text:
    A90A0299.
    BRANNAN v. THE STATE.
    (394 SE2d 562)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of driving under the influence in violation of OCGA § 40-6-391 (a) (4). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The enumeration of error which addresses the trial court’s denial of a motion to quash the accusation is controlled adversely to appellant’s contentions by the holding in Fletcher v. State, 157 Ga. App. 707 (2) (278 SE2d 444) (1981).

2. The trial court’s denial of appellant’s motion in limine to exclude the results of an intoximeter test of his breath is enumerated as error. We note at the outset that our consideration of this enumeration is confined to the evidence that was adduced in the hearing on the motion in limine and that such evidence as may have been adduced during the subsequent trial will not be considered.

Contrary to appellant’s assertions, the evidence adduced in the hearing on the motion in limine did not show that he had requested, but was denied the opportunity to have an additional test conducted by a qualified person of his own choosing. The evidence showed only that appellant had requested that the officer conduct another intoximeter test and that, although the officer had agreed to do so, appellant never availed himself of the opportunity to be retested.

With regard to appellant’s challenge to the reliability of the results of the test, his expert’s testimony on that issue was irrelevant in the context of the motion in limine. The admissibility of test results is controlled by the provisions of OCGA § 40-6-392, and, so long as a test has been conducted in compliance with those statutory provisions, an expert’s opinion which questions the reliability of the results of that test would have no bearing on the admissibility of those results into evidence. State v. Richardson, 186 Ga. App. 888 (368 SE2d 825) (1988). A review of the hearing on appellant’s motion in limine clearly shows that the trial court did not err in denying the motion. See generally Fletcher v. State, supra at 707 (1).

3. The results of the intoximeter test showed that appellant’s blood-alcohol level was 0.18 percent. The credibility of the attack by appellant’s expert upon the reliability of these results was for the jury. See Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989). Compare State v. Richardson, supra. The evidence, viewed most favorably for the State, was more than sufficient to authorize a rational trior of fact to find that appellant had violated OCGA § 40-6-391 (a) (4) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, appellant’s enumeration of the general grounds is without merit.

4. The trial court did not err in charging the jury on the definition of “alcohol concentration” contained in OCGA § 40-1-1 (1). Appellant was charged with a crime wherein the “alcohol concentration” of his blood was an element of the offense. Accordingly, the trial court was certainly authorized to charge the jury on the statutory definition of “alcohol concentration.” See generally Blount v. State, 172 Ga. App. 120, 126 (17) (322 SE2d 323) (1984).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.

Decided May 1, 1990

Rehearing denied May 22, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

Daniel W. Lee, Solicitor, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0512.
    TAYLOR et al. v. TAYLOR.
    (394 SE2d 628)
   McMurray, Presiding Judge.

On September 18, 1987, Home Federal Savings & Loan Association of Rome (“Home Federal”) issued a “Jumbo Certificate” in the amount of $100,000 to Donald H. Taylor or Elizabeth Ann Taylor as joint tenants with the right of survivorship. Thereafter, on October 19, 1987, and again on December 11,1987, Donald H. Taylor executed promissory notes, with a face value totalling $100,000, made payable to Home Federal. To secure payment of the notes, Mr. Taylor granted Home Federal a security interest in the Jumbo Certificate.

Mr. Taylor died intestate on February 23, 1988. He was survived by Elizabeth Ann Taylor, his wife, and two adult children of a former marriage, Donald Hartley Taylor, Jr., and Rhonda Lynn Taylor.

On March 22, 1988, using the proceeds of the Jumbo Certificate, Mrs. Taylor paid Home Federal a total of $102,738.02, representing the face value of the promissory notes plus interest. In turn, Home Federal assigned the promissory notes to Mrs. Taylor, writing on each one: “For value received . . . the within note is hereby transferred to Elizabeth Ann Taylor without recourse on us.” These assignments were signed by an authorized representative of Home Federal.

Thereafter, Mrs. Taylor claimed that, as assignee of the promissory notes, she was entitled to collect the full value of the promissory notes from Mr. Taylor’s estate. Donald Hartley Taylor, Jr., and Rhonda Lynn Taylor, disputed Mrs. Taylor’s claim, arguing that Mrs. Taylor could not have used the proceeds of the Jumbo Certificate to pay the promissory notes because the certificate had been pledged by Mr. Taylor as collateral for the notes. They also argued that Mrs. Taylor could not collect the notes because she paid them as a “mere volunteer” without any assignment.

To resolve the dispute, Mrs. Taylor, plaintiff, brought this declaratory judgment action against Donald Hartley Taylor, Jr., and Rhonda Lynn Hartley, defendants, in the Superior Court of Floyd County. This appeal is from the grant of plaintiff’s motion for summary judgment. Held:

1. The parties agree that a joint tenancy with the right of survivorship was created by the certificate of deposit. It follows that immediately upon the death of Mr. Taylor, plaintiff, the surviving joint tenant, owned the entire certificate of deposit. Spurlock v. Commercial Banking Co., 138 Ga. App. 892, 898 (227 SE2d 790), aff’d Commercial Banking Co. v. Spurlock, 238 Ga. 123 (231 SE2d 748). Inasmuch as the security interest granted to Home Federal encumbered only Mr. Taylor’s interest in the certificate of deposit, plaintiff’s right of survivorship was not defeated by the security interest. Spurlock v. Commercial Banking Co., 138 Ga. App. 892, 899, supra. Thus, the proceeds of the certificate of deposit were vested entirely in plaintiff upon the death of her husband and she could use the proceeds in any manner she chose.

Decided May 22, 1990.

Barkley & Garner, Richard E. Barnes, for appellants.

Roy N. Newman, for appellee.

2. Relying upon Graves v. Carter, 208 Ga. 5, 6 (3) (64 SE2d 450), defendants contend plaintiff cannot collect the promissory notes because she was a “mere volunteer” who paid the notes “without any assignment or agreement for subrogation.” This contention is devoid of merit. As noted above, the promissory notes were transferred to plaintiff by Home Federal. Accordingly, plaintiff is entitled to collect the promissory notes as Home Federal’s assignee. See generally Southern Mut. Life Ins. Assn. v. Durdin, 132 Ga. 495 (64 SE 264).

3. The trial court did not err in granting plaintiff’s motion for summary judgment.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    A90A0473.
    CLIFTON v. GILLIS.
    (394 SE2d 582)
   Birdsong, Judge.

Clifton appeals from an adverse judgment on Gillis’ claims for conversion of Gillis’ property, malicious prosecution, and malicious use and abuse of process. The trial court set off $300 owed by Gillis and awarded Gillis $2,330 in actual damages and $3,000 in punitive damages.

No transcript of the proceedings was filed with the record on appeal. The record shows this appeal arises from the second trial of the case. Clifton failed to appear in the first trial, and Gillis was awarded judgment for $2,330 in actual damages and $7,000 in punitive damages.

Subsequently, Clifton filed for bankruptcy, and later he was granted a new trial because he had not been informed of the date of the first trial. Thereafter, the bankruptcy court authorized Gillis to pursue this action because it found that Clifton’s actions were wilful and malicious and any resulting damages were not dischargeable. At the new trial, Clifton appeared pro se and the trial court again found for Gillis. Nothing in the record on appeal reflects that prior to the trial Clifton requested a continuance to obtain or consult with counsel.

Thereafter, Clifton again moved for a new trial asserting that the trial court erred by not allowing him to “seek the assistance of new counsel” and because he had a new witness of whom he was unaware at the time of trial. After a hearing, the trial court denied the motion. No transcript of this hearing is contained in the record on appeal. Clifton now appeals because he contends the trial court erred by not granting a continuance so he could secure replacement counsel, by not inquiring about the availability of the new witness when the court learned of the new witness, and by denying the motion for new trial. Held:

1. Whether to grant a continuance is within the sound discretion of the trial court and without a showing that the discretion was abused, the trial court’s decision will not be reversed. OCGA § 9-10-167 (a): Davis v. Barnes, 158 Ga. App. 89, 90 (279 SE2d 330). Further, Clifton has the burden of showing harmful error in the record, and he has failed to meet his burden. See Payton v. Green, 179 Ga. App. 438, 440 (346 SE2d 884). The record contains no evidence showing the trial court abused its discretion, and factual assertions in briefs, not supported by evidence of record, cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223). Clifton’s affidavit, submitted in support of his motion for new trial, is not sufficient to establish that the trial court abused its discretion. Clifton was required to show that he used diligence (OCGA § 9-10-166), and merely reciting that one exercised due diligence is not sufficient to establish either that one did so, or that the trial court was provided sufficient facts to establish that the trial court abused its discretion in finding otherwise. As there is no transcript of either the trial or the hearing on the motion for new trial showing that the trial court abused its discretion, we must assume that the trial court’s ruling was correct. Wimberly v. Karp, 185 Ga. App. 571, 573 (365 SE2d 131); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 304-305 (265 SE2d 107).

2. Clifton also alleges the trial court erred by not inquiring about the availability of a witness. His brief shows that Clifton is contesting the scope of the inquiry conducted by the trial court during the hearing on the motion for new trial. Since Clifton had the burden on this issue (James v. State, 115 Ga. App. 822, 823 (156 SE2d 183)), it was his responsibility to present sufficient evidence to the trial court to support his motion, and it was not the trial court’s responsibility to develop the evidence for him. There was no error here. Moreover, nothing in the record on appeal suggests that he met his burden under OCGA § 5-5-23 for granting a new trial based on newly discovered evidence. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792); Westbrook v. State, 186 Ga. App. 493, 497 (368 SE2d 131). In particular, there was no affidavit from the newly discovered witness showing what his testimony would have been. See Head v. State, 160 Ga. App. 4, 8 (285 SE2d 735).

Decided May 7, 1990

Rehearing denied May 23, 1990

Sage Brown, for appellant.

Gerald L. Olding, for appellee.

3. Finally, Clifton enumerates as error that the trial court erroneously denied his motion for a new trial. The only basis for this contention, not discussed above, is a reference to OCGA § 5-5-25 (“Other grounds”), but the record shows that the only grounds for the motion asserted in the trial court were “not allowing the [p]laintiff to seek the assistance of a new counsel” and “[p]laintiff has a new witness, which [p]laintiff was not aware of at the time of the trial.” In view of our disposition of these enumerations in Divisions 1 and 2, the trial court did not err by denying the motion for new trial. Further, we could not consider the other ground under OCGA § 5-5-25, whatever it may be, since it is being raised for the first time on appeal. Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550-551 (340 SE2d 207); see also MacDonald v. MacDonald, 156 Ga. App. 565, 566 (275 SE2d 142).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A0570, A90A0571.
    KOWALCZK v. THE STATE (two cases).
    (394 SE2d 594)
   Banke, Presiding Judge.

At a single trial, the appellant was found guilty on two separate indictments charging him with shoplifting. He brings these appeals from the denial of his separate motions for new trial on each conviction. Held:

1. The appellant contends that the trial court erred in denying his motion to sever the two charges. Generally, “ ‘where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.’ ” Williams v. State, 178 Ga. App. 581, 584 (344 SE2d 247) (1986). However, “ ‘[w]here two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses.’ [Cit.]” Ridgeway v. State, 174 Ga. App. 663, 664 (2) (330 SE2d 916) (1985).

The evidence in support of the first of the two shoplifting charges showed that the appellant had engaged the manager of a hardware store in a discussion about some gardening equipment while an accomplice concealed tools and other store merchandise under his coat and left with them. The evidence offered in support of the second charge showed that the appellant had concealed several clocks and CD players in a storage box while inside a Wal-Mart store and had then left the store after paying only for the box itself. The state contends that these offenses were related in that they occurred in the same county within two months of each other. However, we do not believe these factors are sufficient in and of themselves to establish a connection between the two offenses; and in the absence of any similarity with respect to such factors as modus operandi or the type of merchandise taken, we must conclude that the indictments were joined for trial solely because the offense charged in each instance was shoplifting. Accordingly, we hold that the appellant’s motion for severance should have been granted. See Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286) (1981).

2. The appellant contends that he was entitled to a directed verdict of acquittal on one of the two charges because the evidence failed to establish the value of the merchandise taken. Initially, we note that even had such a failure of proof occurred, it would not have entitled the appellant to an acquittal but would have gone merely to the issue of punishment. See OCGA § 16-8-14 (b). However, no such failure of proof in fact occurred. Value is established in a shoplifting case by showing “the actual retail price of the property at the time and place of the offense.” OCGA § 16-8-14 (c). The manager of the store in question identified photographs of the stolen merchandise at trial and disclosed the actual retail price of each of the items which had been recovered from the appellant.

3. The appellant contends that the trial court erred in denying his request for funds with which to hire an expert to support his defense that he was incapable of forming the criminal intent necessary to commit a crime because he suffered from “chronic pain.” We are aware of no authority for the existence of such a defense, and the appellant has provided us with none. There was no allegation that the appellant lacked the mental capacity to distinguish between right and wrong, or to understand the nature of the charges against him, or to assist in his own defense. This enumeration of error is accordingly without merit.

Decided May 11, 1990

Rehearing denied May 23, 1990

D. Warren Auld, for appellant.

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

Judgments reversed.

Birdsong and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A90A0062.
    GASKINS v. TAYLOR.
    (394 SE2d 629)
   Cooper, Judge.

Appellant brought an action against appellee after appellant’s truck was struck in the rear by an automobile driven by appellee. This appeal is from a jury verdict in favor of appellee.

Appellee’s car was directly behind appellant’s truck as both vehicles approached an intersection. Appellant testified that as he approached the intersection he saw a car travelling at a high speed toward the intersection; that it seemed like the car was not going to stop so he decreased his speed; that he looked in his rear view mirror and saw appellee’s vehicle, which looked like it was going to rear end him; that he changed gears to get some momentum and appellee’s car collided with his. Appellee testified that his car had been behind appellant’s truck for several blocks; that as he approached the intersection he looked to his left and saw a speeding vehicle approaching which looked like it might not stop at the intersection; that he took his foot off the accelerator and watched this vehicle; that when he turned back to look in front of him he noticed that appellant had also decelerated; that he hit appellant’s truck in the rear.

1. Appellant first enumerates as error the trial court’s admission, over objection, of a policé officer’s testimony that in his opinion he doubted that appellant could have felt the impact of the collision. We find no error in the admission of this testimony. The officer was qualified by appellant as an expert in the area of accident investigation, and the testimony was within his area of expertise. Even if appellant had developed by further examination that the officer’s opinion was based on inadequate knowledge, the testimony was properly admitted. See Jones v. Ray, 159 Ga. App. 734 (4) (285 SE2d 42) (1981).

2. In his second enumeration of error, appellant contends that the trial court erred in charging the jury on legal accident. He argues that such a charge was not authorized by the evidence. We agree and reverse. Appellant’s testimony was that his belief that the car approaching the intersection would not stop caused him to slow his truck. Appellee’s testimony was that he was distracted by the vehicle approaching the intersection and that he took his attention away from the vehicle in front of him. Appellee further testified that he may have been following appellant’s truck too closely. Thus, the jury was authorized to find that the accident occurred because of appellee’s failure to maintain a proper lookout ahead or to maintain a safe distance between his car and appellant’s truck or appellant’s failure to give adequate warning that he was slowing his truck. “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983). Here, there was no evidence of accident as defined by Chadwick v. Miller, supra. Pelt v. Hutchinson, 170 Ga. App. 408 (1) (317 SE2d 217) (1984). Wilhite v. Tripp, 179 Ga. App. 428 (1) (346 SE2d 586) (1986), relied on by appellee, is distinguished because that case involved “peculiar circumstances” which authorized a finding that the collision was not the result of the negligence of either party. The facts in the case at bar being more similar to those in Pelt v. Hutchinson, supra, we conclude that the trial court erred in charging the jury on the defense of accident.

3. “Since the jury returned a verdict in favor of defendants, any error in charging the jury regarding nominal damages was harmless error.” Weathers v. Foote & Davies Transport Co., 189 Ga. App. 134 (2) (375 SE2d 97) (1988). Accordingly, appellant’s third enumeration of error is without merit.

4. The verdict first returned by the jury read as follows: “We, the jury, find the defendant guilty of accidental negligence.” The trial judge, after inquiring of the jury as to the meaning of their verdict, instructed the jury that if they found the collision was an “accident” the defendant could not be liable. After the foreman informed the judge that this was the intention of the jury, the judge directed the jury to amend the verdict to find for the defendant. The jury’s original verdict illustrates the confusion which can arise when the evidence does not warrant a charge on “legal accident.” However, because we found error in the giving of such charge in Division 2, the error alleged in appellant’s fourth enumeration of error is not likely to recur on retrial; therefore, we decline to address the issue.

Judgment reversed.

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

Decided May 23, 1990.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Hodges, William A. Erwin, Jr., Gardner, Willis, Sweat & Goldsmith, Gail P. Singleton, for appellee.


author: Pope, Judge.

text:
    A90A0305.
    ROLISON v. THE STATE.
    (394 SE2d 631)
   Pope, Judge.

Defendant Terry Gino Rolison was convicted of distributing cocaine in violation of the Georgia Controlled Substances Act. He appeals from the denial of his motion for new trial. We affirm.

1. Defendant challenges the portion of the trial court’s charge defining the offense of distributing a controlled substance on the ground that the charge as given did not conform to the indictment. The record shows that although the trial court recited portions of the Georgia Controlled Substances Act in defining the offense, the court immediately thereafter instructed the jury that it would be authorized to return a guilty verdict only if it found beyond a reasonable doubt that the defendant “did . . . distribute cocaine, a controlled substance, as charged in the indictment. . . .” (Emphasis supplied.)

Following the charge, the defendant objected on the basis that the trial court’s reference to the Code allowed the jury to convict the defendant in a manner other than that alleged in the indictment. Consequently, the trial court instructed the jury to disregard the portion of the definition of the offense taken from the Code and recharged only that portion declaring it to “be unlawful for any person to possess with intent to distribute any controlled substance, except as authorized in this law.” On appeal defendant maintains that this recharge was also at variance with the indictment, inasmuch as the indictment charged that defendant knowingly and with intent did “distribute” a controlled substance, and the court’s charge referred to “possession” with intent to distribute. We find no merit to this contention. “The charge, when considered in its entirety, fairly instructed the jurors that they could convict the defendant only of the offense with which he was charged in the indictment.” Lumpkin v. State, 249 Ga. 834, 836 (295 SE2d 86) (1982). See also Williams v. State, 185 Ga. App. 633 (1) (365 SE2d 491) (1988); Davis v. State, 184 Ga. App. 230 (2) (361 SE2d 229) (1987); Searcy v. State, 168 Ga. App. 233 (308 SE2d 621) (1) (1983); cf. Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978).

Decided May 23, 1990.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.

2. Defendant also contends the evidence was insufficient to convict him, and specifically challenges that portion of the evidence identifying him as the perpetrator of the offense. After careful review of the transcript, we find the evidence, including the testimony of the undercover agent identifying defendant as the person who sold him rock cocaine, was sufficient to enable a rational trier of fact to find defendant guilty of the offense charged beyond a reasonable doubt. See Gray v. State, 191 Ga. App. 135 (1) (381 SE2d 312) (1989).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs in judgment only in Division 1.


text:
    A90A0368.
    CONFETTI ATLANTA, LTD. et al. v. GRAY.
    (394 SE2d 632)
   Cooper, Judge.

We granted this interlocutory appeal to review the trial court’s denial of appellants’ motion for leave to file a third-party complaint.

Appellee was injured when he was run over by a truck driven by Jimmy Cooley (“Cooley”) in the parking lot of a nightclub owned and operated by appellants. Appellee brought a lawsuit against Cooley and appellants, alleging that appellants negligently and knowingly furnished alcoholic beverages to Cooley, a minor, who was in a state of intoxication and would soon be driving a vehicle, in violation of OCGA § 51-1-40; that appellants failed to provide adequate safety in the parking lot of their establishment; and that as a direct and proximate result of the joint and several negligence of appellants and Cooley, appellee suffered extensive injuries. Subsequently, appellee dismissed with prejudice the lawsuit against Cooley and appellants filed a motion for leave to file a third-party complaint, seeking to implead Cooley as a third-party defendant on the ground that if appellants were found liable, they would be entitled to contribution from Cooley as a joint tortfeasor.

OCGA § 51-12-32 provides: “Where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly.” Appellants contend that they are entitled to add Cooley as a third-party defendant because of their right to contribution from Cooley as a joint tortfeasor under OCGA § 51-12-32. Appellee contends that appellants are attempting to bring Cooley in as a third-party defendant solely as a substitute defendant. “Although a defendant is not generally permitted to offer a substitute defendant by third-party complaint, a third-party complaint is nevertheless maintainable under OCGA § 9-11-14 (a) against a joint tortfeasor for contribution.” Winkler, Inc. v. Vilston, N. V., 172 Ga. App. 686 (1) (324 SE2d 542) (1984). Therefore, we must first determine whether appellants and Cooley were joint tortfeasors such as would give appellants a right of contribution against Cooley.

Decided May 23, 1990.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, for appellants.

Cashin & Morton, Harry L. Cashin, Jr., Raymond C. Mayer, Greene, Buckley, Derieux & Jones, Edward D. Buckley III, for appellee.

We reject at the onset appellee’s contention that appellants’ alleged violation of the dram shop statute constitutes a tortious act involving moral turpitude. In determining whether a joint tortfeasor relationship exists, “ ‘[t]he correct procedure is to look first to the time of the commission of the acts. If there was concert of action, then there is no need to go further to establish entire liability. But if there was no concert, the next step should be to look to the combined effect of the several acts. If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus, the true distinction to be made is between injuries which are divisible and those which are indivisible.’ [Cit.]” (Emphasis in original.) Gilson v. Mitchell, 131 Ga. App. 321, 325 (205 SE2d 421) (1974); The alleged facts in the case sub judice show that there was no concert of action between appellants and Cooley, but that their separate actions combined to cause one injury which is indivisible and incapable of being apportioned. Therefore, appellants were entitled to bring a third-party action against Cooley for contribution. Winkler, Inc. v. Vilston, N. V., supra. Although the decision whether to grant or deny a motion for leave to implead a third-party defendant is one committed to the discretion of the trial judge. (Jenkins v. Chambers, 127 Ga. App. 200 (2) (193 SE2d 222) (1972)), we find error with the trial court’s denial of appellant’s motion for leave to file a third-party complaint.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A90A1005.
    FARLEY v. THE STATE.
    (394 SE2d 585)
   Deen, Presiding Judge.

Appellant Farley, a Henry County resident, had been the subject of a drug investigation in that county for sometime prior to his arrest at a Clayton County motel for trafficking in cocaine. The arrest was effected by Clayton County officers together with a Henry County officer who, in connection with his assignment to the Drug Enforcement Agency, had been in charge of the investigation and had obtained from a reliable confidential informant information that, within the preceding ten days, appellant had been seen in possession of cocaine in his home.

The Henry County agent testified that appellant had been read his Miranda rights within minutes of being placed under arrest in the Clayton County motel, but conceded that the rights were not read again when they went from Clayton County to Henry County to search Farley’s home. The agent further conceded that he had not obtained a search warrant but had asked Farley to sign a Consent to Search form, telling him that a warrant could be obtained if the consent form were not signed. According to the trial transcript, appellant acknowledged that he had cocaine in the master bedroom of his home; signed the consent form; and, when driven to his house, was again told that he could withhold consent. Appellant indicated that he understood, and then immediately retrieved from the bedroom a quantity of cocaine (together with such drug paraphernalia as scales and plastic baggies), and turned the items over to the officers. In a bench trial the court denied the motion to suppress and found Farley guilty as charged.

On appeal Farley alleges that the trial court should have granted his motion to suppress because he signed the Consent to Search form under the duress of the officers’ threats to execute a search warrant while his wife and family were in the house. Held:

“Consent searches are valid . . .[,] but where the state relies upon consent, the burden is upon [it] to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. [Cit.] Voluntariness must be determined from all of the circumstances.” Cuevas v. State, 151 Ga. App. 605, 609 (260 SE2d 737) (1979), cert. denied 445 U. S. 943 (1980). In Smith v. State, 184 Ga. App. 304 (361 SE2d 215) (1987), this court found, in circumstances in which the dialogue regarding the alternatives of obtaining written consent or procuring a search warrant was substantially like that in the case at bar, that the consent to search was obtained freely and voluntarily. In Cuevas, supra at 609, the trial court reviewed circumstances essentially like those in Smith and in the instant case and (after resolving the issue of probable cause in the state’s favor) held that “[w]here the statement is made that the subject can consent or a search warrant will be procured, if true, this does not amount to [such] duress or coercion as would invalidate the subsequent search.” See also, e.g., Mancil v. State, 177 Ga. App. 663 (340 SE2d 279) (1986).

Decided May 8, 1990

Rehearing denied May 24, 1990

Joseph J. Saia, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

In the instant case there is no question of probable cause, as in Cuevas and Smith; the only issue here is the validity of the consent. The trial transcript shows that, in arriving at his decision, the trial court alluded to the holdings vis-á-vis consent in such cases as those we have cited, supra. According to the transcript, the court stated: “For all of those reasons, the court considering the totality of the circumstances will find that the consent given was valid and that those items seized . . . can be considered as evidence in the case, so for that reason the motion to suppress will be denied.

“In considering the evidence against the defendant the court finds that by a preponderance of the evidence, with reference to the statement given by the defendant concerning some alleged cocaine at his residence, that the defendant was advised of . . . his Miranda rights, that he understood those rights, and he voluntarily waived those rights and freely and voluntarily gave a statement thereafter. . . .

“Considering that evidence along with all the other evidence in the case, the court finds that the evidence shows beyond a reasonable doubt that the defendant is guilty of . . . trafficking in cocaine. . . .” See Code v. State, 234 Ga. 90 (214 SE2d 873) (1975); see also Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797) (1968).

As to appellant’s contention (conceded by the arresting officers) that the Miranda rights were not repeated in Henry County, we know of no requirement that they be read more than once in the same transaction. We find no merit in appellant’s enumeration of error.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1156.
    JOHNSON v. THE STATE.
    (394 SE2d 586)
   Deen, Presiding Judge.

A Hall County jury found appellant guilty of rape, aggravated sodomy (two counts), simple battery, kidnapping, and false imprisonment. Because Johnson was a recidivist the trial court imposed maximum sentences: twenty years for rape and twenty years on each count of aggravated sodomy, the latter two sentences to be served concurrently with one another but consecutively to the sentence for rape. Lesser sentences were imposed for the other counts, all to run concurrently with the rape and aggravated sodomy sentences.

On appeal Johnson enumerates as error (1) the sufficiency of the evidence to support the rape and aggravated sodomy convictions; and (2), (3) the trial court’s failure to rule that the counts of kidnapping and false imprisonment merged as a matter of law and fact, and that the convictions of simple battery and aggravated sodomy merged into the rape conviction as a matter of fact. Held:

1. Examination of the trial transcript and the remainder of the record reveals that there was more than sufficient evidence adduced to authorize the rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses of kidnapping, rape, and aggravated sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The appellate court determines only the sufficiency of the evidence, not its weight. Miasso v. State, 191 Ga. App. 222 (381 SE2d 315) (1989). Appellant’s first enumeration is without merit.

2. Offenses may be said to merge when (1) one is a lesser offense included in another or (2) each of the two different charges arises out of the same conduct as the other, and all the evidence is used to establish one of the offenses charged. When a given offense includes some, but not all, of the elements of another, “greater” offense and no element other than those which constitute the “greater offense,” then the former may properly be designated a “lesser included offense” and may be said to merge with the latter as a matter of law. See OCGA §§ 16-1-6 (1); 16-1-7 (a) (1). Or, alternatively, if, for example, one person makes physical contact of an insulting or provoking nature with another person, thereby committing the offense of simple battery, OCGA § 16-5-23, but does it in a special manner so as to commit, e.g., rape, attempted rape, or sodomy, then the same conduct — improper physical contact with the sexual organs — gives rise to both battery and a greater offense, and the former merges with the latter as a matter of fact, except when there also occurs additional impermissible touching unconnected with the greater substantive offense.

In the instant case neither of these criteria applies to appellant’s second enumeration. Although false imprisonment may, in certain circumstances, be included in kidnapping, the trial transcript sub judice clearly indicates that in the instant case the kidnapping — the asportation of the victim to a place where she did not wish to go, OCGA § 16-5-40 (a) — involved conduct distinct from that which constituted false imprisonment, which embraced appellant’s chasing her each time she managed to escape from the automobile and forcing her to re-enter the car and remain there until it suited him to release her. OCGA § 16-5-41 (a). In these circumstances, false imprisonment does not merge with kidnapping either as a matter of fact or as a mater of law, and appellant’s second enumeration has no merit.

3. We agree, and the State concedes, that appellant is correct in asserting that in the instant case the same impermissible touching — the hitting and slapping which constituted simple battery — also supplied the element of force necessary for conviction of rape. Thus battery merged into rape, and the simple battery conviction should be reversed. Reversal of this conviction would not alter the length of appellant’s total sentence, however, since the twelve-month sentence for simple battery imposed by the trial court was specified to run concurrently with the other sentences. Moreover, according to the record, this issue was not raised below, and therefore the error was not preserved for appeal.

As to appellant’s contention that the convictions for anal and oral sodomy merge into the rape conviction, each of the three offenses contains at least one element not contained in the others. See OCGA §§ 16-6-1; 16-6-2. Therefore, they cannot merge as a matter of law. That it is anatomically impossible for them to merge as a matter of fact would seem a foregone conclusion; however, this court has held that this is properly a question for jury resolution. Wimpey v. State, 180 Ga. App. 529 (349 SE2d 773) (1986). In the instant case the jury resolved the matter against the appellant, and the evidence adduced would authorize such a finding beyond a reasonable doubt. Jackson v. Virginia, supra. Furthermore, as with the simple battery conviction, the alleged error was not raised prior to appeal and therefore is not properly before this court.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided May 8, 1990

Rehearing denied May 24, 1990.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

       The evidence clearly shows that the victim, finding herself stranded with an inoperable vehicle, asked appellant to take her to the home of her brother-in-law to obtain assistance, and that appellant agreed to do so if she would allow him to make a stop or two en route. The kidnapping occurred when, after completing several stops, appellant drove the victim not to the requested destination but to the deserted area where he proceeded to commit the sexual offenses. The false imprisonment occurred after the kidnapping had already been accomplished.


text:
    A90A1241.
    NOBLES v. THE STATE.
    (394 SE2d 613)
    Decided May 16, 1990
    Rehearing denied May 24, 1990.

      Jackson & Schiavone, Michael G. Schiavone, for appellant.

      Spencer Lawton, Jr., District Attorney, Barry Mortge, Assistant District Attorney, for appellee.
   Banke, Presiding Judge.

This case is before us on appeal from the denial of the appellant’s plea of former jeopardy. In a prior appearance of the case before this court, we reversed the appellant’s convictions of voluntary manslaughter and possession of a knife during the commission of a felony, based on a determination that the appellant’s in-custody statement should not have been admitted into evidence. Nobles v. State, 191 Ga. App. 594 (1) (a) (382 SE2d 637) (1989). However, we expressly held that the remaining evidence was sufficient to support both convictions. Id. at 597 (1) (b), 599 (7). Upon the return of the case to the trial court, the appellant filed a “Plea and Motion in Autrefois and Plea of Former Jeopardy,” based on a contention that the latter holding was erroneous. The present appeal is from the denial of that motion. Contending that the appeal is frivolous and was interposed solely for the purpose of delay, the state has moved both for expedited consideration of the appeal and for its dismissal. Held:

The motion to dismiss the appeal is denied. However, the motion for expedited consideration of the appeal is granted. The prior holding of this court with respect to the sufficiency of the evidence was binding upon the trial court, which consequently did not err in denying the appellant’s plea of former jeopardy. Accord Whitlock v. State, 230 Ga. 700, 702 (2) (198 SE2d 865) (1973). Cf. Strickland v. State, 258 Ga. 764 (373 SE2d 736) (1988).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0134.
    DAVIS v. KNIGHT et al.
    (394 SE2d 634)
   Cooper, Judge.

Appellant filed suit against appellees alleging assault and battery and appellees counterclaimed, also alleging assault and battery and praying for the recovery of expenses, costs and attorney fees. Appellees amended their counterclaim to add a claim for damages, expenses and attorney fees pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) and OCGA § 9-15-14. After the close of the evidence, in a jury trial, appellees withdrew their “Yost” and § 9-15-14 claim. The jury returned verdicts for the appellant against appellee Knight in the amount of $778.50; for the appellant against appellee Comer in the amount of -0-; for the appellant against appellees, jointly and severally in the amount of -0-; for appellee Knight against appellant in the amount of -0-; and for appellee Comer against appellant in the amount of $2,300, and this appeal is taken from the judgment entered thereon.

1. In his first and fourth enumerations, appellant contends the trial court erred in allowing appellees to amend their counterclaim and in denying appellant’s motion to dismiss the amendment to the counterclaim. The record reflects that the appellees withdrew the amendment to the counterclaim at the close of the evidence, however appellant presented no evidence that he was harmed by the judge’s actions. Therefore, if any error did occur (which we do not decide), it was harmless and does not require reversal. Kolman, Inc. v. Burns, 191 Ga. App. 758 (382 SE2d 702) (1989).

2. Appellant next contends that the court erred in admitting testimony of a witness concerning conversations the witness had with appellees after the incident occurred. From the record, it appears that appellant’s objection was based upon the irrelevancy of the testimony because it related to a time period other than the time of the incident. No other grounds for the objection appear in the record. Objections based on the irrelevancy of evidence are insufficient to show reversible error. Brinson v. State, 191 Ga. App. 151 (381 SE2d 292) (1989). Further, “[questions of relevancy are within the domain of the trial court.” Allstate Ins. Co. v. McGee, 157 Ga. App. 53, 55 (276 SE2d 108) (1981). The trial court did not abuse its discretion in allowing the testimony, and there was no reversible error.

3. Appellant’s third enumeration that it was error to allow appellees to call a witness not named in the pre-trial order is without merit. Since appellant presents no argument that the testimony of the witness surprised or harmed the appellant’s case, the trial court’s discretion in allowing the witness to testify was not abused, and no error occurred. See Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973).

4. The fifth, sixth and seventh enumerations are related and are also all without merit. The testimony on the amount and the reasonableness of attorney fees that was presented to the jury was necessary to support appellees’ original claim for expenses and fees pursuant to OCGA § 13-6-11 and was not admitted erroneously. Also, our review of the record reveals no erroneous reference by the trial court to the “Yost” claim — any reference to the recovery of attorney fees relates to the claim under OCGA § 13-6-11. Similarly, the trial court did not err in charging the jury as to OCGA § 13-6-11. Contrary to the arguments asserted by appellant, attorney fees are recoverable under OCGA § 13-6-11 (see Spivey v. Rogers, 173 Ga. App. 233 (326 SE2d 227) (1984)) and defendants can avail themselves of the section if a defendant asserts a claim for relief independent of a claim for litigation expenses incurred in defending the plaintiff’s case. Ballenger Corp. v. Dresco &c., 156 Ga. App. 425 (274 SE2d 786) (1980). Appellees’ independent claim of assault and battery can support their prayer for attorney fees and expenses.

Decided May 24, 1990.

Fortson & Associates, Walter L. Fortson, for appellant.

Floyd, Jones & Ware, Thomas F. Jones, for appellees.

5. Appellant asserts in his final enumeration that the verdict does not conform to law or the evidence without success. The record presents sufficient evidence to support the verdicts for appellant as to appellee Knight and against appellant as to appellee Comer, and “ ‘(i)n the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence. . . .’ [Cit.]” Martin v. Children’s Sesame, 188 Ga. App. 242 (3) (372 SE2d 648) (1988).

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A90A0533.
    HIGHT v. THE STATE.
    (394 SE2d 636)
   Sognier, Judge.

Dennis Hight was indicted on two counts of aggravated child molestation, one count of incest, and four counts of aggravated sodomy. He was found guilty of all seven counts, and the trial court merged two counts of aggravated sodomy into the two counts of aggravated child molestation. Hight appeals.

1. Appellant contends the trial court erred by denying his motion for substitution of counsel. Appellant was represented by appointed counsel. The transcript reveals appellant requested another lawyer because he was “not satisfied” with his appointed counsel, telling the trial court that “I decided he just wasn’t for my benefit. He seems like he just is not as interested in my case as I want him to be.”

“While an indigent defendant accused of a crime for which imprisonment is possible is entitled to have reasonably effective counsel provided to assist him, he is not entitled to counsel of his own choosing. [Cit.] A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court. [Cit.]” Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987). In the two months appellant’s appointed counsel represented him, counsel handled appellant’s case, filed motions including a motion for a continuance in order to prepare for trial, which was granted, and took other appropriate action without objection by appellant. At the end of the trial appellant himself stated that his attorney “did all right.” We find that the circumstances of the case sub judice did not require the trial court to exercise its discretion to appoint substitute counsel for appellant. See id.

2. Appellant contends the denial of his motion for severance of the offenses was error. In counts 1-5, appellant was charged with aggravated child molestation, aggravated sodomy, and incest as to the same victim, K. M. The evidence reveals that appellant had engaged in on-going sexual activities with his eleven-year-old stepdaughter, K. M., for several years. In one incident, testified to by K. M. and her half-sisters (appellant’s daughters), A. H. and S. H., appellant ordered K. M. to show A. H. and S. H. how to perform oral sodomy which she did, and then all three victims were forced to commit an act of oral sodomy on appellant. This incident formed the basis for counts 4, 6, and 7, as to K. M., A. H. and S. H., respectively. A. H. and S. H. were also witnesses to the matters forming the basis of the charges against appellant as to K. M.

“ ‘(A) defendant has a right to severance “where the offenses are joined solely on the ground that they are of the same or similar character . . . ‘because of the great risk of prejudice from a joint disposition of unrelated charges.’ ” [Cits.] However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance “lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.” [Cits.]’ [Cit.]” Barker v. State, 191 Ga. App. 451, 453-454 (6) (382 SE2d 115) (1989). We find no abuse of the trial court’s discretion here in denying appellant’s motion. Id.

3. OCGA § 16-1-7 (a) authorizes the State to prosecute an accused of all crimes committed. The record reveals that after the jury found appellant guilty of all seven charges, the trial court properly merged the two charges of aggravated sodomy in counts 4 and 5 into the convictions on counts 1 and 2 of aggravated child molestation. We find no error in the proceedings and thus there is no merit in appellant’s contention that he should have been allowed to elect and state a single offense.

4. Appellant’s enumeration contending error in the trial court’s failure to determine first that videotaped statements by the victims possessed “sufficient indicia of reliability” under OCGA § 24-3-16 before admitting the testimony and then subsequently finding the statements reliable is controlled adversely to appellant by Reynolds v. State, 257 Ga. 725-726 (2) (363 SE2d 249) (1988).

5. Appellant contends the trial court erred by allowing K. M. to testify that appellant asked her to touch the penises of two minors, B. E. and B. S. The transcript fails to support appellant’s contention that such evidence was introduced as to B. E. As to B. S., the trial court admitted K. M.’s testimony that B. S. was present when appellant had K. M. commit an act of oral sodomy on appellant. Although the trial court’s ruling regarding K. M.’s testimony as to what appellant asked her to do to B. S. was unclear, after the ruling the State did not question K. M. on any matter regarding B. S. except insofar as B. S. was a witness to the oral sodomy, and when the State completed its examination of K. M. the trial court instructed the jury that “with regard to the testimony of [K. M.] of any conduct in connection with a person named [B. S.] that that is not alleged in the indictment and is not a part of this trial or transaction and you should not consider it in your deliberations or in reaching a verdict, and you could not base a verdict on that testimony.”

The transcript thus discloses that as to the alleged contact between K. M. and B. S., the trial court sustained appellant’s objection and instructed the jury to ignore K. M.’s testimony on that matter. Accordingly, as to this issue, appellant has failed to carry his burden of showing error affirmatively by the record. See generally Ragan v. Smith, 188 Ga. App. 770, 772 (2) (374 SE2d 559) (1988).

Appellant also argues, however, that K. M.’s testimony that B. E. and B. S. were present during the act of oral sodomy between K. M. and appellant for which appellant was charged would also constitute evidence of separate and independent acts of child molestation against B. E. and B. S. under OCGA § 16-6-4 (a), acts for which appellant was not indicted, and thus this evidence was of “similar transactions” which impermissibly placed appellant’s character in evidence in violation of OCGA § 24-9-20 (b). First, we note that while both B. E. and B. S. were apparently minors at the time of the incident, no evidence was adduced that either B. E. or B. S. was under the age of 14 at that time, a requirement to constitute a criminal act under OCGA § 16-6-4 (a). Second, “ ‘[t]he general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial ... is irrelevant and inadmissible.’ [Cits.]” (Emphasis supplied.) Spurlin v. State, 228 Ga. 2, 5 (183 SE2d 765) (1971). However, “ ‘[a]cts and circumstances forming a part or continuation of the main transaction are admissible as res gestae.’ [Cits.]” Shouse v. State, 231 Ga. 716, 719 (8) (203 SE2d 537) (1974). Thus, even assuming, arguendo, a criminal act was shown by this evidence, the presence of B. E. and B. S. at the scene during the commission of the crime for which appellant was on trial was an aspect of the charged criminal transaction, not a wholly independent criminal act. Admission of this testimony was not error. Id.

Decided May 24, 1990.

Duffey & Duffey, Harl C. Duffey III, for appellant.

Darrell E. Wilson, District Attorney, Suzanne Hayes, Assistant District Attorney, for appellee.

6. The record reveals that appellant raised no objection to testimony by Myra Stamey or to the State’s failure to advise Donna Hight, appellant’s wife, that she could only be compelled under OCGA § 24-9-23 (b) to give evidence against appellant on the specific acts for which he was charged. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

Judgment affirmed.

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


text:
    A90A0510.
    SEABROOK CORPORATION v. CHATHAM COUNTY BOARD OF EQUALIZATION.
    (394 SE2d 796)
   Banke, Presiding Judge.

The Board of Equalization of Chatham County assessed ad valorem taxes against an inventory of stone tile/slab which the appellant had imported to this country from the People’s Republic of China through the Port of Savannah. The appellant appealed to superior court, contending that the property was “foreign merchandise in transit” and that the assessment was therefore prohibited by OCGA § 48-5-5. The superior court awarded summary judgment to the Board of Equalization, and this appeal followed.

The goods were warehoused in Chatham County for 17 months, from August 1987 to December 1988. The assessment was made on January 1, 1988, for the 1987 tax year. The appellant’s offices are in Ohio, and it had no other tangible personal property in Georgia in 1987. The appellant maintains that the goods were being temporarily stored “for inspection and sale,” with the expectation that they would ultimately be delivered to customers outside the State of Georgia. However, it is undisputed that no contract of sale existed for the goods as of January 1, 1988, and that there was no identified purchaser or destination for the goods as of that date. Held:

OCGA § 48-5-5 provides as follows: “Foreign merchandise in transit shall acquire no situs so as to become subject to ad valorem taxation by political subdivisions of this state in which the port of original entry or the port of export of such merchandise is located. Such property shall not acquire situs by virtue of the fact that while in the warehouse the property is assembled, bound, joined, processed, disassembled, divided, cut, broken in bulk, relabeled, or repackaged. The grant of ‘no situs’ status shall be liberally construed to effect the purposes of this Code section.”

The term “foreign merchandise in transit,” as it pertains to imported goods, means “personal property of any description which has been or will be moved by waterborne commerce through any port located in this state and . . . (B) Which was shipped from a point of origin located outside the customs territory of the United States and on which United States customs duties are paid at or through any customs district or port located in this state, although stored or warehoused in the county where the port of entry is located while in transit to a final destination.” OCGA § 48-5-2 (2). (Emphasis supplied.)

In Michelin Tire Corp. v. Wages, 423 U. S. 276 (96 SC 535, 46 LE2d 495) (1976), aff’g Wages v. Michelin Tire Corp., 233 Ga. 712 (214 SE2d 349) (1975), the United States Supreme Court held that an assessment of ad valorem taxes by a Georgia county against imported goods being warehoused there did not constitute an unconstitutional impost or duty because the goods, having been unloaded from their original shipping containers and sorted by size and style without regard to place of manufacture for distribution throughout the southeast, were “no longer in transit.” Id. 423 U. S. at 302.

In considering the related issue of whether goods are “in transit” so as to be exempt from state taxation under the commerce clause of the federal constitution, the United States Supreme Court has stated that the “crucial question” is that of “continuity of transit.” Carson Petroleum Co. v. Vial, 279 U. S. 95, 101 (49 SC 292, 73 LE 626) (1929). “A temporary pause in [the] transit [of the goods] does not mean that they are no longer ‘in commerce’. . . . [I]f the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destinations, they remain ‘in commerce’ until they reach those points. Then there is a practical continuity of movement of the goods until they reach the customers for whom they are intended.” Walling v. Jacksonville Paper Co., 317 U. S. 564, 568 (63 SC 332, 87 LE 460) (1943). However, “[w]here property has come to rest within a State, being held there at the pleasure of the owner ... so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of property within the State and is thus subject to its taxing power.” Minnesota v. Blasius, 290 U. S. 1, 10 (54 SC 34, 78 LE 131) (1933). The mere fact that further interstate movement is contemplated at sometime in the future is not sufficient to withdraw the property from the state’s power to tax it. Id. 290 U. S. at 9.

Decided May 11, 1990

Rehearing denied May 25, 1990

Clark & Clark, Fred S. Clark, for appellant.

Brennan, Harris & Rominger, Richard J. Harris, Emily E. Garrard, for appellee.

Because the merchandise at issue in the present case was not being held for shipment to any known purchaser or destination when the taxes were assessed but was being stored at the appellant’s pleasure for sale to anyone who might wish to purchase it, the trial court was authorized to conclude that it was not “in transit to a final destination” within the contemplation of OCGA § 48-5-2 (2) (B) and that it was consequently not exempt from ad valorem taxation under OCGA § 48-5-5.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0327.
    MORGAN v. THE STATE. BLAIR v. THE STATE.
    A90A0509.
    (394 SE2d 639)
   Birdsong, Judge.

Appellants Blair and Morgan were convicted of armed robbery at a convenience store/service station. In the early morning hours of Christmas Day 1987, the two entered the store and after tricking the attendant on duty to enter the storeroom, Blair tried to hold him inside while Morgan attempted to open the cash register. When the attendant broke out of the storeroom, Morgan struck him in the face with his fist. The attendant was forced back in the storeroom and Morgan used Blair’s pocketknife to threaten the attendant that if he did not open the cash register he would be “poked” with the knife. While appellants and the attendant were gathered around the cash register, a pickup truck drove up to the store. The attendant then ran out of the store and jumped in the back of the truck, yelling for the driver to leave because he was being robbed. As the truck drove away, the attendant saw appellants leave the store and one of them was carrying several cartons of cigarettes.

About an hour later, a police officer on routine patrol in town about twenty miles from the robbery scene followed the car in which appellants were riding because he had received a radio message to be on the lookout for a car of that approximate description. The message he received said to watch for a red 1982 or 1983 Chevrolet Camaro with three people in the car. The car was driven somewhat erratically, and after the officer turned on his blue lights, the car did not stop promptly. When the officer stopped appellants, however, there were four people in the car, not three as he expected.

Upon questioning the car’s occupants, the officer received conflicting versions of where the four had been that morning. Thereafter, the officer received additional information by radio about the people at the convenience store and, although not all of the information matched the people he was interviewing, there were similarities: the physical descriptions of the appellants matched, a number of cartons of cigarettes was in the car, and a woman was wearing maroon sweatpants. Because of their information, he requested appellants to accompany him for further investigation. Three of the people from the Camaro rode in the back seats of police cars, and the other drove the Camaro as the middle car in between the two police cars. Appellants were taken to the county jail where they waited until the attendant came to identify them. About two hours later, the convenience store clerk arrived and picked them from lineups as the people who attacked him and took the cigarettes. A later search of their car revealed additional cigarettes and brown gloves which were also taken from the convenience store.

The appellants contend the trial court erred by not granting their motions for severance of their trials, by not granting their motions for directed verdict of acquittals, and by not granting their motions to suppress evidence which they claimed was the product of their being unlawfully detained. Held:

Case Nos. A90A0327 and A90A0509

1. Both appellants made motions for a directed verdict of acquittal of armed robbery on grounds the convenience store clerk fled the store before the cigarettes and gloves were taken. Appellants maintain therefore that the evidence only showed an attempted robbery of the cash register and a theft by taking of the cigarettes and gloves. The argument relies on the definition of robbery in OCGA § 16-8-41 (a): “A person commits the offense of armed robbery when, with intent to commit' theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” (Emphasis supplied.)

It has long been recognized, however, that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed. See, e.g., Welch v. State, 235 Ga. 243, 245-246 (219 SE2d 151); Clements v. State, 84 Ga. 660, 661-662 (11 SE 505); Maddox v. State, 174 Ga. App. 728, 730 (330 SE2d 911). Further, the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant. Sypho v. State, 175 Ga. App. 833, 834 (334 SE2d 878); Waters v. State, 161 Ga. App. 555, 556 (289 SE2d 21); Mitchell v. State, 157 Ga. App. 146, 147 (276 SE2d 658). Since the victim fled the scene after he was threatened with a knife and the property was stolen before he could even drive away, that was sufficient to constitute a theft from his immediate presence. Thus, the trial court did not err by denying appellants’ motions for a directed verdict of acquittal.

2. Appellants also both contend that the trial court erroneously denied their motions to sever their trials. The decision of such motion is in the discretion of the trial court (OCGA § 17-8-4), and absent an abuse of discretion the denial of such a motion will not be reversed. Mapp v. State, 258 Ga. 273, 274 (368 SE2d 511). The appellants have failed to show that the trial court abused its discretion in denying their motions. Their only claim of prejudice is that they had antagonistic defenses, and that alone is not sufficient to require a severance of their trials. Stevens v. State, 165 Ga. App. 814, 815-818 (302 SE2d 724).

Case No. A90A0327

3. Appellant Morgan contends that the trial court erred in denying his motion to suppress because the evidence seized was the result of an illegal detention. He argues that, although the initial stop by the policeman may have been lawful, this stop became an arrest without probable cause because of the passage of time between the stop and when he was later identified and arrested. Morgan relies on our decision in DiSanti v. State, 190 Ga. App. 331, 334 (378 SE2d 729), for this proposition, but compare Mallarino v. State, 190 Ga. App. 398 (379 SE2d 210).

Since the trial court’s denial of his motion was not based on the fact that there was no arrest until after Morgan’s identifications, DiSanti is not dispositive here. The trial court specifically found that the arrest was made when Morgan was put in the back seat of the police car, and this was an arrest with probable cause, notwithstanding the police officer’s assertion that he was only detaining Morgan and the others as part of an investigative detention.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. Brown v. State, 190 Ga. App. 324, 326 (378 SE2d 908). The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Ragin v. State, 192 Ga. App. 686, 687 (385 SE2d 770); Watson v. State, 190 Ga. App. 696 (379 SE2d 817). Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150).

Review of the record of the hearing on the motion to suppress reveals ample evidence supporting the findings. Although the description of the car and the people in it did not exactly match the radio message the officer received, there is no requirement that they do so (see Cobb v. State, 244 Ga. 344 (260 SE2d 60); Creecy v. State, 235 Ga. 542-543 (221 SE2d 17)), and police officers are authorized to use information received by radio as part of their basis for establishing probable cause. Parker v. State, 161 Ga. App. 37, 39 (288 SE2d 852).

Therefore when the information received by radio is coupled with the police officer’s observation of Morgan’s and the others’ physical appearances with the description of the robbers, the cartons of cigarettes, the maroon sweatpants on the woman, the erratic driving and refusal to stop promptly, the various conflicting versions of their activities, and that all this occurred in the early morning hours of Christmas Day when there was little or no other traffic, it is apparent that abundant facts and circumstances existed to cause a reasonably prudent man to conclude that Morgan had robbed the convenience store. Williams v. State, 251 Ga. 749, 792 (312 SE2d 40); Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768).

Further, considering the totality of the circumstances, the record amply supports the trial court’s finding that Morgan was arrested at the scene of the traffic stop when he was no longer free to leave because he was put in the back seat of the police car. Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853); DiSanti v. State, supra; Radowick v. State, 145 Ga. App. 231, 238 (244 SE2d 346). Detention beyond that authorized by a Terry stop is an arrest and no formal procedures are required. Williams v. State, supra.

Therefore, since the police officer had probable cause to arrest Morgan at the moment he did so, the arrest was valid under both the United States and Georgia Constitutions. Newsome v. State, 192 Ga. App. 846, 849 (386 SE2d 887); Burroughs v. State, 190 Ga. App. 467 (379 SE2d 175). Accordingly, the trial court did not err by denying Morgan’s motion to suppress.

Decided May 25, 1990.

Bailey & Bearden, J. Lane Bearden, for appellant (case no. A90A0327).

Millard G. Gouge, for appellant (case no. A90A0509).

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Case No. A90A0509

4. Appellant Blair contends the trial court erred by finding that he lacked standing to move to suppress the evidence seized in Morgan’s car. The record shows that Blair had no ownership or possessory interest in the car, had no property in the car, and was just a passenger in the car. The Fourth Amendment right against unreasonable search and seizure may not be asserted vicariously, and one who merely claims to be aggrieved by an illegal search and seizure because the evidence is to be introduced against him has no standing to object. Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680). As a mere passenger in the car, Blair had no standing to raise this issue. Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52). Accordingly, the trial court did not err.

Judgments affirmed.

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


text:
    A89A2125.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WEATHERS et al.
    (394 SE2d 921)
    Decided May 25, 1990.

      Kent, Rackett & Nelson, A. Martin Kent, for appellant.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, State Farm Mut. &c. Ins. Co. v. Weathers, 260 Ga. 123 (392 SE2d 1) (1990), our decision in State Farm Mut. &c. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1990), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Birdsong and Cooper, JJ., concur.

Lawrence L. Martin, Arthur L. Cooper, Tom A. Edenfield, for appellees.


text:
    A90A0395.
    NORTON v. THE STATE.
    (395 SE2d 34)
   Birdsong, Judge.

Norton appeals from his convictions for possession of alprazolam, hydromorphone, marijuana, and tetracaine in violation of the Georgia Controlled Substances Act. He was sentenced to serve 15 years confinement. The sole error asserted is that the trial court erred by admitting evidence that Norton on a prior occasion possessed approximately one pound of cocaine because Norton contended there was insufficient evidence showing that Norton possessed the cocaine. Held:

The offenses of which Norton was convicted arise from a search conducted of Norton’s mother’s home and surrounding property on March 26 and 27, 1988, by the Chattooga County Sheriff’s Department. On the first day, they seized currency from Norton’s bedroom and a large amount of currency from the trunk of an inoperable vehicle in the west side of the yard. The currency seized totaled $59,614.85.

Deputies secured the area overnight and continued the search the next day. Then, in various locations in the yard and woods surrounding the house, they found the drugs giving rise to the charges. The hydromorphone was hidden in a coffee can under pine needles about 50 feet behind the house. Some marijuana was hidden under camouflage cloth near the hydromorphone and the alprazolam was found among some bags hidden on top of the tires of ah inoperative vehicle on the east side of the house; The tetracaine was under a piece of metal about forty feet in front of the house. More marijuana was buried about five feet from a path leading to the Nortons’ yard, and a bottle of marijuana seeds was found in the trunk of an inoperable vehicle on the west side of the driveway in front of the house.

The similar transaction evidence was testimony about searches conducted of the same property on January 20 and February 5, 1987. The testimony showed that on January 20 deputies searched the same house and in Norton’s bedroom found six packs of rubber bands, three boxes of baggies, one box of powdered sugar, two spoons, and a plastic bag with a residue of cocaine, a plastic container of marijuana seeds, and $73,422 in cash. Norton was arrested and was still in jail when the property was searched again on February 5.

In that search the deputies found in the woods in front of the house a gym bag containing a set of scales, three bottles of a white powder, and 49 plastic bags containing 451 grams of almost pure cocaine. There was testimony that the powder was a substance frequently used to adulterate cocaine and that the items seized on January 20 were typical of paraphernalia used to cut and bag cocaine, there was also testimony that there was a pathway from the gym bag to the house. There was no direct evidence linking Norton to any of the items found outside of the house.

Decided May 25, 1990.

Cook & Palmour, Bobby Lee Cook, Westbrook & Vines, Carlton H. Vines, for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.

Norton contends that the independent crime evidence was not admissible because it failed to satisfy the first condition for admissibility of such evidence set out in Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515): “First, there must be evidence that the defendant was in fact the perpetrator of the independent crime . . . and the offense charged. . . .” Norton asserts that this condition fails because the cocaine was not found on his mother’s property, there was no direct evidence he possessed it, and he was in jail at the time the cocaine was found.

Possession can be proven by circumstantial as well as direct evidence. See Shephard v. State, 191 Ga. App. 802, 803 (383 SE2d 182). Thus, the question becomes whether the trial court correctly found the circumstantial evidence was sufficient to prove that Norton possessed the items seized outside the house on February 5, 1987, as well as the items seized on March 26, 1988. Trial courts are vested with wide discretion in admitting evidence and will not be reversed in the absence of an abuse of discretion. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360); Flowers v. State, 191 Ga. App. 396, 398 (381 SE2d 768). Considering the large sums of cash, the drug paraphernalia, the manner in which the items seized were hidden around and near the house, as well as in Norton’s bedroom, we are satisfied that there was sufficient circumstantial evidence to prove that Norton possessed the drugs (see OCGA § 24-4-6; Smith v. State, 257 Ga. 381, 382 (359 SE2d 662)), that the conditions for admitting this evidence were met (see Williams v. State, 251 Ga. 749, 755 (312 SE2d 40); State v. Johnson, 246 Ga. 654 (272 SE2d 321); Hamilton v. State, supra), and that the trial court did not abuse its discretion in admitting this evidence. Crews v. State, 185 Ga. App. 494, 495 (364 SE2d 625).

Judgment affirmed.

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


text:
    A90A0508.
    HAWKINS v. THE STATE.
    (395 SE2d 251)
   Birdsong, Judge.

Stoney Hawkins appeals his conviction of aggravated assault with intent to rape. Held:

1. Hawkins contends the trial court erred by denying his motion for a directed verdict of acquittal because no rational trier of fact could have found that he was the perpetrator of the crime. Although the transcript shows that the victim of the assault was Hawkins’ neighbor who knew Hawkins personally, and she testified that Stoney Hawkins was the person who assaulted her, Hawkins contended that no one had identified him in court as the “Stoney Hawkins” she identified. The transcript also shows, however, that numerous other witnesses testified that Stoney Hawkins was the person who was with the victim on the night in question, and that after the motion was denied, the appellant, Stoney Hawkins, testified and admitted that he was the person with the victim that night.

A motion for a directed verdict of acquittal should only be granted when there is no conflict in the evidence, and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). Review of all the evidence in that manner reveals ample evidence (particularly his own testimony) from which any rational trier of fact could find beyond a reasonable doubt that Hawkins was the Stoney Hawkins who was guilty of the offense of aggravated assault with the intent to rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Therefore, the trial court did not err by denying the motion for a directed verdict of acquittal.

2. Hawkins alleges that the trial court erred by denying his motion for a mistrial after the prosecutor referred to certain evidence as being incriminating. The transcript shows the comment was made in the presence of the jury during argument on one of appellant’s objections and after the defense counsel referred to the evidence as being exculpatory. There was no error here. By its terms OCGA § 17-8-75 does not apply because the evidence in question was admitted in evidence and, further, the comment was a reply to appellant’s argument. If counsel argue objections in the presence of the jury, they cannot complain when the opposite party responds with appropriate counterargument. One cannot complain of a result he procured or aided in causing (Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696)) and induced error is not an appropriate basis for claiming prejudice. Sul lens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420).

Furthermore, whether a mistrial should be granted is within the sound discretion of the trial court and this court will not disturb the trial court’s decision unless it has abused its discretion. Martin v. State, supra. Accordingly, this enumeration of error is without merit.

3. Hawkins also alleges that the trial court erred by denying another motion for a mistrial when a witness, the sheriff, responded to one of his counsel’s questions by stating that another witness said that Hawkins was drunk on the night of the incident. The transcript shows that defense counsel asked the witness, “So, now you are telling us that Mr. Pittman was drunk on the night he gave you the statement?” and the witness replied, “No sir. I’m telling you the night of the incident Mr. Pittman was drunk, he said that Stoney Hawkins was drunk.” Appellant relies on our decision in Boyd v. State, 146 Ga. App. 359, 360 (246 SE2d 396), for the proposition that this testimony required a mistrial. Assuming without deciding that this testimony placed the defendant’s character in issue, this is nevertheless not the kind of response which inherently requires the grant of a mistrial. See Patterson v. State, 192 Ga. App. 449, 452 (385 SE2d 311). Moreover, it cannot be said that the answer was entirely unresponsive since counsel in essence asked the sheriff to clarify what he was telling the court, and the sheriff responded with what he had intended to tell. Counsel are responsible for the responsive answers their questions elicit. See Martin v. State, supra. As the record does not reveal that the trial court abused its discretion in denying this motion, there was no error. Martin v. State, supra; Patterson v. State, supra.

4. Hawkins enumerates as error the trial court sustaining the State’s hearsay objection to questions his counsel asked about statements the victim and her mother allegedly made. Hawkins contends the statements were admissible as prior inconsistent statements made by the State’s witnesses. See OCGA § 24-9-83. Examination of the transcript shows that Hawkins failed to lay the proper foundation for admissibility of the testimony. It is not sufficient to ask merely whether the witness spoke to another person about a certain matter. See Carter v. State, 244 Ga. 803, 806 (262 SE2d 109). OCGA § 24-9-83 requires that the contradictory statements be called to the witness’ “mind with as much certainty as possible” and the inconsistent statement is admissible only after the witness denies that the statement was made. Harden v. State, 166 Ga. App. 536, 538 (304 SE2d 748). Since that was not done, an inadequate foundation was laid for admission of the purportedly contradictory statement, and it was not error to sustain the objection to these questions.

5. Hawkins also assigns as error the trial court permitting a witness to testify who was not identified on the witness list provided Hawkins before trial. See OCGA § 17-7-110. The record reflects that the prosecution decided to call this witness after the trial began because an issue unexpectedly arose on which the witness could testify. The record also shows that Hawkins was promptly provided with a supplemental witness list, the witness was not called to testify until the next day, and Hawkins was allowed to interview the witness before he testified. Under these circumstances, the purpose of the code section was satisfied and the trial court did not err by allowing the witness to testify. White v. State, 253 Ga. 106, 109-110 (317 SE2d 196).

Decided May 25, 1990.

Ronald C. Goulart, for appellant.

Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

6. Hawkins also contends that the trial court erred by permitting this witness to testify because doing so denied him the opportunity to voir dire the potential jurors effectively because one of the jurors was the uncle of the witness. Hawkins argues that if the witness had been listed he would have asked if any juror was related to the witness, and the questioning would have revealed the relationship between the juror and the witness. The record, however, reveals that the trial judge permitted both parties to question the juror about his relationship with the witness and after doing so, Hawkins announced that he was “satisfied” with the juror. Under these circumstances, there is no issue for appellate review since Hawkins waived his objection by accepting the juror with full knowledge of his relationship with the witness. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

Judgment affirmed.

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


text:
    A90A0518.
    In the Interest of C. J. S. & C. M. S., children. In the Interest of C. M. S., a child. In the Interest of C. J. S., a child.
    A90A0519.
    A90A0520.
    (395 SE2d 35)
   Banke, Presiding Judge.

These appeals arise from a termination of parental rights proceeding initiated by the Georgia Department of Human Resources (DHR) against the natural parents of C. J. S., a boy born on June 24, 1982, and C. M. S., a girl born on November 5,1983. Following a four-day hearing conducted in August of 1989, the juvenile court terminated the father’s parental rights with respect to both children while terminating the mother’s parental rights with respect to the daughter only. Case No. A90A0518 is the father’s appeal from that judgment; Case No. A90A0519 is the mother’s appeal; and Case No. A90A0520 is an appeal by the DHR from the court’s decision not to terminate the mother’s parental rights with respect to the son.

At the time of the hearing, both parents were serving prison sentences for molesting the daughter, and the children were in the protective care and custody of the DHR. Although the parents have lived together off and on during most of the children’s lifetimes and although the mother uses the father’s surname, they both agree that no marriage relationship has ever existed between them. The father admits that he has been sexually involved with numerous other women during the children’s lifetimes and that he has sired at least two other illegitimate children as a consequence of such involvement, neither of whom he has ever supported or attempted to contact.

The mother placed the children in the protective care and custody of the Hall County Department of Family & Children Services (DFCS) in March of 1987, after having spent the previous night with them in a public park following an altercation with the father in which he severely beat her in the children’s presence. At the termination hearing, the father explained that the mother would not get out of his car, so he “pulled her out of the car and set her ass on the ground,” whereupon she hit him with a rock and he “beat the crap out of her.” Soon after being placed in foster care, the daughter, who was only three years of age at the time, began making statements indicative of past sexual contact between herself and her father. The child subsequently made statements which suggested that she had also been molested by her mother. As previously indicated, both parents were ultimately found guilty of molesting the child. Held:

1. There was clear and convincing evidence to support the termination of the parents’ parental rights pursuant to OCGA § 15-11-81 (a) & (b). See generally In the Interest of J. A. B., 189 Ga. App. 79 (374 SE2d 839) (1988); In the Interest of A. T., 187 Ga. App. 299 (370 SE2d 48) (1988).

2. The parents contend that the court’s termination order was deficient in that, while it included a finding that the children were deprived due to lack of proper parental care and control, it did not include a finding that such deprivation was likely to continue and to cause serious physical, mental, or emotional harm to the children. See generally OCGA § 15-11-81 (b) (4) (A) (iii & iv). This contention is without merit. The trial court expressly found that the children were “emotionally scarred” as a result of their parents’ abusive conduct and specifically concluded that it would be authorized under the provisions of OCGA §-15-11-81 to terminate the parental rights of both parents with respect to both children.

3. The appellant father enumerates as error the admission of testimony concerning the out-of-court declarations which the daughter had made regarding the alleged sexual abuse which she had experienced. The witnesses to whom these declarations were made included a therapist who had counseled the child soon after she was taken into the protective care and custody of the DFCS in early 1987, the two foster mothers with whom the child had lived during the remainder of that year, and the DFCS caseworker to whom the child’s case had been assigned during this period. The father contends that the “circumstances of the statements” did not provide “sufficient indicia of reliability” to warrant their admission under OCGA § 24-3-16. However, we must agree with the trial court that the child’s repetition of these statements to these separate witnesses in a generally consistent manner over a period of several months was itself a sufficient indication of reliability to warrant consideration of the statements as evidence. Moreover, it was shown that the child had acted spontaneously and without prompting in broaching the subject of the molestation to the therapist and the two foster mothers, being subjected by them to questioning only for the purpose of obtaining clarification. While the interviews conducted by the caseworker were somewhat more interrogative in nature, they were videotaped, and the trial judge consequently had a full and complete opportunity to determine whether this questioning had been conducted in an improperly suggestive manner. Accordingly, we hold that the trial court did not err in admitting this evidence.

4. The appellant father further contends that the trial court erred in allowing the psychotherapist to state her opinion on the “ultimate issue” of whether the daughter had been molested. This case was not, of course, tried before a jury; and when a judge is sitting as the trier of fact, it is presumed that he considered only legal evidence. See Simmons v. State, 249 Ga. 860, 861 (2) (295 SE2d 84) (1982). It is not apparent from the record to what extent, if any, the judge was influenced by this witness’ opinion that the child had been molested; however, it is fair to assume that her opinion had considerably less influence on him than did the fact that a jury had found the father guilty of molesting the child beyond a reasonable doubt. In any event, the father’s attorney asked this witness the same question on cross-examination and got the same response. Accordingly, this enumeration of error establishes no ground for reversal.

5. The DHR contends that the juvenile court judge abused his discretion in deciding not to terminate the mother’s parental rights with respect to the son. The judge made this decision notwithstanding his conclusion that there was “clear and convincing evidence of parental misconduct to justify terminating parental rights as to both children and both parents.” However, a finding of parental misconduct or inability, though essential to a termination of parental rights, will not in and of itself warrant the imposition of this extreme sanction. The juvenile court must additionally determine that “termination of parental rights is in the best interest of the child. . . .” OCGA § 15-11-81 (a). Such a determination may involve considerations which are subjective in nature and thus not readily amenable to appellate review. See In the Interest of G. K. J., 187 Ga. App. 443, 445 (370 SE2d 490) (1988). In the present case, the son, unlike his sister, desired to be reunited with his mother; and there was expert testimony that a “bonding relationship” existed between the two, the severance of which would be detrimental to the child’s well being. Confined as we are to the review of the transcript, with no opportunity to speak with or observe the parties, we are loath to second guess the juvenile, court judge’s judgment on the issue of whether it is in the son’s best interests to maintain a relationship with his mother. Consequently, notwithstanding the rather substantial body of evidence tending to show parental misconduct and/or inability on the part of both parents, we hold that the judge did not abuse his discretion in declining to terminate the mother’s parental rights with respect to the son.

Decided May 25, 1990.

J. Richardson Brannon, for appellant (case no. A90A0518).

L. Eddie Benton, Jr., for appellant (case no. A90A0519).

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Charles W. Smith, Jr., Special Assistant Attorney General, for appellant (case no. A90A0520).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0611.
    FOWLER v. THE STATE. WIMBERLY v. THE STATE.
    A90A0612.
    (395 SE2d 254)
   Banke, Presiding Judge.

The defendants were jointly indicted for unlawful possession of cocaine. We granted their separate applications for an interlocutory appeal from the denial of their motions to suppress the contraband.

While assisting the FBI in attempting to locate a federal fugitive, the Sheriff of Truetlen County observed a truck pass by him in which appellant Fowler was a passenger. The sheriff knew Fowler and also knew that he was an acquaintance of the fugitive in question. The sheriff testified that there was nothing suspicious about the conduct of the truck’s occupants but that he decided to pursue and detain the vehicle for the purpose of questioning Fowler concerning the whereabouts of the fugitive. Accompanied by FBI and GBI agents, the sheriff thereafter encountered the truck “head-on on a little narrow dirt road,” whereupon he stopped his unmarked car in the middle of the road and activated its flashing blue lights. The driver, appellant Wimberly, stopped the truck immediately and, at the sheriff’s request, stepped out and produced his identification. The sheriff testified that Wimberly “kept putting his left hand in his trouser pocket,” despite his (the sheriff’s) request that he remove his hand from his pocket. The sheriff stated that he accordingly reached into Wimberly’s pocket and “grabbed his hand and removed it,” thereby discovering a bag of marijuana. Wimberly was arrested for violating the Controlled Substances Act on the basis of this discovery; and a search of the interior of the truck conducted incident to that arrest resulted in the seizure of a small quantity of cocaine, the contraband upon which the present prosecution is predicated. Held:

Decided May 25, 1990.

Harold D. McLendon, for appellant (case no. A90A0611).

We must agree with the appellants’ contention that the discovery of the cocaine in the truck was the fruit of an unlawful detention. “A person is seized . . . when by means of physical force or show of authority his freedom of movement is restrained. [Cits.] The subjective intention of the officer to detain the defendant had he attempted to leave is irrelevant except insofar as that intention may have been conveyed to the defendant[.] [Cit.]” Sabel v. State, 248 Ga. 10, 11-12 (282 SE2d 61) (1981). The appellants’ freedom of movement clearly was restrained when their pathway was blocked by the police vehicle. At that point, a limited investigative inquiry was authorized only if the intrusion was supported by reasonable suspicion of criminal wrongdoing. See generally Alexander v. State, 166 Ga. App. 233 (2) (303 SE2d 773) (1983). “[W]here no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen. Where this occurs, the penalty exacted by the law is that evidence turned up as a result of such intrusion may not be introduced against the defendant on the trial of his case.” Brooks v. State, 129 Ga. App. 109, 111-112 (198 SE2d 892) (1973). Accordingly, we are constrained to hold that the appellants’ motions to suppress should have been granted.

Judgment reversed.

Birdsong and Cooper, JJ., concur.

Kathy S. Palmer, for appellant (case no. A90A0612).

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.