text:
    A89A0713, A89A0714.
    BUILDERS TRANSPORT, INC. v. HALL; and vice versa.
    (383 SE2d 341)
   Sognier, Judge.

In an earlier appearance of these parties before this court, in which the facts of the case are set forth in detail, we addressed the appeal filed by Builders Transport, Inc. from the denial of its motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Builders Transport v. Hall, 183 Ga. App. 812 (360 SE2d 60) (1987). In Division 1 of that opinion we reversed the jury’s award of damages to Hall for breach of contract, based on the insufficiency of the foundation evidence presented to support Hall’s opinion testimony as to the value of the property in question and Hall’s failure to pinpoint the value of a repossessed truck on the actual date of repossession. Id. at 815 (1). Upon the remittitur in that case being issued, the trial court entered an order granting Builders Transport’s motion for judgment n.o.v. on Hall’s contract claim pursuant to this court’s opinion, then exercised its discretion by granting Hall a new trial. See OCGA § 5-5-40 (h). The trial court denied Builders Transport’s motion to reconsider and we granted Builders Transport’s application for interlocutory appeal in Case No. A89A0713. In Case No. A89A0714 Hall appeals from the grant of partial summary judgment to Builders Transport on an issue involving the merits of Hall’s tort claim.

1. In Case No. A89A0713, because a close reading of the record reveals that the trial court did follow the mandate of this court’s opinion in Builders Transport, supra, by granting judgment n.o.v. to Builders Transport, the cases cited by Builders Transport regarding the interpretation to be given a reversal by an appellate court of the denial of various types of motions upon the remittitur being issued in the trial court are not applicable here. See, e.g., Kirkland v. Southern Discount Co., 187 Ga. App. 453 (370 SE2d 640) (1988). Rather, the issue presented is whether the trial court, after granting Builders Transport’s motion for judgment n.o.v. pursuant to our opinion, then abused its discretion by granting Hall a new trial, sua sponte, within 30 days of the entry of that judgment.

OCGA § 5-5-50 provides: “The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” “While it is the well-settled rule that this court ‘will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case.’ [cits.; see also Trawick v. Jackson, 188 Ga. App. 664 (374 SE2d 114) (1988)], it has nevertheless been held with equal uniformity that if the evidence does demand the verdict rendered, the first grant of a new trial will be reversed. [Cit.]” Moody v. Moody, 195 Ga. 13-14 (1) (22 SE2d 836) (1942). In Builders Transport, supra, this court determined that Hall failed to establish the necessary foundation for his opinion testimony and failed to prove the value of the truck on the date of repossession. The trial court based its grant of a new trial to Hall on its determination that Hall had demonstrated at trial that he possessed the evidence necessary to establish a claim for damages for breach of contract, but had failed to present that evidence in the technical format required for opinion testimony, a failure that mandated the grant of judgment n.o.v. to Builders Transport as to the trial already conducted, but one which did not demand a verdict in favor of Builders Transport on the merits of Hall’s claim, within the meaning of OCGA § 5-5-50, so as to preclude the grant of a new trial. However, Hall’s failure to establish his claim by presenting the necessary evidence in the required legal format was not occasioned by any error on the trial court’s part. “[E]ven a first new trial can not be granted where, under the law and the evidence, the verdict as rendered was the only lawful result.” Jones Motor Co. v. Finch Motor Co., 34 Ga. App. 399, 403 (129 SE 915) (1925). Since the evidence as adduced at trial by Hall demanded the verdict in Builders Transport’s favor, and no error of law whatsoever was committed by the trial court which prevented Hall from presenting the necessary evidence, the grant of new trial was an abuse of the trial court’s discretion. See id. at 400-403; see also Bank of America &c. Assn. v. Reserve Life Ins. Co., 90 Ga. App. 332, 333 (8) (83 SE2d 66) (1954).

2. In Case No. A89A0714, Hall contends the trial court erred by granting partial summary judgment in favor of Builders Transport in Hall’s remaining tort claim as to the issue of Builders Transport’s conversion of Hall’s tools and diesel fuel in the repossessed truck. The trial court’s holding was based on its interpretation of paragraph 10 of the parties’ installment sales contract, which provides: “If the Property [the truck in question] be repossessed by [Builders Transport] through legal process or otherwise, [Hall] agrees to send notice by registered or certified mail to [Builders Transport] within twenty-four hours thereafter if [Hall] claims that any article not constituting part of [the] Property was contained in Property at the time of repossession and agrees that failure so to do shall be a waiver of and bar to any subsequent claim therefor.” (Emphasis supplied.) It is uncontroverted that Hall did not send the requisite notice to Builders Transport about his personal belongings in the truck.

The trial court held that Hall waived all claims regarding his personal property in the truck under paragraph 10, notwithstanding Hall’s assertion that the truck was wrongfully repossessed, based on its construction that under paragraph 10 all such claims were waived (absent giving of the proper notice) regardless of the manner in which the truck was repossessed. Hall argues that paragraph 10 means that he waived his claim only if the truck was repossessed through legal process or other legal means, and that the trial court’s construction of the contract language is unconscionable because it interprets the contract as holding that Hall waives his claims even in the face of Builders Transport’s illegal repossession of the truck. Since he asserts that his cause of action is based on facts demonstrating that Builders Transport’s repossession of the truck was wrongful and illegal, facts strongly contested by Builders Transport, and the jury has not made a determination on that matter for or against either party, Hall argues that the trial court acted prematurely in applying the waiver in paragraph 10.

“[T]he paramount rule of the construction of contracts is to ascertain the intention of the parties. A corollary to that rule is that an intention contrary to the law should not be read into a contract; and that where a particular word or words in a contract are susceptible of two meanings, one of which would uphold the contract and render it legal, and the other would render it inoperative or illegal, that meaning which renders the contract legal will be adopted as the intention of the parties. [Cits.]” Hartsfield Co. v. Shoaf, 184 Ga. 378, 381-382 (191 SE 693) (1937). To construe paragraph 10 as holding that Hall waived any claims to articles in the truck when the truck was wrongfully or illegally repossessed, as is alleged here, so that the articles within the truck were wrongfully converted by Builders Transport, would be to construe “legal process or otherwise” in a manner rendering the contract void because of an illegal condition under OCGA § 13-3-5. The cases cited by the trial court do not require a different result because the unconscionability asserted in those cases was based not on the illegality of the contractual terms but on the vast disparity in the bargaining power between the parties to the contract. See, e.g., Hall v. Fruehauf Corp., 179 Ga. App. 362 (346 SE2d 582) (1986); Stefan Jewelers v. Electro-Protective Corp., 161 Ga. App. 385, 387-388 (1) (288 SE2d 667) (1982). Therefore, we agree with Hall that until a jury decides which parties’ version of the facts surrounding the repossession is accurate so as to establish whether or not Builders Transport’s repossession of the truck was legal or illegal, the provisions in paragraph 10 of the installment sales contract cannot be applied to bar Hall’s cause of action for the conversion of his personal articles in the truck. The trial court erred by granting summary judgment in favor of Builders Transport on this issue.

Decided June 1, 1989

Rehearing denied June 19, 1989

Fisher & Phillips, Griffin B. Bell, Jr., Charles A. Hawkins II, Blasingame, Burch, Garrand & Bryant, Andrew J. Hill III, for appellant.

Eichholz & Associates, Michael A. Lewanski, Harold J. Cronk, Gregory V. Sapp, John R. Calhoun, for appellee.

Judgments reversed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A0905.
    TIDWELL HOMES, INC. v. SHEDD LEASING COMPANY, INC.
    (383 SE2d 334)
   Banke, Presiding Judge.

The appellee, a foundation contractor, brought suit against the appellant builder to recover an indebtedness allegedly owed for the construction of foundation footings for a $2,000,000 residence. The appellant counterclaimed, alleging that the appellee had left the job without performing all of the work it had agreed to perform and that some of the work the appellee had performed was not in accordance with the plans and specifications. The case was tried before a jury, which returned a verdict in favor of the appellee, awarding it the entire amount sought in the complaint, plus interest. This appeal followed.

The appellee was not hired on a fixed-price basis but was to be paid for its work in accordance with a “price sheet” setting forth specific prices or rates for various tasks. Subsequent to the commencement of the work, it became necessary to modify the original foundation plans due to the discovery of stone outcroppings. These modifications, of course, increased the cost of the project. The cost was further increased as the result of certain damage caused by the overturning of a concrete pump which was being operated by a separate contractor.

There was a dispute over whether the appellee had agreed to construct all of the foundation walls or whether it had, from the outset, refused to construct the largest of the walls, which was to be 18 feet high, because of the presence of an equally high wall of fill dirt only a few feet away. The appellee’s president, Mr. Shedd, testified that he consistently refused to build this wall because the proximity and height of the fill dirt created the potential for a deadly cave-in.

After the foundation footings had been completed, but before work had begun on the walls, Shedd asked the appellant’s president, Mr. Tidwell, for an interim payment for the work thus far performed. Tidwell testified that it was at this time that he first learned that Shedd did not intend to build the 18-foot foundation wall. He stated that he handed Shedd’s bill for the footings back to him because he believed it was too high and deviated from the price list but that he urgedrhim to begin work on the remaining walls, promising to “give him some money . . . once I knew that he had his forms down there and he was going to do the work. . . .” It is apparent without dispute that the appellee did no further work on the project. However, Shedd’s explanation for the cessation of work differed considerably from Tidwell’s. He testified that after he asked Tidwell for the interim draw, Tidwell asked him how much the remaining work was going to cost and that upon hearing his answer, Tidwell replied, “That’s too much,” and told him that “since he (Tidwell) was going to have to do the [18-foot] wall anyway he would go ahead and complete the rest of the walls himself.” Shedd testified that he responded by saying, “That’s fine with me,” and believed he and Tidwell “were in an amicable position at that point.” Held:

1. The jury was authorized to conclude from the evidence that the appellant was contractually obligated to pay the appellee for the work the appellee had performed at the rates specified in the price sheet. While the appellant contends that the appellee breached the contract by abandoning the job when the request for an interim draw was refused, the jury was authorized to conclude from Shedd’s testimony that the contract was terminated at that point by the mutual consent of the parties. “Parties may by mutual consent abandon a contract so as to make it not thereafter binding.” Shoup v. Elliott, 192 Ga. 858, 861 (16 SE2d 857) (1941); Hennessy v. Woodruff, 210 Ga. 742, 744 (2) (82 SE2d 859) (1954). The trial court consequently did not err in denying the appellant’s motions for directed verdict and for judgment notwithstanding the verdict.

2. In view of our conclusion that the jury was authorized to conclude that the appellant was contractually indebted to the appellee for the amount claimed, we find it unnecessary to reach the appellant’s contention that the evidence would not have supported a recovery on the basis of quantum meruit.

3. The appellant contends that the trial court erred in giving the appellee’s requested charge that “that impossible, immoral and illegal conditions are void and are binding on no one.” The appellee, on the other hand, contends that this charge was authorized by Shedd’s testimony that he “underst[oo]d it to be a violation of law” to build a retaining wall immediately adjacent to an unstabilized wall of fill dirt, as well as by the testimony of Shedd’s father, who had been the appellee’s job foreman at the site, that he was “concerned” that he might be cited and fined for safety violations if he built the wall under the conditions which existed at the site.

In reliance on the court’s expressed willingness to give the requested charge, the appellee’s counsel made the following argument to the jury: “[The] undisputed testimony was that it’s an O.S.H.A. violation, a violation of federal occupational worker safety laws to put a man in that situation. Even if Shedd was responsible for doing the entire job, that condition right there excused them from having to go any further.” We must agree with the appellant that there was no evidence whatever from which the jury could have determined that the construction of the wall would have resulted in a violation of any “federal occupational worker safety laws.” The trial court was not asked to take judicial notice of any such laws, and none were before the jury. Indeed, no federal laws or regulations were ever cited to the trial court, nor, for that matter, have any been cited to this court on appeal.

There is authority for the proposition that regulations appearing in the Federal Register may be judicially noticed by the courts of this state, even though state regulations may not. See Sims v. Southern Bell &c. Co., 111 Ga. App. 363, 364-5 (141 SE2d 788) (1965). However, “[although the trend seems to be to extend the doctrine of judicial notice to ‘[matters] capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy,’ under our tradition of party-presentation the extent of the courts’ willingness to take the initiative in looking up the authoritative sources will usually be limited.” Id. at 365. Accord Agnor’s Ga. Evidence, § 16-3, p. 442 (2d ed.). There having been no basis upon which the jury could have determined the contents or requirements of any federal worker safety laws, we hold that the giving of the requested charge was not authorized on the basis of the theory urged by the appellee.

Decided May 30, 1989

Rehearing denied June 19, 1989.

Kessler & Parks, Michael A. Kessler, for appellant.

McReynolds & Boyd, Frederic S. Beloin, Michael J. Welch, for appellee.

Having reached this conclusion, however, we conclude that the court’s charge on illegality was nevertheless authorized upon another theory. It has been held that “[t]he word ‘illegal’ applies to contracts forbidden by public policy” as well as to contracts expressly forbidden by law, Hanley v. Savannah Bank &c. Co., 208 Ga. 585, 587 (68 SE2d 581) (1952); and it has also been held that where a contract contains some provisions which are based on sufficient and legal consideration and some which are illegal, the unenforceability of the latter will not affect the validity of the former. Starr v. Robinson, 181 Ga. App. 9, 10 (351 SE2d 238) (1986).

The jury could reasonably have concluded from the testimony in this case that for the appellee to have proceeded with the construction of the wall under the site conditions as they existed would have required exposing its workers to a high risk of injury or death. Where the performance of a contractual condition would be contrary to the health, safety or welfare of others, it may be considered unenforceable. See generally OCGA § 13-8-2; Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 337, n. 4 (329 SE2d 136) (1985). Cf. Hughes v. Reynolds, 223 Ga. 727, 730 (157 SE2d 746) (1967). We consequently hold that the giving of the requested charge did not constitute reversible error.

4. The appellee has moved for the imposition of a ten percent penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal. As we do not consider the appellant’s final enumeration of error to have been entirely frivolous, this motion is denied.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Pope, Judge.

text:
    A89A0481.
    WARE v. THE STATE.
    (383 SE2d 368)
   Pope, Judge.

Defendant Randall Ware appeals from his conviction and sentence for the offense of child molestation. Held:

1. Defendant first contends that the State used its peremptory strikes in a racially discriminatory manner in violation of the mandate of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Although the record in this case is somewhat incomplete, it does reveal that of the 42 prospective jurors, four, or 9.5 percent were black. The State struck three blacks through the use of peremptory challenges and the jury impanelled was composed of eleven whites and one black. Thus 8.3 percent of the jury that tried the defendant was black. The disparity between the percentage of blacks on the panel and the percentage of blacks on the jury was slightly more than one percent. We agree with the trial court that this disparity was insufficient to establish a prima facie showing of racial discrimination in the State’s exercise of its peremptory challenges. Accord Williams v. State, 258 Ga. 281 (6) (368 SE2d 742) (1988); Aldridge v. State, 258 Ga. 75 (4) (365 SE2d 111) (1988); Stewart v. State, 190 Ga. App. 162 (1) (378 SE2d 387) (1989); cf. Burgess v. State, 189 Ga. App. 790 (4) (377 SE2d 543) (1989).

Moreover, assuming arguendo that defendant did establish a prima facie case of racial discrimination (albeit a weak one), on appeal the defendant challenges the “racially neutral” explanation offered by the State only as to one of the three veniremen struck. The prosecuting attorney stated he struck that juror because she was similar in age to the defendant, because she was divorced, and because of a “concern” about her attitude, specifically that she did not act interested in the proceedings.

As the Supreme Court stated in Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987), “[a] court charged with the duty of determining whether the prosecutor has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor’s proffered justifications are questionable. Similarly, a weak prima facie case may be rebutted more readily than a strong one.” Id. at 327. See also Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988). Accordingly, and giving the trial court’s findings great deference, as we must on appeal (see e.g., Kincey v. State, 191 Ga. App. 300 (381 SE2d 439) (1989); Glanton v. State, 189 Ga. App. 505, 507 (1) (376 SE2d 386) (1988)), we agree that the trial court’s denial of defendant’s Batson motion was not erroneous and must be affirmed.

2. Defendant next argues that the trial court committed reversible error by allowing the State to introduce into evidence a videotape of an interview between the victim and an officer investigating the alleged offense. Specifically, defendant contends that the evidence lacked “sufficient indicia of reliability” as provided by OCGA § 24-3-16, the Child Hearsay Statute. We find no merit to this enumeration. The record in this case shows that the child was available, and did in fact testify at trial, and that the circumstances surrounding the videotape of the interview as testified to by the investigating officer provided sufficient indicia of reliability of the statements therein. Contrary to defendant’s assertions, conflicts between the videotaped statement and the testimony of the child at trial would not necessarily render the former inadmissible, but would rather present a question of credibility of the witness to be resolved by the trier of fact, here the jury. We find no error in the trial court’s admission of the evidence complained of. Accord Celis v. State, 186 Ga. App. 866 (2) (369 SE2d 53) (1988); see also Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249) (1988); Bess v. State, supra; Windom v. State, 187 Ga. App. 18 (2) (369 SE2d 311) (1988).

Decided June 19, 1989.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

3. We find no merit to defendant’s argument that the trial court erred by not allowing one of his character witnesses to testify concerning his reputation for molesting children. See Baine v. State, 181 Ga. App. 856 (2) (354 SE2d 177) (1987). Moreover, the witness did subsequently testify that he had never witnessed the defendant “do anything out of the ordinary” around young children. This enumeration affords no basis for reversal.

4. “[Defendant] contends that the trial court erred in allowing the jury, upon request, to rehear the victim’s testimony on direct, but not cross-examination. The jury is entitled to designate the testimony which it desires to rehear, in the absence of special circumstances which might work an injustice. See Byrd v. State, 237 Ga. 781 (1) (229 SE2d 631) (1976); Wilkerson v. State, 165 Ga. App. 14 (299 SE2d 67) (1983). We find no special circumstances in the instant case requiring the replay of the cross-examination of this witness against the jury’s wishes. Accordingly, this enumeration of error is without merit.” Harris v. State, 173 Ga. App. 787, 789 (328 SE2d 370) (1985).

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0582.
    ODISTER v. THE STATE.
    (383 SE2d 371)
   McMurray, Presiding Judge.

Defendant was charged by indictment with the offenses of burglary, aggravated assault, and aggravated sodomy. The jury returned guilty verdicts on the charges of burglary and aggravated assault. On the aggravated sodomy charge, the jury returned a verdict of guilty of the lesser included offense of “attempt to commit aggravated sodomy.” In this out-of-time appeal, defendant’s sole enumeration of error challenges the admission into evidence of a prior conviction of rape, as a similar transaction to the aggravated sodomy charge. Held:

1. The dissent questions this court’s jurisdiction to decide the case sub judice. Consequently, prior to addressing the merits of defendant’s sole enumeration of error, we are compelled to address the issue of the out-of-time appeal raised by the dissent. The record reveals that the trial court granted defendant’s motion for an out-of-time appeal reciting in its order that the grant was based on “good and sufficient reason having been shown.” The court did not elaborate further and no transcript of the testimony before the trial court is included in the record on appeal. The case law is absolutely clear that absent a transcript in the record demonstrating an appellant’s failure to present evidence to support the trial court’s order, this court is required to assume the trial court’s grant of the out-of-time appeal was proper. Conway v. State, 183 Ga. App. 573 (1) 574 (359 SE2d 438) (1987); Johnson v. State, 182 Ga. App. 477 (1), 478 (356 SE2d 101) (1987). Dissents were written in both Conway and Johnson, asserting the exact same position as raised here, and in each case that position was soundly rejected by this court. See Conway, supra at 575; Johnson, supra at 479. See also Jenkins v. State, 187 Ga. App. 608, 609 (371 SE2d 132) (1988), in which a dissent was also written at 610. Although these cases are referenced in the dissent for comparison purposes, these cases are not distinguishable from the case sub judice but rather completely control the issue adversely to the dissent. In view of the fact that Conway and Johnson and Jenkins, have not been overruled, “It is the duty of this court to apply the law regardless of individual disagreement with the established rule to be applied.” Cole v. Cates, 113 Ga. App. 540, 545 (149 SE2d 165) (1966).

2. “Evidence of an independent crime is admissible if two conditions are satisfied: the defendant is shown to be the perpetrator of the independent crime, and there is a similarity between the independent crime and the offense charged such that proof of the former tends to prove the latter. Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983). Evidence of a similar crime is admissible to show identity, motive, plan, scheme, bent of mind, and course of conduct. Head v. State, 246 Ga. 360, 364 (271 SE2d 452) (1980). It is admissible to show the defendant’s lustful disposition and to corroborate the victim’s testimony. Milner v. State, 180 Ga. App. 97, 101 (348 SE2d 509) (1986).” Holloway v. State, 187 Ga. App. 716 (1), 717 (371 SE2d 259). To satisfy the first condition the State presented evidence of defendant’s conviction of the prior offense. The State satisfied the second condition by establishing the similarities between the offenses. In both instances, the defendant was armed with a knife, held the victim by the neck and threatened to kill her. Both victims received significant physical injury from assaults which preceded any sexual contact. (The victim of the independent crime was beaten, while the victim in the case sub judice was choked and cut.) Contrary to defendant’s argument, we find a logical connection between the independent crime and the offense charged tending to prove the offense charged. Compare Wimberly v. State, 180 Ga. App. 148, 149 (348 SE2d 692). See Kickery v. State, 185 Ga. App. 274, 276 (1) (363 SE2d 805); Luckey v. State, 185 Ga. App. 262, 263 (3) (363 SE2d 791); and Bernyk v. State, 182 Ga. App. 329, 330 (2), 331 (355 SE2d 753).

Judgment affirmed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

This court is without jurisdiction to entertain criminal appeals filed when there is disregard of the jurisdictional prerequisite for a notice to be filed within thirty days of the judgment appealed from, no explanation for untimeliness, and permission for out-of-time appeal is granted without motion, hearing of record, or notice to the State.

Yet that is precisely what is happening here. Defendant was represented by the public defender at trial. At sentencing, the court carefully informed defendant that he had a right to sentence review by a panel of superior court judges, a right to appeal the conviction, and a right to move for a new trial, all with appointed counsel if desired. The court stated as to each avenue that it had to be pursued within thirty days.

Defense counsel stated in response to the State’s question as to whether he knew what defendant wanted to do: “I do not, your honor, but I anticipate an appeal. I would certainly anticipate it.” The court responded that if defendant was still unable to hire a lawyer, “Of course, I will appoint the public defender to represent him to enter an appeal to the Court of Appeals of Georgia.”

Counsel acknowledged this and the court added: “If that’s what he wants to do.” Counsel stated he would explain that to defendant. That was on May 3, 1988.

The thirty days went by and no motion for new trial or notice of appeal or motion for extension was filed. OCGA §§ 5-6-38; 5-6-39; 5-6-51.

Decided June 19, 1989.

Michael H. Lane, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, A. Thomas Jones, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Six months later, on November 10, the same counsel obtained an order permitting an out-of-time appeal and simultaneously filed a document entitled “Out-of-Time Notice of Appeal” plus defendant’s pauper affidavit. The affidavit was dated May 12, nearly three weeks before the thirty days had expired. No motion for out-of-time appeal was filed or served on the State. There was no hearing insofar as such can be discerned from the record.

The court stated in the order that good and sufficient reason was shown for the allowance. What it was is not shown. If fault lay with defendant, he is not entitled to such an appeal. Westberry v. State, 257 Ga. 617 (361 SE2d 826) (1987). Whether it was found that defendant was not responsible, and that defendant would otherwise lose a constitutional right, has not been established. If the court concluded that counsel was ineffective in failing to act on time, why is the same counsel appointed to represent defendant on appeal? In any event, the State had no opportunity to contest whether defendant was entitled to an out-of-time appeal. It, too, must be afforded due process of law. Otherwise the State’s interests as a party in achieving finality of criminal convictions in a timely and orderly manner, and in avoiding frivolous appeals and the unnecessary expenditure of resources, are not protected.

The case should be remanded with direction for a hearing on the implied motion for out-of-time appeal. Cannon v. State, 175 Ga. App. 741, 743 (334 SE2d 342) (1985). Compare Johnson v. State, 182 Ga. App. 477 (356 SE2d 101) (1987); Conway v. State, 183 Ga. App. 573 (359 SE2d 438) (1987); Jenkins v. State, 187 Ga. App. 608 (371 SE2d 132) (1988). See Shirley v. State, 188 Ga. App. 357, 358 (1) (373 SE2d 257) (1988). Failure to timely file a notice of appeal is ordinarily grounds for dismissal, OCGA § 5-6-48 (b) (1). When statutorily-prescribed jurisdictional requisites for appeal are to be overridden on constitutional grounds by the trial court, it must be made plain in the record. Cannon, supra, recognizes this. Otherwise this court cannot discharge its duty to determine its jurisdiction, which is the threshold question in every case.


author: McMurray, Presiding Judge.

text:
    A89A0744.
    EBENEZER v. THE STATE.
    (383 SE2d 373)
   McMurray, Presiding Judge.

Defendant was indicted for 17 counts of forgery in the second degree. The evidence adduced at a jury trial revealed that on June 3, 1988, defendant went to an air-express company in College Park, Georgia and posted a package to Walter Omopariola in Lagos, Nigeria. Upon a routine inspection of the package, an employee of the air-express company found 17 counterfeit one hundred dollar bills. Another employee of the air-express company contacted police authorities and, when defendant was approached by law enforcement officers, he fled. Defendant was found guilty on all 17 counts of the indictment and this appeal followed. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to grant his motion for directed verdict of acquittal, arguing that the State failed to prove, beyond a reasonable doubt, that he had possession of the forged United States currency with the intent to defraud.

“ ‘A person will not be presumed to act with criminal intention but the trier of fact may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6.” Browning v. State, 174 Ga. App. 759, 760 (3) (331 SE2d 625). In the case sub judice, defendant’s possession of the forged United States currency, his posting of the forged writings and his flight from law enforcement officers was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that defendant possessed the forged United States currency with the requisite intent to defraud. OCGA § 16-9-2 (a). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Browning v. State, 174 Ga. App. 759 (3), supra.

2. Defendant contends in his second enumeration of error that “[t]he trial court erred in failing to construe the indictment as charging one (1) count of forgery instead of seventeen (17) separate counts of forgery . . . and in holding that possession of each counterfeit bill is a separate offense.” This contention is without merit.

The simultaneous possession of forged documents, when accompanied by the requisite fraudulent intent, constitutes separate offenses. Patterson v. Caldwell, 229 Ga. 321 (1), 322 (191 SE2d 43). See Forbes v. State, 129 Ga. App. 231 (2) (199 SE2d 548). The evidence adduced at trial in the case sub judice, which included evidence showing that defendant was in possession of 17 counterfeit one hundred dollar bills, was sufficient to support defendant’s convictions, beyond a reasonable doubt, for 17 counts of forgery in the second degree. See Division 1 of this opinion.

3. Defendant contends in his third enumeration of error that the trial court erred in finding that a telephone conversation he had with his cousin in Nigeria was inadmissible hearsay.

The trial court sustained the State’s objection when defendant attempted to testify to the content of a telephone conversation defendant had with his cousin in Nigeria, Walter Omopariola. As an offer of proof, defendant testified that Mr. Omopariola contacted him via telephone and requested defendant to purchase equipment in the United States for use by Mr. Omopariola in Nigeria. Defendant also testified that Mr. Omopariola promised to send money for the equipment and that, three weeks after the telephone conversation, defendant received the 17 counterfeit one hundred dollar bills from Mr. Omopariola. Defendant argues that this testimony was not hearsay in that it was offered to explain his conduct in returning the counterfeit money to Mr. Omopariola and that it was harmful to exclude this evidence because it was critical to his sole defense, i.e., lack of intent to defraud. See OCGA § 24-3-2; Momon v. State, 249 Ga. 865, 866, 867 (294 SE2d 482).

Pretermitting the question of whether the content of the above telephone conversation was admissible evidence, we find its exclusion harmless since defendant later testified to virtually the same information which was the subject of the above telephone conversation. “ ‘(E)vidence wrongfully withheld is harmless where admissible evidence of the same fact is introduced.’ Patrick v. State, 150 Ga. App. 266 (1), 267 (257 SE2d 356).” Clarke v. State, 169 Ga. App. 433 (1) (313 SE2d 716).

4. In his fourth enumeration, defendant contends the trial court erred in excluding the content of a telephone conversation he had with an employee of the air-express company. Defendant offered proof that this testimony would “inform the jury what [he] understood that he was to do with respect to the package [that contained the forged United States currency].” We find no harmful error since defendant later testified as to the directions given to him by the employee of the air-express company. Clarke v. State, 169 Ga. App. 433 (1), supra.

5. Defendant contends in his fifth enumeration that “[t]he trial court erred in refusing to allow [him] to testify to the return address on an envelope.”

Defendant testified that he received an envelope containing the counterfeit one hundred dollar bills through the United States Postal Service during the last week in May 1988. He then testified that the letter containing the counterfeit money “was addressed from Walter —” The State’s attorney objected on the grounds that defendant was testifying to the “contents of a document not in evidence.” The objection was sustained. Pretermitting the admissibility of this testimony, we find no harmful error since defendant later testified that the counterfeit money was sent to him from his cousin in Nigeria, Walter Omopariola. Clarke v. State, 169 Ga. App. 433 (1), supra.

6. Next, defendant contends the trial court erred in refusing to give his requested jury charge that “[t]o warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” See OCGA § 24-4-6. “Although it may be the better policy to give the [above] instruction in close cases, such a charge is required only where the evidence relied upon for conviction is entirely circumstantial!.] Jones v. State, 243 Ga. 584 (255 SE2d 702) (1979).” Griffith v. State, 172 Ga. App. 255, 259 (2) (322 SE2d 921). The evidence in the case sub judice was not entirely circumstantial. There was direct evidence that defendant was in possession of counterfeit United States currency and that he was posting it to a third party in Nigeria. Consequently, the trial court did not err in refusing to give defendant’s requested instruction.

7. In his seventh enumeration, defendant contends the trial court erred in its instruction to the jury in “failing to define intent to defraud as involving the elements of cheating or dishonesty.”

“When words are of obvious significance, an omission to define such words, in the absence of a written request, will not require a new trial. Perren v. State, 69 Ga. App. 417 (3) (a) (25 SE2d 823) (1943).” Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587). In the case sub judice, we find the word “defraud,” as used in the court’s charge, is of such obvious significance and common understanding as to need no definition by the trial court. See Kelly v. State, 63 Ga. App. 231, 239 (7) (10 SE2d 417). This enumeration is without merit.

8. In his final enumeration, defendant contends the trial court erred in failing to sustain his demurrer to the indictment, arguing that jurisdiction over the offense of counterfeiting is vested exclusively in the federal courts.

Defendant was not indicted for counterfeiting United States currency, he was indicted for forgery in the second degree under OCGA § 16-9-2 (a). See Cross v. State, 122 Ga. App. 208, 209 (1) (176 SE2d 517). This Code section provides that “[a] person commits the offense of forgery in the second degree when with the intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.” (Emphasis supplied.) The term “writing” in this Code section “includes, but is not limited to, . . . money . . . .” OCGA § 16-9-3. The trial court did not err in overruling defendant’s demurrer to the indictment.

Judgment affirmed.

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

Decided June 19, 1989.

Alfred L. King, Jr., for appellant.

Robert E. Keller, District Attorney, Deborah Benefield, Albert Collier, Assistant District Attorneys, for appellee.


text:
    A89A0756.
    In the Interest of J. L. G. et al.
    (383 SE2d 376)
   Pope, Judge.

Appellant is the mother of four minor children. The juvenile court terminated appellant’s parental rights in the two youngest children, a six-year-old boy and eight-year-old girl, and the mother appeals.

1. The record shows that the Department of Family and Children Services (DFCS) first became involved with the mother and her four children in January 1985. In April 1985 the mother voluntarily placed the children in foster care. The two older children returned to the care of the mother for a short period in 1985 but temporary custody was then returned to DFCS. On August 6, 1985, the parents of the children stipulated that they were unable to provide food, clothing, housing or parental supervision for the children and the juvenile court entered an order adjudicating the children to be deprived and placed the children in the custody of DFCS.

A petition to terminate parental rights was filed on February 19, 1988. Following several continuances, a hearing was held on the termination petition on June 7, 1988. At that time a psychologist testified concerning the mother’s lack of progress and her continued inability to care for herself without assistance. An order was entered on June 9, 1988, pursuant to which the parties agreed to a 120-day continuance and which directed the mother to comply with the following reunification plan: 1) obtain an adequate residence with an appropriate sleeping area for the children within thirty days of the hearing; 2) have bi-monthly visits with the children; 3) remit child support payments on a weekly basis for each child; 4) confirm stable employment for a minimum of 95 days, as evidenced by pay stubs; and 5) contact the DFCS worker weekly.

On October 20, 1988, another hearing was held on the termination petition. At that hearing a DFCS caseworker testified concerning the mother’s compliance with the court’s previous order. Specifically, the caseworker testified that the mother did not fully comply with any of the terms of the order, although in recent weeks she had been visiting with the children and making child support payments. The mother testified that she had obtained employment and that she was trying, with the help of her new husband, to properly care for the children when they visited. The court also heard testimony from another caseworker that the younger children had missed out on initial bonding with their mother and their relationship to her was not “cemented.”

Following that hearing, the trial court entered an order on November 15, 1988, terminating the parental rights of the mother in the two younger children, and providing for a reunification plan for the older children. On appeal the mother challenges the sufficiency of the evidence, specifically as to whether the evidence supported a finding of present unfitness. Although the mother’s brief contains no citation to the record in support of her argument, her argument is apparently based on the fact that the trial court, in its order terminating the mother’s parental rights, recited the history of the case in great detail beginning with the initial contact with the family in 1985 up until the time the order was entered. However, it is clear from our reading of both the order and the record that the court’s order was not based upon events that occurred in 1985, but on the continued and unresolved parental unfitness and inability to care for the children from 1985 until the time the order was entered, including the mother’s failure to comply with the court’s most recent reunification plan. See OCGA § 15-11-81 (b) (4) (C) (iii).

“[T]he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test... , is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence [parental misconduct or inability as provided by OCGA § 15-11-81 (b).]” (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-513 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987).

2. Appellee’s motion to dismiss this appeal based upon the mother’s failure to provide references to the record or transcript in her brief as required by Court of Appeals Rule 15 (a) (1) and 15 (c) (3), is hereby denied. See Justice v. Dunbar, 244 Ga. 415 (260 SE2d 327) (1979); Gerdes v. Dziewinski, 182 Ga. App. 764 (1) (357 SE2d 110) (1987).

Decided June 19, 1989.

Charles V. Gandy, Jr., for appellant.

Sandra M. Gentry, Philip J. Wydro, Rebecca P. Dally, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

Judgment affirmed.

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


author: Benham, Judge.

text:
    A89A0125.
    THOMPSON v. THE STATE.
    (383 SE2d 339)
   Benham, Judge.

Appellant was convicted of rape, aggravated sodomy, and burglary. He appeals from the denial of his motion for new trial, raising three enumerations of error. We affirm the judgment of the trial court.

1. Appellant complains that he was denied effective assistance of counsel during his trial. He contends that his trial attorney did not consult with him about jury selection and that the attorney presented a character witness whose testimony led to the introduction of unfavorable evidence. “ ‘ “To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cits.]” ’ ‘The complaining defendant must make both showings. His failure “to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.” [Cit.] A reviewing court need not “address both components if the defendant makes an insufficient showing on one,” (cit.), nor must the components be addressed in any particular order. (Cit.)’ ” Prophitt v. State, 191 Ga. App. 5 (2) (381 SE2d 83) (1989).

“ ‘ “The decisions on which witnesses to call . . . what jurors to accept or strike . . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” ’ [Cits.]” Austin v. Carter, 248 Ga. 775, 779 (285 SE2d 542) (1982). At the hearing on the motion for new trial, appellant testified that his trial counsel did confer with him during jury selection; that there were five persons appellant wanted to retain on the jury and the only reason he wanted to do so was because they were black; and that there were at least four black jurors on appellant’s jury. Appellant’s trial counsel testified that during the voir dire he conferred with appellant; that there was one specific juror on which they disagreed; and that appellant said he would defer to counsel’s decision. Under these facts, appellant failed to satisfy the first component of the test, i.e., he failed to show that counsel’s performance was deficient.

Regarding the character witness, the trial counsel testified that it was appellant who informed him about the witness, who was appellant’s employer. The trial counsel, a veteran of over 100 criminal trials, characterized the witness as “[not] just your run of the mill employer. . . . [He] was a fellow who presented himself in court in a suit and tie, he was articulate, he was believable, and he was sold on Solomon Thompson. . . . [H]e probably may have been our only witness that, in my opinion, could be believable or was believable. . . . He thought that [appellant’s] character was excellent. The tradeoff was to be prepared to have introduced [appellant’s] prior [conviction] record which, according to our investigation, was . . . several years old [and for] . . . relatively . . . minor crime. And I thought that the tradeoff would work in his favor.” The attorney further testified that he discussed facts of the previous convictions with appellant, and that he was surprised at trial during appellant’s cross-examination “by some facts that he had not told me about one of them that related it, in fact... to the matter for which he was on trial. . . .” Again, the evidence adduced at the hearing failed to show a deficiency in the trial counsel’s performance. The trial court did not err in rejecting appellant’s claim of ineffective assistance of counsel. Gabler v. State, 177 Ga. App. 3 (2) (338 SE2d 469) (1985).

2. Appellant complains that statements he gave on August 3, 1987, before he was arrested, should have been suppressed because he had not been given his Miranda rights. We find no error in the trial court’s decision not to suppress the statement. The testimony given at the hearing on this matter shows that on the afternoon in question, detectives went to appellant’s home to question him about the crimes. He was advised that he was not under arrest and that he did not have to make any statements at that time. He agreed to answer questions. The detectives asked him whether he had been to a particular block on a particular street or knew anyone who lived in that vicinity; whether he knew the victim or her roommate; and whether there was any reason for his fingerprint to have been at that residence. Appellant answered all of the questions in the negative, and the interview was concluded. The detectives left appellant’s home and the area, but returned later that day to arrest appellant. He was given his Miranda warnings at that time.

“For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. [Cits.] . . . [T]here is no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way by action of the officers when he made [the statement in question]. The defendant’s statement was admissible as a statement made prior to any in-custody interrogation. [Cit.]” Hardeman v. State, 252 Ga. 286, 288 (313 SE2d 95) (1984).

Decided May 31, 1989

Rehearing denied June 20, 1989

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

3. In his final enumeration of error, appellant contends that a videotape of a statement he made to detectives after his arrest should not have been shown to the jury because it constituted an illegal invasion of privacy under OCGA § 16-11-62 (2). That statute states that it shall be unlawful for “[a]ny person, through the use of any instrument or apparatus, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided however, that it shall not be unlawful to use any camera, photographic equipment, videotape equipment, or other devices to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or any other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his case with his attorney. . . .” The record shows that before the custodial interrogation at the police station began, the interviewing detective placed a tape recorder in front of appellant and asked him whether he minded if the detective taped the interview, and appellant said that he did not. Neither party specified whether the method of recording would be videotaping. It could be argued that appellant consented to the use of “any instrument or apparatus ... to record” the conversation. However, assuming that he did not consent, the statute was not violated, since it does not prohibit a party to a conversation from secretly recording or transmitting the conversation without the knowledge or consent of the other party. State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978). Moreover, the police station is not a “private place” within the meaning of the statute. See OCGA § 16-11-60 (2). Since the interrogation was being conducted in a public place and recorded at the behest of one of the parties to the conversation, the interrogating detective, the trial court did not err in allowing the videotape to be admitted into evidence and viewed by the jury.

Judgment affirmed.

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


text:
    A89A0287.
    CHAPMAN v. HEPBURN.
    (383 SE2d 352)
   Benham, Judge.

Appellee brought suit against appellant to recover for damage to her automobile arising from a collision. Appellant denied liability, but at trial challenged only the amount of damages sought. The jury returned a verdict for appellee for actual damages and attorney fees, and the trial court added prejudgment interest pursuant to OCGA § 51-12-14.

1. In his first enumeration of error, appellant asserts that the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict. The motions were based on appellant’s contention that appellee failed to carry her burden of proof with regard to the damage to her automobile.

“ ‘ “There are two ways to prove damages to a motor vehicle caused by a collision: (1) By showing the difference between the fair market value of the vehicle before and after the collision; and (2) Proof of necessary repairs that are the direct and proximate result of the collision and which represent the reasonable value of labor and material used for the repairs. However, this is subject to the proviso that the aggregate of the repair costs, together with hire on the vehicle while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the market value of the car before the damage with interest. [Cits.]” ’ ” Morris v. Bonner, 183 Ga. App. 499 (3) (359 SE2d 244) (1987). Appellee chose to employ the second method, and appellant contends that she failed to carry her burden because she did not prove the value of the vehicle. Our review of the record convinces us otherwise.

An appraiser of automobiles testified to the value of a car of the same make and model as appellee’s; that was sufficient to show the best judgment of the witness as to the value of the car. See Marco Publications v. Southern Airways, 139 Ga. App. 808 (3) (229 SE2d 664) (1976). Considering that evidence together with testimony concerning the age of the vehicle and its use, we conclude that the jury was given sufficient information to determine the value of the vehicle (Georgia Power v. Campbell, 130 Ga. App. 875 (1) (204 SE2d 812) (1974)) and whether that value exceeded the cost of the repairs. There was no error, therefore, in denying appellant’s motions for directed verdict and judgment notwithstanding the judgment on that issue. See Marco Publications v. Southern Airways, supra, Division 4.

2. The jury awarded appellee attorney fees. In his second enumeration of error, appellant asserts that the award was erroneous because the existence of a bona fide controversy, as shown by the fact that appellee received less in damages than she sought, precludes a finding of stubborn litigiousness. That position has been rejected by this court. See Georgia-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747 (2B) (266 SE2d 531) (1980).

Appellant steadfastly denied liability in this case until trial, then made no effort to contest anything other than the amount of damages. “The evidence here shows ‘that there existed no bona fide controversy as to appellant’s liability, but rather that appellant was merely “stonewalling,” as contemporary idiom has it — that is, that appellant was attempting to utilize what this court has denominated “the ‘so sue me’ ploy.” ’ (Cit.) [Cit.] Thus there was evidence to support the award of attorney fees for appellant’s stubbornly litigious behavior and the unnecessary trouble and expense appellant caused appellee by [his] denial of any liability for the . . . damage to appellee’s property.” Southern R. Co. v. Crowe, 186 Ga. App. 244, 248 (366 SE2d 846) (1988). The authority relied upon by appellant, Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (1) (365 SE2d 540) (1988), is distinguishable in that the defendant in that case raised valid issues concerning liability; appellant here did not. We find no error in the denial of appellant’s motions for directed verdict and judgment notwithstanding the judgment with regard to the award of attorney fees.

3. Finally, appellant complains of the trial court’s award of prejudgment interest pursuant to OCGA § 51-12-14. We agree with appellant that the award of interest was erroneous.

“Where a claimant has given written notice by registered or certified mail to a person against whom claim is made for unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the claimed sum if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the sum claimed.” OCGA § 51-12-14 (a). In the present case, appellee made demand on appellant for damages to her car in the amount of $5,020.03. The jury returned a verdict awarding appellee $2,520.03 in actual damages, and $4,552.50 attorney fees. Since the sum of those elements of the verdict totalled more than the amount claimed, the trial court awarded prejudgment interest.

Appellee argues that the trial court was authorized to do so by Grissett v. Wilson, 181 Ga. App. 727 (1) (353 SE2d 621) (1987), but we find that case distinguishable. There, the demand specifically stated that it was a demand to settle “all claims”; the demand in the present case was very specific that it concerned the damages to appellee’s car. In addition, both the claims in Grissett were in existence at the time of the demand, whereas appellee here had only the claim for property damage at the time the demand was made; the entitlement to attorney fees arose from appellant’s conduct in the course of litigation, after the demand was made.

Decided June 7, 1989

Rehearing denied June 20, 1989

Pruitt & Britt, Walter M. Britt, for appellant.

Robert F. Webb, for appellee.

The plain language of the statute provides for prejudgment interest if the verdict is not less than the amount of the claim; the verdict for appellee, as it pertained to the claim made in the demand served on appellant, was for less than the amount of the claim; therefore the statute does not apply and appellee was not entitled to prejudgment interest. That portion of the judgment must be vacated, and the trial court is directed to do so on receipt of the remittitur.

Judgment affirmed in part and reversed in part with direction.

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


author: Deen, Presiding Judge.

text:
    A89A0406.
    MOORE v. THE STATE.
    (383 SE2d 355)
   Deen, Presiding Judge.

Appellant Moore and prosecuting witness Laketa Harden had been engaged in an intimate relationship for well over a year when there occurred the incident which gave rise to the instant case. Early on the morning of January 30, 1987, Ms. Harden was preparing to leave for work. She started her car and then, leaving the car unlocked and running, went back into her house to get her handbag. After she had returned to the car and driven a few blocks, appellant (according to Ms. Harden) rose up from the back seat, brandishing a gun. He allegedly threatened Ms. Harden verbally and then took over the car and drove from Atlanta to Macon, Georgia, where he got out of the automobile and announced that he was going to kill Ms. Harden. The gun discharged, either accidentally (according to Ms. Harden) or intentionally (according to appellant, who alleged that Ms. Harden had fired the shot), seriously wounding appellant. Police were summoned, and Moore was hospitalized and arrested on a kidnapping charge.

At least one of the law enforcement officers testified at trial that the gun was not examined for fingerprints and that no gunshot residue tests or examinations of either party’s clothing for powder burns were conducted. There was testimony that Ms. Harden and Moore had had a serious quarrel a day or two before the alleged kidnapping and shooting. Correspondence between appellant and the prosecuting witness, purporting to shed light upon circumstances leading to the kidnapping and shooting, was introduced into evidence and, over objection, Ms. Harden was permitted to read to the jury her own letter.

Moore was found guilty as charged. On appeal he enumerates as error the admission of the allegedly improper “opinion” testimony of one of the investigating officers; the court’s allegedly improper comment regarding the voluntariness of certain custodial statements, the challenged comment having been made in the course of the jury charge; the admission into evidence of Ms. Harden’s letter to Moore; and the court’s permitting Moore’s and Harden’s letters to go out with the jury. Held:

1. Scrutiny of the trial transcript reveals that the challenged testimony was cumulative of statements previously made by defendant/ appellant and was therefore harmless. Moreover, the court gave curative instructions to the jurors. We conclude that it was highly probable that the testimony did not contribute to the verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

2. In Weaver v. State, 67 Ga. App. 692 (21 SE2d 542) (1942), appellant, who had been convicted of involuntary manslaughter, enumerated as error certain language employed by the court in a jury instruction on accident. This court held that, because “the theory of accident was not involved under this record, ... we fail to see how the jury could have been confused or prejudiced to the harm of the defendant because of the erroneous charge and the inapplicable charge on the law involving accident when it was not an issue in the case . . . ‘An irrelevant charge will not cause a new trial, where it does not prejudice any right of the parties and is not likely to mislead the jury from the true issues of the case.’ ” Id. at 696, 697. Accord Long v. Gilbert, 133 Ga. 691 (66 SE 894) (1909); Davis v. State, 167 Ga. App. 70 (307 SE2d 272) (1983).

In the instant case the voluntariness of appellant’s statement was not an issue; therefore, even if, arguendo, the jury charge was erroneous, it “was surplusage and . . . unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal.” Davis v. State, supra at 702. Moreover, even had the jury charge been error, we find sufficient competent evidence to authorize the rational trier of fact to find appellant guilty as charged, so that it is highly probable that the challenged language did not contribute to the conviction. Johnson v. State, supra. Dean v. State, 168 Ga. App. 172 (308 SE2d 434) (1983), cited by appellant, is distinguishable on its facts and does not support appellant’s contention. This enumeration has no merit.

Decided June 7, 1989

Rehearing denied June 20, 1989

Derek H. Jones, for appellant.

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

3. Appellant’s third and fourth assignments of error are also without merit. The substitution of an exact copy for an original letter was in compliance with the “best evidence” rule, as provided in OCGA § 24-5-4 (a). Further, Georgia law permits letters admitted into evidence to go out with the jury. Vinyard v. State, 177 Ga. App. 188 (338 SE2d 766) (1985); Rudulph v. State, 16 Ga. App. 353 (85 SE 365) (1915); but see the dissenting opinion in Vinyard, supra at 191-193.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0468.
    WILLIAMS v. THE STATE.
    (383 SE2d 344)
   Benham, Judge.

Appellant was convicted of armed robbery. On appeal, she raises 11 enumerations of error. Finding no error, we affirm the judgment of conviction.

1. Four of appellant’s enumerations involve the general grounds. Reviewing the facts in the light most favorable to the State, we conclude that the jury was authorized to find that appellant was guilty beyond a reasonable doubt of armed robbery. Trial testimony revealed that appellant, Jennifer Williams, was a former employee of a Primo’s Pizza restaurant in Clayton County, Georgia; that she called the restaurant and ordered two pizzas to be delivered to a Forest Park address; that she specified that the delivery was to be made to the back door, and asked that, contrary to the usual delivery policy, the delivery person bring change for a $50 dollar bill with him. The store manager agreed to make that exception to company policy because he verified that appellant was a former store employee. After his first two attempts to deliver the pizza were unsuccessful because no one would answer the back door when he arrived, Mr. Ray, the delivery man/victim, returned to the restaurant and was told that appellant had called again, asking for the delivery man to return with the pizzas. When Ray arrived, appellant opened the back door and explained that the reason she had not responded earlier was that she had been in the bathroom. Ray put the pizzas and the money down on the porch steps, and then a man grabbed him from behind, placed a six-inch knife to his throat, and demanded that Ray give him the money or he would kill him. Ray told him the money was on top of the pizzas, and the man took the money. Appellant then called the police. Ray identified appellant as being a former employee and the one who answered the door when he was assaulted. The evidence was sufficient to support the denial of appellant’s motion for a directed verdict of acquittal and the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Byram v. State, 189 Ga. App. 627 (9) (376 SE2d 909) (1988).

2. Appellant contends that the trial court erred in denying her motion to suppress two Primo’s Pizza boxes and a delivery tag the police officers found at appellant’s residence, the address to which the victim delivered the pizzas. The bases for contesting the denial of the motion are that there was no valid consent to the search of the residence and that no warrant had been issued for such a search. A transcript of the hearing on the suppression motion was not included for transmittal to this court, but the trial court’s detailed order denying the motion summarizes the evidence offered by the investigating officers and appellant at the hearing. The trial court found that appellant’s version of what occurred “essentially did not dispute the testimony of detectives Borrero and Moorefield,” the officers in question. The trial court concluded that the investigating officers were summoned to appellant’s home because “she was, at that time, a crime victim. The visit to the home was to gain additional information on a suspect from the defendant . . . the officers informed [appellant] of their suspicions and gained her full consent to search the premises for a prowler. The evidence obtained by the officers was found during the course of the consent search and while the officers viewed the defendant as a victim.” In the absence of a transcript showing clear error, we must conclude that the proper consent was given for the search and the trial court did not err in denying appellant’s motion to suppress the fruits of that search. Strickland v. State, 153 Ga. App. 51 (1) (264 SE2d 540) (1980).

3. Another ruling asserted as reversible error is that the trial court allowed Detective Moorefield to testify even though his name had not been included on the list of witnesses provided to appellant in accordance with OCGA § 17-7-110. When appellant raised her objection, the prosecuting attorney stated that the omission of the witness’ name had been called to defense counsel’s attention a month before trial; that the witness had testified at the suppression hearing, and that appellant’s trial counsel had cross-examined him at that time. We find that the purpose of the statute was not thwarted and that appellant was not harmed by the trial court’s allowing the detective to testify. Logan v. State, 170 Ga. App. 809 (318 SE2d 516) (1984). Appellant’s reliance on Allison v. State, 256 Ga. 851 (8) (353 SE2d 805) (1987), is misplaced, as that case is distinguishable on its facts.

Decided June 1, 1989

Rehearing denied June 20, 1989.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

4. The remainder of appellant’s enumerations involve the trial court’s instructions to the jury. Appellant argues that the trial court’s refusal to instruct the jury about the concept of lesser included offenses and its refusal to charge on the lesser included offenses of armed robbery, i.e., robbery by intimidation, by sudden snatching, and theft, constituted reversible error. We disagree. “[A] charge on the included offense was not required where the uncontradicted evidence showed completion of the offense of armed robbery. [Cit.]” Kirkland v. State, 173 Ga. App. 687 (2) (327 SE2d 808) (1985). The same analysis applies to the trial court’s failure to charge on the lesser included offenses of conspiracy and criminal attempt to commit armed robbery. Byram v. State, supra, Division 3; Kirkland, supra. The trial court properly refused to give appellant’s charge regarding abandonment of the criminal enterprise. Assuming for the sake of argument that appellant’s phone call to the police manifested a voluntary and complete renunciation of the criminal purpose, the uncontradicted evidence showed that the crime had already been completed by the time appellant called the police. The evidence was insufficient to require a charge on abandonment. OCGA § 16-4-5; Joiner v. State, 147 Ga. App. 526 (2) (249 SE2d 335) (1978). Appellant’s final challenge to the trial court’s jury charge, that the failure to charge that a confession must be corroborated, has no merit. The trial court charged the direct sentence of the Code section in question, OCGA § 24-3-53, and appellant did not request that the second sentence be included. Moreover, while appellant’s statement was not a confession but an admission and as such did not need corroboration, it was “in any event, amply corroborated by other evidence. . . .” Byram v. State, supra, Division 7.

Judgment affirmed.

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


text:
    76387. 76388.
    HARVEY FREEMAN & SONS, INC. v. STANLEY et al. HARVEY FREEMAN & SONS, INC. v. RIVERS et al.
    (384 SE2d 682)
    Decided June 20, 1989.

      R. Chris Irwin & Associates, R. Chris Irwin, Kathleen M. Pacious, for appellant.

      Calabro, Vogel & Jennette, Michael M. Catabro, James R. Vogel, Larry F. Jennette, Jr., Long, Weinberg, Ansley & Wheeler, Marvin A. Devlin, for appellees.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been affirmed in part and reversed in part by the Supreme Court, Harvey Freeman & Sons v. Stanley, 259 Ga. 233 (378 SE2d 857) (1989), our decision in Harvey Freeman & Sons v. Stanley, 189 Ga. App. 256 (375 SE2d 261) (1988), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0438.
    ADAMS v. THE STATE.
    (383 SE2d 378)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of bribery, trafficking in cocaine, and possession of marijuana. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

The sole enumeration is that the trial court erred in its denial of appellant’s motion to suppress the cocaine and marijuana. The contraband was found in appellant’s residence during a search which was conducted pursuant to a warrant. The contention is that the supporting affidavit was insufficient to authorize the magistrate’s issuance of a warrant to search appellant’s residence.

Assuming without deciding that the affidavit did not provide the issuing magistrate with probable cause to believe that contraband would be found in appellant’s residence, the exclusionary rule has nevertheless been “ ‘modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’ ” United States v. Leon, 468 U. S. 897, 905 (104 SC 3405, 82 LE2d 677) (1984). “It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination. . . .” United States v. Leon, supra at 921. “ ‘[A] warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ [Cit.]” United States v. Leon, supra at 922. “In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon, supra at 926.

There are no allegations that, in issuing the warrant to search appellant’s residence, the magistrate abandoned his detached and neutral role. There is no evidence that the affiant was dishonest or reckless in preparing the affidavit or that he could not have harbored an objectively reasonable belief in the existence of probable cause to search appellant’s residence. “[T]he [officer’s] reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.” United States v. Leon, supra at 926. The trial court correctly denied appellant’s motion to suppress.

Judgments affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur, although the affidavit in this case, and the officer’s reliance on the warrant issued pursuant to it, reach the outer limits of United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984). The affidavit seeks a search warrant for “the residence of ‘Danny Boy’ Adams” at a specific address and states the following “facts” to show probable cause for the magistrate to believe that cocaine is then in the residence: “This investigator has received information from a reliable, confidential informer that has been reliable on several occasions in the past. Informer states that he has seen drugs at said location on several occasions. That the above (person) is a known drug dealer in said substance.”

“In determining whether to issue a search warrant, ‘(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud(ing)” that probable cause existed.’ Illinois v. Gates, 462 U. S. 213, 238-239 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).” Futch v. State, 178 Ga. App. 115, 116 (342 SE2d 493) (1986). The reviewing court must “determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 2086, 80 LE2d 721) (1984). (Emphasis supplied.)

The statements in the affidavit are to a large measure conclusions and opinions, not facts. The conclusory facts are not substantiated. How does the officer know that the informer is reliable? How has he proved to be reliable? What led the informer to conclude that he had seen drugs on the premises, i.e., what did he see? When did he see drugs there? Was it recently, so that the magistrate could conclude that they were still there or others had been brought in as part of a continuing supply? (See Caffo v. State, 247 Ga. 751, 755 (279 SE2d 678) (1981); Shrader v. State 159 Ga. App. 522, 523, 524 (284 SE2d 37) (1981)). What facts led to the conclusory fact that Adams was a drug dealer?

Under Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), “ ‘ “(P)robable cause means . . . reasonable grounds, and is that apparent state of facts which seems to exist after reasonable and proper inquiry.” [Cits.]’ State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).” Mize v. State, 173 Ga. App. 327, 328 (1) (326 SE2d 782) (1985).

Thus it would appear that the affidavit is substantially deficient. It does not “ ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” United States v. Leon, supra at 915. Compare State v. Farmer, 177 Ga. App. 18 (338 SE2d 489) (1985), which involved an affidavit containing more than in this case but was still viewed as insufficient by three judges. On the other hand, compare the affidavit in Futch, supra.

The purpose of the exclusionary rule as a sanction is not to teach magistrates, however, but rather to deter unlawful police conduct, as the Court in Leon reemphasized. Supra at 919. Thus the question is whether the officer’s reliance is “objectively reasonable, . . . and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, supra at 922-923. In addition to the instances cited in the majority opinion, Leon holds that the good faith exception does not apply in yet other circumstances, such as when an officer relies “on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Leon, supra at 923.

The affidavit here comes very close to being “so lacking” that the trained eight-year veteran law enforcement investigator who prepared and presented it, not even in a hurried situation (it was not executed for ten days), could be concluded to recognize its “bare bones” deficiency so as to render his reliance not “objectively reasonable.” As our Supreme Court has said: “The good-faith exception to the exclusionary rule occurs when an officer makes a judgmental error concerning the existence of facts sufficient to constitute probable cause if the officer has forthrightly set out the facts in an affidavit for a search warrant.” State v. Stringer, 258 Ga. 605, 606 (372 SE2d 426) (1988).

Decided June 20, 1989.

Westbrook & Vines, William J. Westbrook, for appellant.

Ralph Van Pelt, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

The facts which the officer testified to at the suppression hearing demonstrated that he had substantial evidence of probable cause, but he chose not to relate it to the magistrate, inching close to the “rubber stamp” situation which also disallows the good faith exception. Leon, supra at 914, 923.

However, since under the Fourth Amendment as construed by the United States Supreme Court, searches pursuant to warrant are to be given great deference, Leon, supra at 914, 922, I agree that the good faith exception can be applied. The officer’s error in nearly usurping the magistrate’s role by not presenting the facts constituting probable cause, and relying on the resulting warrant, does not require as a matter of law the exclusion of the evidence from the factfinder’s determination of defendant’s guilt or innocence.

It should be pointed out that the State Constitution and state law are not involved. See State v. Stephens, 252 Ga. 181, 187, n. 1 (311 SE2d 823) (1984).

       See United States v. Leon, supra at 923, n. 24.


author: Birdsong, Judge.

text:
    A89A0689.
    CHARANIA v. RAMADA INNS, INC.
    (383 SE2d 603)
   Birdsong, Judge.

Ramada Inns, Inc., sued Firoz Charania for default and infringement on a franchise agreement and on a personal guaranty of payment of franchise fees. He gave his formal guaranty, reciting that he did so “as an inducement” to Ramada to grant him the Ramada franchise rights of the hotel at Six Flags Over Georgia.

In the normal course, Ramada deemed the agreement to be temporary until it approved Charania’s application or until the agreement was sooner terminated for other reasons such as failure to adhere to Ramada’s standards of operation. Charania operated the hotel as Ramada Inn from March 1986, until October 1986, which Ramada calls “the busiest season of the year” at the Six Flags amusement park. In the meantime in April, a corporation, Esmail International, Inc., had bought the hotel real estate. Charania used the name, trademark and signage of Ramada Inn even after the franchise agreement was terminated by Ramada for Charania’s failure to pay fees. He has never paid for his use of the Ramada Inn franchise and trademark.

The jury returned a verdict for Ramada for $124,339.16 damages (fees) accrued before termination of the franchise and $6,351.67 damages for infringement after termination, plus attorney fees of $25,000. On appeal, Charania contends only that the trial court erred in denying him, individually, a directed verdict. Held:

Charania argues that there “never was a contract” because Ramada never signed the instrument and the franchise application. Charania admits without qualification that he personally signed the agreement (for franchise use) and guaranty on March 20, 1986. By this agreement he had use of Ramada franchise privileges for more than six months until his failure to pay fees and adhere to Ramada standards caused Ramada to terminate the franchise on September 10, 1986.

Charania is in the insupportable position of contending “no agreement existed,” while claiming all advantage of an executed agreement which he signed and for which he gave a guaranty “as an inducement.” The operative maxim here is that to be enforceable a contract must be signed by the party sought to be bound. See Nationwide Mut. Ins. Co. v. Teal, 112 Ga. App. 236 (144 SE2d 567). Ramada assented to the contract and fully performed its obligations by allowing use of its franchise rights, trade name and trademarks. See Cooper v. G. E. Constr. Co., 116 Ga. App. 690 (158 SE2d 305). Enforcement of the agreement against Ramada is not in issue. The party sought to be bound is Charania. He did sign the agreement and guaranty. There was every essential and requisite of a valid contract for his use of franchise. See OCGA § 13-3-1; Cooper, supra.

Although Charania calls the document just a “photocopy” of the permanent franchise agreement for which he sought approval, which copy was mailed to him “just so there [would] be no misunderstanding as to what will be entered into,” it was clearly a grant of franchise privilege which Charania, after signing a guaranty which stated that it was given “as an inducement,” then proceeded to use. A May 9, 1986 letter to the Esmail Corporation from Ramada, giving temporary franchise license to the corporation (which now owned the property) does not alter Charania’s obligation, for it did not substitute the corporation as franchisee and relieve Charania. It certainly did not prevent Charania’s taking full advantage of the franchise. Indeed, when this lawsuit was filed in October 1986, Charania was still using Ramada signage and trademarks, even though Ramada had notified him in September that the franchise agreement was terminated. The fact that it was terminated is certainly no reason to say it never existed, as Charania speciously suggests.

As for Charania’s liability on his signed guaranty,. even if he signed it on behalf of and for use of another suggested principal (the corporation, Esmail), see OCGA § 10-7-1, he is principally and primarily liable on this guaranty as bound debtor, and not merely as surety for someone else.

We find no argument of merit in this appeal. Charania contends someone else (the corporation Esmail) owes something to Ramada, and that may be; but he owes as well, primarily and as principal. The verdict of the jury reflected the true position of the parties; Charania was not, as he claims, entitled to be personally excused from the suit by directed verdict.

Decided June 20, 1989.

Simmons, Ballard & Thompson, Steven H. Ballard, for appellant.

Harmon, Smith & Bridges, Nolan B. Harmon, Marian B. Wilbanks, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    A89A0770.
    GEORGIA REAL ESTATE COMMISSION v. SYFAN et al.
    (383 SE2d 605)
   Carley, Chief Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee’s real estate license was revoked in 1975. In 1987,.he was considering his reentry into the real estate business and, to that end, he placed a telephone call to the appellant Georgia Real Estate Commission (Commission). According to appellee, he disclosed in that conversation that his license had been revoked in 1975, but was told by an unidentified Commission employee that there was “nothing on the record to indicate that.” The Commission then sent appellee an application for the reinstatement of his license. This application provided a space for the applicant to certify, by his signature, “that the information contained in this application is true and correct and that I have not been convicted of a crime or disciplined by a licensing agency (if you have, attach details).” (Emphasis supplied.) Appellee signed the application, but did not disclose either the fact or the details of the 1975 revocation of his license. As the result of this application, appellee was reissued a license. Subsequently, the Commission ascertained that it had misfiled the record of appellee’s 1975 license revocation. When this was discovered, the Commission began an investigation into the reinstatement of appellee’s license. This investigation culminated in the Commission’s revocation of appellee’s reinstated license. On appeal to the superior court, the Commission’s decision to revoke appellee’s license was reversed. This court granted the Commission’s application for a discretionary appeal from the order of the superior court.

1. Appellee’s violation of OCGA § 43-40-15 (c) was among the grounds cited by the Commission for its revocation of his license. That statute provides: “Where an applicant or licensee has made a false statement of material fact on his application . . . , such action may, in itself, be a sufficient ground for the refusal, suspension, or revocation of the license.” (Emphasis supplied.) Appellee’s application clearly contained an erroneous or .untrue statement of material fact, insofar as it indicated that he had never previously been disciplined by a licensing agency. However, “falsity . . . implies] ‘more than erroneous or untrue.’ [Cits.]” Abercrombie v. Hair, 185 Ga. 728, 734 (4) (196 SE 447) (1938). “ ‘In jurisprudence, “false” and “falsely” are [most often] used to characterize a wrongful or criminal act, such as involves an error or untruth, intentionally or knowingly put forward'.’ [Cit.]” (Emphasis supplied.) Laughlin v. Bon Air Hotel, 85 Ga. App. 43, 46 (2) (68 SE2d 186) (1951). See also Georgia Real Estate Comm. v. James, 152 Ga. App. 193, 195 (262 SE2d 531) (1979) (holding that “substantial misrepresentation” as employed in OCGA § 43-40-25 (a) (2), is analogous to fraud and requires an “intention to mislead.”) Accordingly, the issue presented for resolution is whether there was “any evidence” that appellee had intentionally or knowingly put forward the application containing the false statement that he had not been disciplined by a licensing agency. If there was, the superior court erred in reversing the Commission even if there was evidence to the contrary. The resolution of conflicts in the evidence is for the Commission, sitting as the trior of fact, and not for the superior court, sitting as an appellate tribunal. See Hall v. Ault, 240 Ga. 585 (242 SE2d 101) (1978).

“Fraud is of itself subtle, and slight circumstances may be sufficient to carry conviction of its existence. [Cit.]” Rose Mill Homes v. Michel, 155 Ga. App. 808, 810 (2) (273 SE2d 211) (1980). “ ‘The intention to deceive and the immoral element are supplied by knowledge of the falsity of the representations when they were made.’ [Cit.]” Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 859 (3) (294 SE2d 533) (1983). Appellee obviously knew at the time he submitted the application that his license had previously been revoked. The application that appellee was asked to submit clearly and unambiguously asked him to disclose whether he had been disciplined by a licensing agency and, if so, to supply the details. Notwithstanding appellee’s knowledge and the clear and unambiguous directive on the application, he nevertheless signed the application without attaching the details of his 1975 license revocation, thereby falsely certifying to the Commission that he had never been disciplined. Nothing in the purported telephone conversation with the unidentified Commission employee would demand a finding that appellee had been misled into honestly believing that his 1975 license revocation was no longer a relevant consideration. According to appellee, he had been told only that the Commission’s records did not reflect his previous revocation. The application did not qualify its directive and ask that an applicant acknowledge and detail only those disciplinary actions which may have been reflected in the Commission’s files. To the contrary, the application’s directive was unqualified as to the disclosure of previous disciplinary actions and, as such, clearly contemplated that an applicant acknowledge and detail any and all disciplinary actions, including those which, for whatever reasons, the Commission may have been unable to verify by immediate resort to its own files. Since nothing in the telephone conversation or application authorized the conclusion that the mere absence of a notation in an applicant’s official file obviated his responsibility to disclose relevant information requested by the Commission, the Commission was authorized to find that appellee gave a “palpably untrue answer to an unambiguous question with the knowledge that it [was] false.” Life & Cas. Co. of Tenn. v. Gaines, 59 Ga. App. 545, 547 (5) (2 SE2d 153) (1939). “ ‘An intention to deceive, or a fraudulent intent in the legal acceptation of the term, depends upon the knowledge or belief respecting the falsehood of the statement, and not upon the actual dishonesty of purpose in making the statement.’ [Cit.]” Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799, 808 (2) (43 SE 79) (1902). It follows that the Commission was authorized to find that appellee had made a false statement of material fact on his application and that he had, therefore, violated OCGA § 43-40-15 (c).

2. Appellee urges that the Commission should nevertheless be es-topped to revoke his license because it was the Commission that misfiled his record and a Commission employee who advised him that there was no record of that revocation.

One who claims the benefit of an estoppel must demonstrate his “lack of knowledge of the truth as to the facts in question. . . .” Bell v. Studdard, 220 Ga. 756, 760 (4a) (141 SE2d 536) (1965). Notwithstanding the Commission’s faulty record-keeping and the telephone conversation with the Commission employee, appellee knew the truth as to the fact in question, which was that his license had been revoked in 1975. Moreover, as discussed previously, the evidence did not demand a finding that it was reasonable for appellee to rely upon the mere absence of records in the Commission’s file as the basis for failing to respond truthfully to the clear and unambiguous directive on the application. Without a showing of reasonable reliance, there can be no estoppel. See Walker v. Williams, 177 Ga. App. 830, 832 (341 SE2d 487) (1986). Additionally, after his receipt of the application, appellee made no effort to recontact the Commission to inquire whether his 1975 license revocation should be formally disclosed on the application notwithstanding the informal assurances that there was no official record of it. Had appellee done so and then been informed that there was no need to disclose the information, there might be a basis for urging an estoppel. However, appellee did not do so, and the evidence would not demand a finding that he exercised reasonable diligence in determining whether his 1975 license revocation should be disclosed. “ ‘[T]he party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence. . . .’ [Cits.]” (Emphasis in original.) Bachrodt Realty Corp. v. Walker, 237 Ga. 696, 697 (2) (229 SE2d 455) (1976).

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

Charles H. Hyatt, R. Thomas Jarrará, for appellees.

If appellee had disclosed the prior revocation of his license on his application for reinstatement, the Commission would presumably have launched an investigation at that time and determined whether, notwithstanding his prior disciplinary proceedings, appellee should nevertheless be reissued a license. Instead, appellee simply submitted a false application and the investigation was delayed until his 1975 license revocation was subsequently discovered by the Commission. Although the evidence would authorize the Commission to find that there were mitigating factors, it would not demand a finding of estop-pel against the Commission. “Revocation of the license, even after hearing evidence of mitigation, was within the [Commission’s discretion. [Cit.]” Land v. Ga. Real Estate Comm., 142 Ga. App. 860 (237 SE2d 243) (1977). The superior court erred in substituting its determination that, revocation of appellee’s license was not warranted for the Commission’s finding that the revocation was appropriate and justified.

Judgment reversed.

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


author: Sognier, Judge.

text:
    A89A0924.
    McKINNEY v. THE STATE.
    (383 SE2d 608)
   Sognier, Judge.

Bernard T. McKinney was convicted of possession of cocaine with intent to distribute, possession of marijuana, and obstruction of officers, and he appeals.

1. Appellant first enumerates as error the sufficiency of the evidence to support his conviction. Construing the evidence adduced at trial to support the verdict, the record reveals that on June 30, 1988, appellant was in an area of Valdosta known for drug activity when he was spotted by Sheriff’s Deputy Willie Richardson. Believing that his department had certain legal papers to serve on appellant, Richardson summoned Deputies Hunter and Tisdale to help serve the papers upon appellant. As soon as appellant noticed Tisdale emerge from his vehicle and point in his direction he began to run, and Tisdale and Hunter gave chase on foot. Richardson and Tisdale testified they observed a brown paper bag in appellant’s right hand while appellant was running, and that they observed appellant stuff the paper bag in some bushes along a canal. Richardson further testified he observed appellant pull a plastic bag out of his pocket and place it in some other bushes surrounding the canal.

After appellant was arrested, Richardson testified that he recovered the plastic bag without ever taking his eyes off it, and that it contained a substance later identified as “crack” cocaine. Tisdale testified he saw Special Agent Randall Kelley of the Lowndes/Valdosta Drug Unit recover the paper bag from the bushes at the same location at which he had seen appellant place it, and Kelley testified that the paper bag contained substances which were later identified as cocaine and marijuana and a quantity of empty plastic ziplock bags. Appellant denied having anything in his hand, possessing a plastic bag containing drugs, or disposing of anything in the bushes. He testified that he had fled when he saw the deputies only because he was on parole and was not supposed to be in the area.

Although appellant argues the testimony was in conflict, “ ‘[i]t is the function of the jury, not the appellate court, to determine the credibility of witnesses and weigh any conflicts in the evidence. The appellate court views the evidence in a light most favorable to the jury’s verdict after it has been rendered. (Cits.)’ [Cit.]” Anfield v. State, 188 Ga. App. 345, 346 (1) (373 SE2d 51) (1988). The jury’s verdict indicates they weighed the evidence and made credibility decisions unfavorable to appellant. It was in their province to do so, and we find the evidence at trial sufficient to support the convictions under the standards enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by refusing to give his requested charge regarding the admission of evidence of similar transactions. The charge requested, however, is not included in the record on appeal. “[Appellant] has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. [Cit.]” Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549) (1980). Accordingly, since we have not been provided with the text of the requested charge, we will not address this enumeration. See generally Williams v. State, 188 Ga. App. 496, 498-499 (3) (373 SE2d 281) (1988).

Judgment affirmed.

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

Decided June 20, 1989.

Coleman, Kitchens, Wolfson & Smith, Robert D. Cullifer, for appellant.

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