two or three times if he would consent to a search of the truck, but appellant refused.

When Brooks approached the truck after completing his brief investigation of the other individual, he noticed what appeared to be a penny matchbox on the floor of the cab of the truck and some money on the seat. The officers radioed for help, and Lieutenant Ellis Harper and several others responded. Harper arrived about 3:00 p.m., and shortly thereafter Brooks left the scene. Allen reported to Harper that appellant had refused to consent to a search, and asked Harper to procure a search warrant. Harper left the scene, and proceeded to City Hall, where he had the search warrant affidavit typed and determined that appellant’s uncle was the owner of the truck. He then took the affidavit to a judge, who signed the warrant at 4:15, and at 4:20 Harper radioed Allen that the search warrant had been signed.

In the interim, officers had been detaining appellant at the scene, one officer on either side of appellant. After being held at the scene for approximately two hours, appellant attempted to leave, but was pursued, overtaken, and arrested. Pursuant to the search warrant, the vehicle was towed to the city crime lab. A search revealed two matchboxes containing 39 pieces of rock cocaine.

1. Appellant first contends his initial stop by the police was not founded on a specific, articulable suspicion as required by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). We do not agree. Brooks testified that the police “had received a tremendous number of calls and so forth about drug violations that were taking place” on the street on which appellant’s truck was stopped; the driver was engaged in conversation with a pedestrian, and as the officers approached in their unmarked vehicle, appellant immediately pulled his hands down and reached toward the floorboard as if to hide something. This constituted the observation of suspicious activity by appellant in an area known for drug transactions. Taken together, these observations constituted a founded suspicion sufficient to justify a brief investigatory stop. See State v. Purdy, 147 Ga. App. 340 (248 SE2d 683) (1978); Jones v. State, 156 Ga. App. 730 (275 SE2d 778) (1980).

2. Appellant next asserts that even if the circumstances justified a brief, investigatory stop, the unlawful detention of appellant for almost two hours while the police obtained a search warrant was unlawful. “The rationale of [Terry v. Ohio], supra, and its progeny allows investigating officers who possess articulable suspicion of criminal activity to detain a suspect for a limited period in order to identify the suspect, frisk him if necessary, and conduct limited questioning. [Cit.] Detention beyond that authorized by [Terry] is an arrest, and, to be constitutional, such an arrest must be supported by probable cause. [Cit.] Probable cause to arrest exists where, based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed. [Cit.]” Williams v. State, 251 Ga. 749, 792 (8) (a) (ii) (312 SE2d 40) (1983).

“An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be.” Clements v. State, 226 Ga. 66, 67 (2) (172 SE2d 600) (1970). Nothing could be clearer in this case than that appellant was not free to come and go as he pleased. Not only was he surrounded by police officers, but when he did try to leave he was pursued and captured. Nor can appellant’s detention for almost two hours be justified as a brief, investigatory stop. In Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978), this court found that “where detention exceeded 40 minutes, it tortures the English language to say it was a ‘brief’ stop or ‘momentary detention.’ ” Id. at 238-239 (3). While Radowick does not carry precedential value, having been decided with only two judges concurring fully, we have no difficulty in finding that the detention here, which was more than twice as long as the detention in Radowick, may not be characterized as a brief, investigatory stop. See also United States v. Place, 462 U. S. 696, 709-710 (103 SC 2637, 77 LE2d 110) (1983), where a 90 minute stop lacking probable cause was disapproved.

The question then becomes whether probable cause existed for the detention of appellant for almost two hours. The State carries the burden of showing a warrantless arrest was lawful, Bodiford v. State, 169 Ga. App. 760 (315 SE2d 274) (1984), and the existence of probable cause must be “measured by current knowledge, i.e., at the moment the arrest is made and not hindsight. [Cit.]” Lovell v. State, 178 Ga. App. 366, 367-368 (1) (343 SE2d 414) (1986). Thus, the fact that contraband was eventually found in appellant’s truck has no bearing on whether probable cause existed for the detention. Rather, it is the “seizure” of appellant and the truck prior to the discovery of the contraband which must be examined for the existence of probable cause.

The only suspicious fact known to the officers when they detained appellant and the truck was that appellant was present in an area in which many drug transactions take place. His truck was not stolen, he had committed no traffic violations, and he had a valid driver’s license which, when checked through the mobile police computer, showed appellant was not “wanted” by the police for anything. The only items in “plain view” in the truck were an ordinary penny matchbox and two pieces of U. S. currency. Although police officers testified at the motion hearing that sometimes drugs were hidden in matchboxes, they also testified that drugs were sometimes hidden in paper bags, other ordinary household items, and articles of clothing, and conceded that matchboxes could also contain matches. The observation of a paper bag, a garment, or a matchbox does not constitute probable cause to search a vehicle, and we cannot agree that under these circumstances probable cause existed to arrest appellant or seize the truck.

Decided May 4, 1989.

Stephen T. Maples, Gregory N. Crawford, for appellant.

Willis B. Sparks III, District Attorney, Samuel F. Greneker, Howard Z. Simms, Assistant District Attorneys, for appellee.

We do not agree with the State that even if appellant’s arrest was unlawful, it was harmless because no contraband was recovered from a search of appellant — but only from a search of the truck pursuant to a search warrant. We find this argument specious because the warrant was obtained almost two hours after both appellant and the truck were “seized” by restraining all freedom to come and go. We are mindful of the serious burden the proliferation of illegal drugs has placed on our society, and of the need for creative solutions needed to curb and eradicate this epidemic. However, “if illegal detention for an extended period of time, without prior probable cause, is not sufficient to exclude evidence obtained thereby, then police officers have been judicially licensed to illegally detain suspects, without probable cause, for extended periods of time, until the will of the suspect succumbs to the coercive effect of illegal police action. This court can not countenance illegal acts even though they achieve desired civic solutions.” Radowick, supra at 242. Accordingly, as no probable cause existed to detain appellant or the truck for almost two hours while a search warrant was obtained, appellant’s motion to suppress the “fruits” of the search of the truck should have been granted. See generally Whisnant v. State, 185 Ga. App. 51, 52-54 (2) (363 SE2d 341) (1987).

3. Appellant’s other enumerations of error are rendered moot by our decision in Division 2.

Judgment reversed.

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


text:
    A89A0812.
    HACKETT v. DAYTON HUDSON CORPORATION et al.
    (382 SE2d 180)
   McMurray, Presiding Judge.

This is a dog bite case. Plaintiff Hackett was an independent contractor in the business of hauling cardboard for scrap. On April 4, 1986, plaintiff arrived at Brandens, a retail store operated by defendant Dayton Hudson Corporation, to pick up a load of cardboard. Plaintiff backed his pickup truck to a door at the rear of the store. Then, plaintiff got out of the truck and used the steps to reach the truck bed. He had one foot on the tailgate of the truck and one foot on the steps when he was bitten by a dog.

The dog was owned by defendant Jackson, the General Manager of the Branden’s retail store. Defendant Jackson had brought the dog to work because he was having construction work done on his house and did not want to leave the dog at home. The dog was not taken inside the store, but instead, chained outside at the side of the building.

Following discovery, the trial court granted defendant Dayton Hudson Corporation’s motion for summary judgment. Plaintiff’s motion for summary judgment against both defendants was denied and plaintiff appealed. Held:

1. Plaintiff first enumerates as error the grant of summary judgment in favor of defendant Dayton Hudson Corporation. Insofar as plaintiffs action is predicated upon the doctrine of respondeat superior, we find no error in the grant of summary judgment in favor of the corporate defendant. The uncontroverted evidence is that the alleged negligence of defendant Jackson was not done within the scope and course of his employment. Defendant Jackson was not acting to further the business of his employer but to further his own personal and private needs. Under these circumstances the corporate defendant is not liable for its employee’s acts. Wittig v. Spa-Lady, 182 Ga. App. 689 (356 SE2d 665); Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (1) (345 SE2d 886); Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (2) (307 SE2d 129); Rubin v. Mikart, Inc., 167 Ga. App. 425 (306 SE2d 420).

Plaintiff also contends that he is entitled to a judgment against the corporate defendant predicated upon OCGA § 51-3-1, which provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” While the incident at issue did not occur on the premises leased by the corporate defendant, there is evidence that it occurred on the “approaches” to the premises as that term is defined in Todd v. F. W. Woolworth Co., 258 Ga. 194 (366 SE2d 674).

“It is the duty of one who invites members of the general public to come to his place of business to protect such customers or invitees from injury caused by misconduct of his own employees in the conduct and scope of his business, and from the misconduct of other persons who come upon the premises ... If the conduct of such employees outside of the scope of their employment, or of third persons or customers, is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury . . . This duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.” Great Atlantic & Pacific Tea Co. v. Cox, 51 Ga. App. 880 (1, 2, 3) (181 SE 788). The true ground of liability of an owner or occupant of property to an invitee is the proprietor’s superior knowledge of a condition that may subject the invitee to an unreasonable risk of harm. Phillips v. Lindsey, 184 Ga. App. 728 (362 SE2d 491); Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281).

In the case sub judice, there is uncontroverted evidence that defendant Jackson’s superiors with defendant Dayton Hudson Corporation had no knowledge that defendant Jackson had brought his dog to work on the date of the incident until after plaintiff was bitten, that employees of Dayton Hudson Corporation are not allowed to bring their dogs to work and that defendant Jackson was never given permission to bring his dog to work. Additionally, we note the uncontroverted evidence that defendant Jackson had never had any previous problem with the conduct of his dog and that as defendant Dayton Hudson Corporation was not the owner or keeper of the dog it cannot be held liable under OCGA § 51-2-7.

With regard to any claim under OCGA § 51-3-1, there is absolutely no evidence of any superior knowledge upon which to base a finding of defendant Dayton Hudson Corporation’s foreseeability of the incident which occurred. Therefore, summary judgment was also correctly granted to defendant Dayton Hudson Corporation under this theory of recovery. Stanger v. Cato, 182 Ga. App. 498, 499 (356 SE2d 97); Clark v. Carla Dress Co., 178 Ga. App. 157 (342 SE2d 468) (1986).

2. Plaintiff’s action against defendant Jackson is predicated upon OCGA § 51-2-7 which provides: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.”

Plaintiff contends that defendant Jackson’s dog was a vicious animal under OCGA § 51-2-7 by virtue of a leash law provision of “Cobb County Code Section 3-5-9, Control of Animals.” However, “the Cobb County Code” provision is not pleaded or proven in the record forwarded by the Clerk of the state court and we may not take judicial notice of it. Price v. Fulton County Comm., 170 Ga. App. 736, 738 (2) (318 SE2d 153). Plaintiff could not prevail in the absence of the statutory presumption under OCGA § 51-2-7 since the uncontroverted evidence was that defendant Jackson’s dog had not displayed any vicious propensities prior to biting plaintiff. See Fitzpatrick v. Henley, 154 Ga. App. 555, 556 (269 SE2d 60), and Marshall v. Person, 176 Ga. App. 542, 543 (336 SE2d 380).

Decided May 4, 1989.

William B. Simpson, Christopher J. McFadden, for appellant.

MacDougald & Hendon, Andrea J. Grossman, for appellees.

Jim Jackson, pro se.

Even if defendant Jackson’s dog is established to be vicious or dangerous, additional genuine issues of material fact remain as to whether defendant Jackson was careless in his management of the dog and whether plaintiff exercised reasonable care for his own safety. Defendant Jackson’s affidavit states that the dog was chained in an area accessible only by stepping over a 28” high guardrail and which was not an area where people would normally pass. Also, the evidence is unclear as to whether the dog chain was secured or dragging free when plaintiff was bitten. The evidence of record does not establish the plaintiff’s entitlement to judgment as a matter of law. Therefore, the trial court did not err in denying plaintiff’s motion for summary judgment against defendant Jackson. Compare Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675). Furthermore, in view of our holding in Division 1, the trial court also did not err in denying plaintiff’s motion for summary judgment as to defendant Dayton Hudson Corporation.

Judgment affirmed.

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


text:
    A89A0087.
    VEAL v. THE STATE.
    (382 SE2d 131)
   Sognier, Judge.

Dennis James Veal was convicted of rape, aggravated sodomy, and aggravated assault with intent to rape arising out of two incidents involving different victims, and he filed this appeal.

1. Appellant first contends the trial court erred by denying his motion for directed verdict of acquittal on the rape charge because the State did not prove the essential element of penetration. At trial the rape victim testified that appellant’s penis entered the outer surface of her vagina, and the examining physician testified that, although he could not determine whether appellant’s penis entered the victim’s vagina, he did find lacerations on her vulva and hymen.

“ ‘Under the established rule in this State, the penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight; it is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.’ [Cits.]” Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974). Penetration may be proved by indirect or circumstantial evidence. Id. Accordingly, construing the evidence to support the jury’s verdict, we find that a rational trier of fact reasonably could have found appellant guilty beyond a reasonable doubt of the offense of rape. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 157 Ga. App. 604 (1) (278 SE2d 5) (1981).

2. Appellant also enumerates as error the denial of his directed verdict motion on the aggravated assault with intent to rape charge, contending that as the evidence showed he used a blank gun the State did not prove use of a “deadly weapon” as alleged in the indictment, and thus there was a fatal variance between the allegata and the probata.

The assault victim testified that appellant accosted her in a women’s rest room at Grady Hospital, pointed a gun at her, and demanded that she have sex with him. After persuading appellant to go somewhere more private, she was able to grab the gun from his pocket and call for help. She recalled feeling “panicked” after she saw the gun, and testified that she did not know until after a hospital security guard restrained appellant that the gun was a blank gun.

Under OCGA § 16-5-21 (a) a person commits the offense of aggravated assault if the weapon used in commission of the charged act reasonably appeared to the victim to be deadly even if the weapon was not actually capable of inflicting deadly harm. Watts v. State, 142 Ga. App. 857, 859 (237 SE2d 231) (1977). A pistol used in the manner established by the evidence in the instant case is a “deadly weapon” within the meaning of OCGA § 16-5-21 (a) as a matter of law even though it was loaded only with blanks, see Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981), and thus there was no fatal variance between the allegata and the probata. See generally Hamilton v. State, 180 Ga. App. 197-198 (1) (348 SE2d 735) (1986).

3. Appellant contends in his third enumeration that the State improperly placed his character into evidence when the detective who investigated the rape testified that the victim identified appellant from a “lineup book of people who hung around” the bus station where the rape occurred. This issue has been decided adversely to appellant. Woodard v. State, 234 Ga. 901, 902 (2) (218 SE2d 629) (1975).

Decided April 19, 1989

Rehearing denied May 5, 1989

Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Henry M. Newkirk, Joseph J. Drolet, Assistant District Attorneys, for appellee.

4. Appellant’s final enumeration of error is that the trial court erred by denying his motion in limine to preclude the rape victim from testifying that during the attack she told appellant she was a virgin.

The trial transcript reveals that in response to the prosecutor’s question regarding the sequence of events during the attack, the rape victim testified that “[appellant] asked me did I have a boyfriend and have we ever had sex, and I told him, yes, I did. And no, we didn’t. I said I didn’t do those kind of things, and he told me it is my time to learn.” The trial court admitted the statement as part of the res gestae.

We agree with appellant that the trial court’s ruling was incorrect because the Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule. Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978). However, “ ‘[i]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court, [cits.]’ [cits.]” Stoe v. State, 187 Ga. App. 171, 172 (1) (369 SE2d 793) (1988), and we cannot perceive how appellant has been harmed by this ruling. The Rape Shield Statute protects the rape victim, not the accused, from admission of evidence “which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Parks v. State, 147 Ga. App. 617 (249 SE2d 672) (1978). Moreover, as appellant’s defense was based upon a claim of mistaken identity, not alleged consent by the victim, admission of the challenged testimony was not harmful to appellant. Finally, contrary to appellant’s assertions, to the extent that appellant was precluded by the Rape Shield Statute from inquiring further into the victim’s past sexual conduct, there was no violation of his constitutional rights. Harris v. State, 257 Ga. 666 (362 SE2d 211) (1987).

Judgment affirmed.

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