text:
    A93A0579.
    WAINWRIGHT v. THE STATE.
    (432 SE2d 555)
   Beasley, Presiding Judge.

Wainwright was convicted of six counts of aggravated assault with a deadly weapon. OCGA § 16-5-21 (a) (2). He was sentenced as a recidivist, under OCGA § 17-10-7 (a), to six concurrent twenty-year terms, to serve fourteen years in prison and six years on probation.

The offenses were committed in the early morning hours on February 2, 1992. Wainwright, his friend Stephens, and another friend arrived at a local establishment shortly before closing time. Bobby Ingram and a number of his relatives and friends were there playing pool and drinking. Ingram suggested that his party adjourn to his home. The evidence is in conflict as to whether Wainwright and his two friends were invited as well, but they went with the others to Ingram’s trailer and were not prevented from entering. An argument later developed between Stephens and Ingram, and Ingram asked Wainwright and his friends several times to leave.

The evidence about what transpired thereafter sharply conflicted. Wainwright testified that he and his friends were in the process of leaving when the host and a number of the guests, armed with various weapons and household implements, attacked him. The State’s witnesses all testified that they had been unarmed and had not provoked Wainwright, and that after Stephens and one of the other guests began scuffling, Wainwright attacked several of those present with a metal level taken from his truck. Several of them suffered severe beatings, and at least one sustained broken limbs.

1. At Wainwright’s request, the court charged the jury on self-defense. Wainwright also requested a charge that a person is justified in using force against another to the extent that he reasonably believes that such force is necessary to defend a third person. Arguing that he assaulted the victims only in defense of Stephens, Wainwright contends the court erred in refusing to give this requested charge.

“A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” (Citations and punctuation omitted.) Jirles v. State, 204 Ga. App. 268 (2) (419 SE2d 117) (1992). Thus, before such a charge is warranted, there must be legally sufficient evidence in support of the asserted defense. Wells v. State, 186 Ga. App. 62, 63 (2) (366 SE2d 397) (1988).

Although Wainwright asserts that some of the testimony given by the State’s witnesses may be construed as consistent with the theory that he assaulted some of the victims with the level in defense of Stephens, his own testimony on cross-examination contraindicates any such motivation. The prosecutor asked Wainwright specifically: “I want to make sure, you’re not saying you hit any of these people because you were defending Steve?” Wainwright answered: “No, sir, I was defending me.” This answer was reinforced and repeated several times. Given Wainwright’s clear testimony in this regard, the trial court did not err by refusing to give the requested charge. See Smith v. State, 260 Ga. 274, 276-277 (5) (393 SE2d 229) (1990); Jirles, supra.

2. Wainwright’s next two enumerations of error are directed at his sentencing as a recidivist under OCGA § 17-10-7 (a) after the State introduced evidence of two prior felony convictions.

(a) Citing Riggins v. Stynchcombe, 231 Ga. 589 (203 SE2d 208) (1974), he maintains the court erred in sentencing him pursuant to OCGA § 17-10-7 (a) because he was not indicted as a recidivist.

“Under Georgia’s old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, it was required that in order for any prior convictions to be considered in aggravation of punishment, they had to be included in the indictment. [Cit.] Since 1974 when Georgia adopted judge sentencing, OCGA § 17-10-2, it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state’s intention to seek recidivist punishment and of the identity of the prior convictions. [Cits.]” Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109) (1987). Of course, if the prior conviction is an element of the crime, it must be alleged and proved. Favors, supra at 180 (2). Also, where the nature of the offense is changed from misdemeanor to felony by its repetition, such as felony shoplifting under OCGA § 16-8-14 (b) (1) (C), recidivism must be alleged in the indictment “so that the indictment reflects the maximum punishment to which the defendant can be sentenced.” Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988). This aspect of Riggins, involving the grand jury’s role, seems to have been ignored in State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984), where an increased maximum was allowed even though the basis was not alleged in the indictment. The notice to defendant required by OCGA § 17-10-2’s procedural rule was regarded as sufficient to serve “the only purpose” for including prior convictions in the indictment. Id. at 854-855. Although the Supreme Court did not compare or equate OCGA § 16-13-30 (d) with OCGA § 17-10-7, both provisions give direction as to the imposition of punishment under specified aggravated circumstances. However, OCGA § 16-13-30 (d) increases the maximum from 15 years to life for the subsequent offense, whereas OCGA § 17-10-7 does not increase the maximum but adds weight in favor of its imposition.

In Wainwright’s case, the maximum penalty for one aggravated assault was twenty years. OCGA § 16-5-21 (b). That was not changed by OCGA § 17-10-7. The grand jury exposed him to a maximum 20-year sentence, and he was given notice of it by the indictment. OCGA § 17-10-7 merely gives direction as to the imposition of punishment under certain aggravated circumstances. Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985). Accord Mitchell v. State, 202 Ga. App. 100 (413 SE2d 517) (1991); Rhodes v. State, 200 Ga. App. 193, 199 (7) (407 SE2d 442) (1991); State v. Freeman, 198 Ga. App. 553, 556-557 (3) (402 SE2d 529) (1991). See generally Mays v. State, 262 Ga. 90, 91-92 (1) (b) (414 SE2d 481) (1992). The procedure for doing so, which requires advance notice to defendant, is set out in OCGA § 17-10-2.

Jenkins v. State, 201 Ga. App. 654, 656-657 (3) (413 SE2d 460) (1991), cited by Wainwright, indicates that the rule is that the indictment must allege the prior offenses, if they are to constitute the basis for enhanced punishment under OCGA § 17-10-7. This dicta in Jenkins is disapproved and will not be followed. Darty is quoted, including its citation of Black (Black v. Caldwell, 231 Ga. 589 (203 SE2d 208) (1974)) (cited by appellant as Riggins; see footnote 1), but those two cases differ from Jenkins’s situation. He was convicted of burglary, not a crime which carried an increased maximum sentence under unindicted circumstances. Where the prior convictions do no more than subject defendant to a greater risk of the maximum sentence (OCGA § 17-10-7 (a)) or even to a certainty of the maximum sentence (OCGA § 17-10-7 (b)) for the crime as indicted, the prior convictions need not be alleged in the indictment. Imposition of the maximum sentence has already been authorized by the grand jury’s action, and adequate advance notice to defendant is assured by OCGA § 17-10-2 (a).

The sentences imposed on Wainwright, 20 years imprisonment on each count, are within the statutory limits for the crimes as indicted, see OCGA § 16-5-21 (b), and within the trial court’s discretion. The judgment will not be disturbed. Rhodes, supra.

(b) Wainwright also contends he did not receive “unmistakable advance warning” as required by State v. Hendrixson, supra at 854, that the State intended to introduce the prior convictions in aggravation of sentence. Prior to the selection of a jury on the day trial commenced, the prosecutor provided Wainwright’s counsel with written notice that included the dates of the prior convictions, the nature of the offenses, and the sentences imposed. Both Wainwright and his counsel were given oral notice during the week prior to trial that the State would introduce prior convictions. At the sentencing, certified copies were introduced. It has been held that receipt prior to jury selection constituted timely notice pursuant to OCGA § 17-10-2. Day v. State, 188 Ga. App. 648, 650 (8) (374 SE2d 87) (1988).

The statute requires that “clear notice” be given. Potts v. State, 241 Ga. 67, 83 (14) (243 SE2d 510) (1978). Hendrixson does not detail what type of notice was given or how specific it was or when it was given; it only notes that the notice was in “compliance.” Hendrixson, supra at 855. Wainwright neither alleges nor shows any harm from any lack of specificity in the notice or from the timing of its giving, so we are compelled to conclüde that the notice received by Wainwright was sufficient.

3. Wainwright enumerates as error the court’s refusal to allow him to testify in his own behalf in mitigation of sentence. The colloquy between his counsel and the court, as revealed by the record, does not support his contention that he was prohibited from testifying.

After the prosecutor had presented evidence in aggravation of sentence, the court inquired whether defense counsel had any evidence to present in mitigation. Wainwright’s counsel responded: “I would assume then that he would have the opportunity to get up here and take the stand and testify maybe as to why he pled guilty, that type of thing?” There ensued some conversation as to whether such evidence would be helpful since, as the court pointed out, the convictions existed and Wainwright could not set them aside. Defense counsel concluded by saying: “No, sir. I can’t imagine any evidence we could offer.”

The trial court did not rule that Wainwright could not testify. Even if the trial court’s comment about the prior convictions was incorrect (see Potts, supra at 83 regarding defective convictions), Wainwright did not object or request to make an offer of proof as to the content of his testimony. His response by counsel was merely to indicate that Wainwright had no evidence to offer. This silence deprived him of the right to complain on appeal. See Smith v. State, 192 Ga. App. 768, 771 (386 SE2d 530) (1989).

Decided May 6, 1993 —

Reconsideration denied June 1, 1993.

Edward N. Davis, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

        Riggins is one of three cases dealt with in the Supreme Court opinion cited. Appellant’s argument actually relates to the positions taken by the other two appellants, Black and Couch. Their indictments, like Wainwright’s, did not allege any prior convictions. They complained that this meant that the grand jury did not expose them to the greater maximum sentences and also that this resulted in their not having proper notice of their exposure to greater maximum sentences. The maximum for one auto theft was seven years, whereas the maximum for a third or subsequent offense was twenty years. Former Code Ann. § 26-1813 (a), (b). Black was sentenced to 20 years and Couch was sentenced to 15 years. Riggins’ indictment, on the other hand, did allege the prior convictions. He complained that they were used to convict him because they were known by the jury which decided guilt or innocence.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A0048.
    GARY v. HOBSON.
    (431 SE2d 753)
   Pope, Chief Judge.

Plaintiff Michael Gary attempted to file a complaint for personal injury in the Superior Court of Lowndes County. In the complaint plaintiff alleges that while he was incarcerated at the State Correctional Institution in Valdosta the defendant, who was at the time a fellow prisoner, attacked and injured him on July 17, 1990. The complaint alleges the defendant now resides in Kentucky. Although the record does not reflect when the plaintiff presented the complaint for filing, the record contains a letter to plaintiff from the trial judge, dated July 14, 1992, informing plaintiff that because the complaint alleges the defendant resides in Kentucky the Superior Court of Lowndes County “obviously has no jurisdiction” and stating that the documents he sought to file with the court were being returned to him. Obviously, then, plaintiff attempted to file the complaint within the applicable two-year period of limitation. Plaintiff then filed a motion to file the complaint in which he cited the Georgia Long Arm Statute. The motion was denied and plaintiff appeals.

The trial court erred in refusing to permit plaintiff to file the complaint. Pursuant to OCGA § 9-10-91 (2), personal jurisdiction may be exercised over a nonresident who “[c]ommits a tortious act or omission within this state. . . .” Pursuant to OCGA § 9-10-93, venue in a case based on long arm jurisdiction “shall lie in any county wherein . . . the act or omission occurred. . . .” Plaintiff’s complaint alleges defendant committed the tortious act which forms the basis for his complaint in Lowndes County. Both jurisdiction and venue, then, are proper in Lowndes County providing, of course, that defendant is properly served. Even if jurisdiction and venue are not properly founded in the trial court in which a complaint is filed, it is improper for the trial court to refuse to permit the complaint to be filed on such grounds because personal jurisdiction and venue are defenses for the defendant to raise, and may be waived if not properly raised. OCGA § 9-11-12 (h). On remand, the trial court is ordered to permit plaintiffs complaint to be filed nunc pro tunc of the date it was received by the clerk of the court.

Decided June 1, 1993.

Michael Gary, pro se.

Tony Hobson, pro se.

Judgment reversed with direction.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A0109.
    BENNETT et al. v. BRIDGESTONE/FIRESTONE, INC.
    (431 SE2d 748)
   Pope, Chief Judge.

Plaintiffs, the Bennetts, filed a complaint against defendant Bridgestone/Firestone, Inc. alleging they were injured when the automobile driven by Mrs. Bennett struck a telephone pole because the brakes failed. Plaintiffs alleged the brake failure and the resulting accident and injuries were proximately caused by defendant’s negligent repair of the brakes. When the case came before the trial court for trial, the parties agreed to submit the case to the judge on stipulated facts for his ruling on defendant’s motion for “directed verdict.” The trial judge correctly treated the proceeding as one pursuant to OCGA § 9-11-41 (b) and, after a presentation of stipulated facts, entered an order granting judgment in favor of defendant and dismissing the complaint “because plaintiff[s] failed to establish factual issues of negligence to be resolved by the trier of fact.” Plaintiffs appeal.

1. We reject plaintiffs’ argument that the trial judge erred in ruling before permitting plaintiffs to present evidence and in refusing to consider relevant portions of Mrs. Bennett’s deposition. The record shows the parties consented to try the case on stipulated facts and that plaintiffs were allowed ample opportunity to present facts for stipulation by the parties. Thus the trial court did not err in refusing to permit plaintiffs deposition to be admitted into evidence.

2. “Under [OCGA § 9-11-41 (b)], a trial judge in a non-jury case expressly has the power to adjudicate the case on the merits at the conclusion of plaintiff’s case.” Pichulik v. Air Conditioning &c. Co., 123 Ga. App. 195, 197 (2) (180 SE2d 286) (1971). Plaintiffs argue the wording of the order indicates it was based on the trial judge’s conclusion that plaintiffs’ evidence failed to create an issue of negligence and that the trial judge did not arrive at a ruling after weighing the evidence. “[I]n cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. ... It logically follows that the trial judge, in such cases, can determine when essential facts have not been proved.” Comtrol, Inc. v. H-K Corp., 134 Ga. App. 349, 352 (214 SE2d 588) (1975). Thus, the order in this case must be construed as a finding by the judge, as trier of fact, that plaintiffs did not prove defendant’s negligence. We cannot hold as a matter of law that plaintiffs did prove defendant’s negligence and we must affirm the judgment of the trial judge as trier of fact.

The stipulated facts showed plaintiffs took their 1979 Cadillac to defendant for brake repairs on April 3, 1986. At that time the odometer showed it had been driven over 91,000 miles. Noted on the service invoice was the complaint: “Starts with hard pedal and now no brakes.” A rebuilt power booster, a part of the brake system, was installed. Plaintiffs returned the following day, April 4, and the invoice notes the complaint: “Sometimes no brakes.” A master brake cylinder was installed and the parties stipulated that the car was returned to plaintiffs April 5. At 2:40 a.m. on April 6 Mrs. Bennett was driving the car and experienced brake failure, causing her to leave the roadway and strike a telephone pole. The brakes worked properly between the time it was returned to plaintiffs and the time of the accident, although there is no evidence where or how many miles the car was driven in that period. A wrecker was used to move the car from the scene of the accident, and plaintiffs regained possession of the car in August 1986. The car was not examined to determine the cause of the accident, and plaintiffs finally disposed of the car for its junk value.

We cannot hold the trial judge erred in finding the plaintiff did not prove defendant’s negligence. Although the parties stipulated that the accident occurred when the brakes failed, this alone does not establish as a matter of law that the brakes failed due to defendant’s negligence. Plaintiffs rely on Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94 (400 SE2d 389) (1990), to argue that the stipulation concerning Mrs. Bennett’s testimony alone was sufficient to create an issue of fact concerning defendant’s negligence. Even if her testimony would be sufficient to sustain a verdict in her favor, this evidence does not require a verdict in favor of plaintiffs as a matter of law. Relying on Bridgestone Firestone v. Green, 198 Ga. App. 858 (403 SE2d 442) (1991), plaintiffs argue an issue for the trier of fact is created pursuant to the doctrine of res ipsa loquitur. Even assuming the facts of this case show the requisite exclusive control by the defendant over the dangerous instrumentality, despite the fact that Mrs. Bennett had driven the car without incident after picking it up from defendant’s shop, we do not hold that plaintiffs are entitled to judgment as a matter of law. In order for res ipsa loquitur to apply, the facts must also show the injury was the kind which ordinarily does not occur in the absence of someone’s negligence. Id. at 861. As the facts show the car in question was approximately seven years old and had been driven over 91,000 miles, it cannot be said that brake failure in such a vehicle would ordinarily occur only due to someone’s negligence. The stipulation concerning Mrs. Bennett’s testimony that the brakes failed the day after defendant made certain repairs to the brakes is insufficient evidence that the brakes failed due to defendant’s negligence.

Decided June 1, 1993.

Daniel T. Donohue, for appellants.

Branch, Pike, Ganz & O’Callaghan, Alfred B. Adams III, for appellee.

We also reject plaintiffs’ argument that by admitting the invoices for repairs made by defendant, which included a notation that the work was subject to an undefined limited warranty, the trial judge expanded the issues in the case to include a claim for breach of warranty and expanded the proceedings to a hearing on evidence other than the stipulated facts. The transcript of the hearing at which the facts were stipulated shows the trial judge admitted the invoices because they were not merely records of the amount paid to defendant but contained notations as to complaints and repairs which reflected the stipulated facts.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0210.
    BROWN v. HITCH.
    (431 SE2d 751)
   Beasley, Presiding Judge.

Plaintiff Brown appeals the grant of summary judgment to defendant Hitch in this action for breach of an employment contract.

Hitch is the director of a professional corporation which supplies physicians to Candler General Hospital’s emergency room. Brown, a physician, entered into an agreement with Hitch to provide his services in the hospital emergency room.

At issue is construction of the following provision of the agreement between Brown and Hitch: “6. Physician [Brown] shall purchase a professional liability insurance policy with limits of not less than $1,000,000.00, and insure that said policy shall be in effect at all times during the terms of the Agreement.” Under paragraph 7 (c), Hitch was to reimburse Brown “for the cost of professional liability insurance obtained by Physician in accordance with the provisions of Section 6 hereof upon Physician provided (sic) with a copy of his invoice and cancelled check in payment thereof.” The agreement did not specify or require the purchase of any particular type of professional liability insurance policy, only that $1,000,000 of coverage be maintained.

The parties executed the employment agreement on July 1, 1987, which provided that, “The term of this Agreement shall extend for one (1) year from the date of execution, and shall be automatically renewed for successive one (1) year terms, unless this Agreement is terminated as hereinafter provided.” The contract was renewed annually, until terminated by Brown effective September 1990. During the pendency of the agreement, Brown purchased a “claims made” policy of professional liability insurance, which provided coverage for claims which accrued and were reported to the insurer during the effective dates of the policy. Hitch reimbursed him for the cost of that insurance. In anticipation of terminating his employment Brown sought advice from his insurance agent. As a result, he purchased a separate “tail end” policy to cover claims asserted after the effective date of the primary policy. This insurance became effective upon cancellation of the primary policy on October 1, and after termination of the employment agreement.

In October 1990, Brown sent a written request to Hitch for reimbursement for the cost of tail coverage under paragraphs 6 and 7 of the employment agreement. Hitch declined on the basis that he was not contractually obligated to provide reimbursement for insurance not in effect “during the terms of the agreement.”

1. Brown asserts as error the trial court’s findings that the agreement is unambiguous, but that even if an ambiguity exists, application of the rules of construction leaves no uncertainty as to its meaning.

“It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. [Cit.] If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” Bd. of Regents v. A. B. & E., 182 Ga. App. 671, 673 (357 SE2d 100) (1987).

“The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical and arbitrary rules of construction.” OCGA § 13-2-3. “ ‘[I]n construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual.’ [Cit.]” Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989).

Decided June 1, 1993.

Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, Bar bara N. McKay, for appellant.

As the trial court found, Hitch’s uncontradicted deposition testimony reveals the intent of the parties with respect to the contract provision at issue. The court concluded: “The insurance requirement is included in the agreement with emergency services doctors only to satisfy Candler Hospital’s medical staff rules mandating professional liability coverage. The policy covers the individual physician, who is not a Candler employee, and neither Dr. Hitch [n]or Candler is an insured. Since it is Dr. Hitch’s practice to include the provision only to satisfy hospital staff rules and because the individual physician is the sole insured, whether the physician is covered after termination of the relationship ending his emergency services at Candler is immaterial to Dr' Hitch. His concern is to provide physicians to Candler and to do so, he must comply with staff rules. He intended only to pay for insurance in effect while the physician provided services at Candler. That is what the contract plainly says.”

It was further shown that Brown elected for the duration of the agreement to purchase “claims made” coverage, and Hitch reimbursed him for such coverage. That affirmative act by Brown and Hitch’s conduct in accepting it clearly establishes their understanding of the meaning placed on paragraph 6 of the agreement. “ ‘ “The construction placed upon a (contract) by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Cit.)’ . . . [Cit.]” Purcell v. Allstate Ins. Co., 168 Ga. App. 863, 867 (310 SE2d 530) (1983).

We are satisfied that the trial court properly effectuated the intent of the parties in construing the agreement so as not to require reimbursement for “tail insurance.”

2. Brown contends that the trial court improperly shifted the burden to him as non-movant on summary judgment to show intent of the parties. Hitch discharged his duty as movant , by showing an absence of evidence to support Brown’s claim for reimbursement of tail insurance purchased after he had terminated the contract. Brown was then required to point to specific evidence giving rise to a triable issue under OCGA § 9-11-56 (e). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Since he was unable to do so, summary judgment was properly awarded the movant/defendant.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Kent, Williamson & Brannon, A Martin Kent, Bouhan, Williams & Levy, Frank W. Seiler, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A0764.
    ELROD v. THE STATE.
    (432 SE2d 808)
   McMurray, Presiding Judge.

Defendant Elrod appeals his conviction of the offenses of aggravated sodomy, attempt to commit aggravated sodomy, and cruelty to children. Held:

1. Defendant enumerates as error the admission into evidence of the warrant under which he was arrested. At trial, defendant’s only objection to this evidence was that the warrant was irrelevant since it charged the offense of child molestation, an offense different from that for which defendant was indicted. On appeal, defendant adds a contention for the first time that the affidavit attached to the arrest warrant was improperly admitted since it was a document such as substitutes for testimony and may not be taken to the jury room.

“ ‘ “If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.” (Cits.) An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal.’ Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395).” Kelly v. State, 204 Ga. App. 789 (1) (420 SE2d 651). The objection to the relevance of the evidence in question is without merit since it is well settled that all of the circumstances connected with an accused’s arrest are admissible at trial for whatever value the jury desires to place on them and need not be excluded because they are prejudicial or incidentally place the defendant’s character in issue. Coney v. State, 198 Ga. App. 272, 273 (3) (401 SE2d 304); Leonard v. State, 197 Ga. App. 221, 222 (1) (398 SE2d 250).

The additional issues regarding admission of the arrest warrant, which defendant attempts to raise for the first time on appeal, were not preserved by proper objection at trial, are deemed waived, and will not be considered. Lewis v. State, 205 Ga. App. 29 (1), 30 (421 SE2d 339); Smith v. State, 204 Ga. App. 576, 577 (2a) (420 SE2d 29); Walls v. State, 204 Ga. App. 348, 349 (2) (419 SE2d 344).

2. Defendant’s remaining enumeration of error questions the sufficiency of the evidence to authorize his conviction. The State’s evidence shows a history of repeated sexual conduct by defendant toward the victim including an incident during which defendant unsuccessfully attempted to force the victim’s mouth to his penis. During another incident, defendant held the struggling victim down while he ejaculated on him. The evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses of attempt to commit aggravated sodomy and cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Yebra v. State, 206 Ga. App. 12, 14 (424 SE2d 318).

Decided April 15, 1993.

James L. Bass, Jeffrey L. Floyd, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

However, the State has failed to present sufficient proof of defendant’s guilt of the offense of aggravated sodomy. In this connection, the State presented evidence that the defendant rubbed his penis against the victim’s penis and “butt,” and in his “crack.” The genital to genital contact did not constitute sodomy as defined in OCGA § 16-6-2 (a). Furthermore, the record does not demonstrate that the terms “butt” and “crack” were used as references to the victim’s anus rather than the inner cheeks of his buttocks. The evidence was not sufficient to prove beyond a reasonable doubt that defendant had committed an act of sodomy, that is, a sexual act involving the sexual organs of one person and the mouth or anus of another. OCGA § 16-6-2 (a). Consequently, defendant’s conviction of the offense of aggravated sodomy must be reversed.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0333, A93A0334.
    McKIN v. GILBERT; and vice versa.
    (432 SE2d 233)
   Beasley, Presiding Judge.

Plaintiff Gilbert was riding her horse on Georgia Highway 95 at 3:15 a.m., when she was allegedly struck from the rear by an automobile being driven by defendant McKin. The collision occurred on July 28, 1991, prior to the effective date of repeal of the Georgia Motor Vehicle Accident Reparations Act of 1974, former OCGA § 33-34-1 et seq., October 1, 1991. Ga. L. 1991, p. 1608. Gilbert sued McKin to recover damages for her injuries and the death of her horse. We granted companion applications for appeal to consider two interlocutory rulings relating to the joinder of party defendants.

McKin admitted drinking two beers between 8:00 and 10:00 p.m. on the night of the incident. She then drove her car toward Chattanooga, stopping at a cocktail lounge in Tennessee from 11:00 p.m. until 2:00 a.m., where she consumed less than 12 ounces of beer. Upon leaving, she was stopped by police for weaving, given a field sobriety test, and released. She proceeded on her way, but was stopped shortly thereafter by a state patrolman, at whose request she produced a driver’s license and proof of insurance. She was again permitted to continue.

As she drove southbound along Highway 95, she observed Gilbert one or two car lengths ahead riding her horse in the southbound lane of traffic. It was a foggy night and the horse and rider were not illuminated. She applied the brakes but was unable to avoid hitting the horse. She stopped her car, got out to observe both Gilbert and the horse lying in a ditch at the side of the road, and drove to a nearby house to summon help. She returned to the accident site and reported to an unidentified man that she had called an ambulance. She left the scene and drove to the home of family members, who accompanied her at 4:15 a.m. to the sheriff’s office. She reported the accident, took a breath test which registered .18, and was charged with DUI.

The injured party, Gilbert, admitted that she had consumed two beers at about 11:00 p.m. that evening. She drank two more beers at the home of friends until about 1:00 a.m., when she drove home alone. She went directly to the barn, saddled her horse, and rode along the paved portion of Highway 95 carrying a flashlight. She heard a car and saw headlights coming around a curve in the road. The last thing she recalled was shining her flashlight behind her and holding the horse. As a result of the impact with McKin’s car, Gilbert was thrown from the horse and injured, and the horse was killed. Gilbert’s blood alcohol level was .11.

Case No. A93A0333

1. Defendant McKin contends the trial court erred in granting Gilbert’s motion to join McKin’s automobile liability insurer, Dairy-land Insurance Company, as a party defendant to be sued directly in this negligence action against its insured.

The Dairyland policy provided $15,000 in liability coverage. The carrier defended the claim against McKin but rejected Gilbert’s demand to settle at policy limits, contending that Gilbert was at least 50 percent at fault. Dairyland eventually offered $2,500 in settlement, which Gilbert rejected.

Gilbert sought joinder of McKin’s insurer as an indispensable party under OCGA § 9-11-19, as well as under the permissive joinder provision of OCGA § 9-11-20. Her motion was grounded on the assertion that Dairyland had engaged in bad faith in failing to offer the policy limits in settlement. She claimed joinder was necessary, reasoning that “[bjecause ... a judgment in this case will exceed $15,000, the plaintiff should not be required to await an excess judgment, and then rely on McKin to execute an assignment in Gilbert’s favor so as to allow Gilbert to proceed against Dairyland directly, which would result in a second, otherwise unnecessary lawsuit and take valuable time from the court.” Abusive litigation damages were sought against Dairyland for continuing the proceedings without substantial justification pursuant to OCGA § 51-7-81 (2).

“ ‘ “In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial. (Cits.)” (Cit.) This principle is operative not only with reference to liability insurance but also with regard to no fault coverage. (Cits.)’ [Cits.] ‘We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice. The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. (Cit.) Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations.’ [Cit.]” Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 176 (1) (421 SE2d 767) (1992).

Unlike Reybitz, in which a negligence action against the tortfeasor included a separate PIP claim against the insurer and we approved bifurcated trial of the separate issues, Dairyland was joined as a party defendant in the negligence action against McKin. “The general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy.” Hartford Ins. Co. v. Henderson & Son, 258 Ga. 493, 494 (371 SE2d 401) (1988). None of those exceptions is present. Compare the following common carrier cases where direct action against the insurer is authorized by statute to further the policy of the Motor Carrier Act: Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992); Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992); Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) (overruled in Grissom to the extent that it suggested a new equal protection analysis).

It follows that Dairyland may not be sued directly as a party defendant in Gilbert’s action against McKin. Hartford Ins. Co. v. Henderson & Son, supra. Of course, for the sake of judicial economy and in order to remove the issue of insurance from the jury’s consideration during the trial on the negligence claim, it would be well to utilize the procedure described in Reybitz, i.e., “a separate trial of the issues. . . .” Id. at 178. Bifurcation avoids the repetition of evidence common to both claims, by having the same jury decide, albeit serially, both the negligence claim and any subsequent no-fault claim which may be authorized against the insurer. This economizes for everyone involved, i.e., court, witnesses, jurors, parties, and counsel, but yet precludes the evil of prejudice. However, the law does not currently permit it.

2. Gilbert’s claim against Dairyland for abusive litigation under OCGA § 51-7-80 et seq., is premature in any event. Under OCGA § 51-7-84 (b), such a claim “requires the final termination of the proceeding in which the alleged abusive litigation occurred and must be brought within one year of the date of final termination.” The proper procedure is set out in Talbert v. Allstate Ins. Co., 200 Ga. App. 312 (408 SE2d 125) (1991).

Case No. A93A0334

3. Plaintiff Gilbert contends the trial court erred in denying her motion for joinder of Larry Mason, d/b/a Palomino Restaurant and Lounge, the establishment at which McKin was allegedly a patron on the night in question. She contends that Mason was a joint tortfeasor under OCGA § 51-1-40 (b) for having sold beer to McKin, who was “in a state of noticeable intoxication, knowing that [she] will soon be driving a motor vehicle. . . .” Joinder was sought both as an indispensable party under OCGA § 9-11-19 and under the permissive joinder provision of OCGA § 9-11-20.

The threshold question is whether Georgia has jurisdiction over the nonresident lounge owner with respect to this alleged tort. Jurisdiction was predicated on subsection (3) of our Long Arm Statute, OCGA § 9-10-91, which is applicable to tort actions arising from acts and omissions occurring outside the state which lead to injury inside the state. Gilbert’s motion for joinder was based on the factual assertion that, “[t]he Palomino regularly solicits business in this state. . . .” There is no evidence of record that Mason regularly solicited business in Georgia and no basis to confer personal jurisdiction under OCGA § 9-10-91 (3). The only evidence connecting Mason to the alleged tort is McKin’s testimony that she was present in his establishment from 11:00 p.m. until 2:00 a.m. on the night of the incident and that she consumed one beer while there. Gilbert failed to produce any evidence that Mason had done any of “the acts set forth in OCGA § 9-10-91 which must be done in order to subject [him] to personal jurisdiction of a Georgia court. . . . The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513) (1987). Likewise, there is no jurisdiction over Mason in this suit.

Decided June 1, 1993.

Clifton M. Patty, Jr., for appellant.

Bruce & Hentz, W. Davis Hentz, for appellee.

Judgment in Case No. A93A0333 reversed. Judgment in Case No. A93A0334 affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Smith, Judge. Blackburn, Judge,

text:
    A93A0104.
    DEPARTMENT OF HUMAN RESOURCES v. HURST.
    (432 SE2d 236)
   Smith, Judge.

The Department of Human Resources of the State of Georgia (DHR), acting in the interest of a minor child, initiated this contempt action against Steve Hurst to recover an arrearage in child support payments due pursuant to a prior divorce decree. Hurst filed an answer and counterclaim, asserting that the mother of the child had informed him subsequent to their divorce that he was not the child’s father. In response to Hurst’s request, the trial court ordered blood tests for Hurst, the mother, and the child. The trial court then certified this decision for immediate review because of the conflict with the prior divorce decree, which had established that Hurst was the child’s father. We granted DHR’s application for interlocutory appeal, and DHR filed this appeal.

The parties agree that the final judgment and decree entered in the 1984 divorce action established that appellee was the father of the minor child and set forth visitation rights and child support obligations. Appellant contends this prior judgment constituted a binding determination of paternity so that appellee is barred by the doctrine of res judicata from again litigating the issue of paternity.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” The prior divorce litigation between appellee and the child’s mother resulted in a final judgment in which the rights and obligations of the divorcing parties to their minor child were established. Appellee acknowledges that this final divorce decree was not appealed or set aside. The issue of paternity therefore was effectively adjudicated in the prior divorce action. See Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984); see also Fleeman v. Dept. of Human Resources, 208 Ga. App. 97 (430 SE2d 135) (1993). As a party to that prior action, appellee is bound by that judgment. The issue of paternity is res judicata as to appellee, and he cannot again litigate the issue of paternity in this proceeding. Dept. of Human Resources v. Brown, 196 Ga. App. 875 (1) (397 SE2d 73) (1990); see Macuch, supra. The order requiring that appellee, the mother, and the minor child submit to blood tests is erroneous and must be reversed. Brown, supra at 876 (1).

Judgment reversed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

Under the particular facts of this case, I concur with the majority opinion that the appellee is barred from contesting the issue of his paternity. However, I wish to express some reservations about the absolute rule regarding the application of the doctrine of res judicata endorsed by the majority opinion.

Generally, where a final judgment in a prior divorce proceeding adjudicates the issue of paternity, the father is bound by that judgment and may not resurrect the issue in a subsequent child support or contempt proceeding brought against the father by the Department of Human Resources. See Macuch v. Pettey, 170 Ga. App. 467 (1) (317 SE2d 262) (1984). However, there are exceptions to that general rule, one of which must be where the prior judgment was obtained by fraud.

In Macuch, in holding that the appellant was estopped from disputing paternity because of a prior divorce judgment which addressed that issue, this court specifically emphasized the absence of any allegation of fraud or mistake over the paternity of the child as stipulated in the divorce decree. In Fleeman v. Dept. of Human Resources, 208 Ga. App. 97 (430 SE2d 135) (1993), this court again noted that paternity could not be relitigated, “absent fraud that would cause the divorce judgment to be set aside.” (Emphasis supplied.)

If ever there was fraud that would cause setting aside a divorce judgment ordering a man to pay child support, concealing another man’s paternity of the child would be such fraud. However, in order to prevent subsequent denials of paternity that are themselves fraudulent, before a party should be allowed to contest a prior adjudication of paternity based on fraud, the party should be required to produce convincing evidence of the fraud, and to pay into the court registry the child support obligation established under the prior judgment during the pendency of the subsequent proceeding. (Presumably, the other parent would need to be joined, in order to facilitate setting aside that fraudulent prior judgment.)

In the instant case, if the appellee already had in his possession a valid blood test that demonstrated his non-paternity of the child, the result here would very likely be different. However, the appellee actually presented no evidence supporting his claim that the prior adjudication of his paternity was obtained through fraud. Rather, he merely asserted in his unverified answer and counterclaim that, following the divorce decree, his ex-wife told him that he was not the father of the child.

Decided June 2, 1993.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, for appellant.

G. Martin Adcock, for appellee.

Mere allegations of fraud are insufficient to allow challenging a prior adjudication of paternity based on fraud. For that reason, I agree with the majority opinion that the trial court erred in allowing the appellee to relitigate his already-established paternity.


author: Andrews, Judge.

text:
    A93A0168.
    HOLLAND et al. v. HOLLAND HEATING & AIR CONDITIONING, INC. et al.
    (432 SE2d 238)
   Andrews, Judge.

Selwyn W. Holland (Holland) et al. appeal from portions of the jury verdict and judgment entered in favor of Jack Hively (Hively) and Holland Heating & Air Conditioning, Inc. (Holland Heating).

1. The jury entered a verdict in the amount of $18,000 in favor of Hively on a breach of contract claim against Holland based on evidence that Holland had failed to comply with a written agreement with Hively to jointly borrow working capital for Holland Heating. In his first two enumerations of error, Holland claims the agreement was too vague to be enforceable as a contract, and that the award of $18,000 was contrary to the evidence.

Holland and Hively agreed to form the company known as Holland Heating, took equal interests in the company, and subsequently agreed in writing that: “Working and payroll capital shall be financed with 90 day notes and shall be signed by Jack Hively and Selwyn W. Holland. This agreement is in effect until such time as there is mutual agreement to change or as directed by the Board of Directors of Holland Heating & Air Conditioning, Inc.” Holland testified that the agreement was signed after he and Hively discussed Holland Heating’s need for capital. It was Holland’s understanding that to the extent the company needed money, he and Hively would jointly borrow the needed funds and sign 90-day notes. Hively later requested Holland to co-sign with him on personal guarantees of 90-day notes made by Holland Heating to the bank for working capital. Although Holland never refused Hively’s requests to co-sign the guarantees pursuant to the agreement, he failed to do so, leaving Hively as the sole personal guarantor on the notes. Hively personally guaranteed in excess of $400,000 of such notes on which a debt of approximately $150,000 remained unpaid. Holland was aware the loans had been made for working capital, and guaranteed by Hively, and testified he had no objection.

Having personally guaranteed the loans taken out by Holland Heating, Hively’s breach of contract action amounts to a claim that Holland breached an agreement to co-guarantee the notes, and that Hively is entitled to contribution from Holland for any sums paid by Hively in excess of his proportionate share of the debt. See OCGA §§ 10-7-1; 10-7-50; 10-7-56; 10-7-57. Although the written agreement, standing alone, lacks specificity, it was sufficient to establish a general agreement between Hively and Holland to jointly sign and bear responsibility for borrowing needed working capital. Where the contract is not so indefinite as to impart no meaning at all, parol evidence is admissible to explain ambiguities, and show the intent of the parties. Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439-440 (292 SE2d 84) (1982); McTerry v. Free For All Missionary Baptist Church No. 1, 129 Ga. App. 724, 725 (200 SE2d 915) (1973). “A contract which is originally and inherently too indefinite may later acquire precision and become enforceable by virtue of the subsequent acts, words, or conduct of the parties. Thus, the objection of indefiniteness may be obviated by performance and acceptance of performance.” (Citations and punctuation omitted.) Steinemann v. Vaughn & Co., Ltd., 169 Ga. App. 573, 576-577 (313 SE2d 701) (1984). “A contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties.” (Citations and punctuation omitted.) Advance Security v. Superior Surgical &c., 197 Ga. App. 769, 771 (399 SE2d 488) (1990). Other evidence showed that Holland was aware of the company’s need for capital; that he knew of the loans personally guaranteed by Hively, and had no objection to this being done, but failed to co-sign. In light of the parties’ subsequent actions, performance and acceptance of such performance, the evidence as a whole was sufficient to establish an enforceable contract for Holland to co-sign the personal guarantees undertaken by Hively.

Nevertheless, the evidence was not sufficient for the jury to determine that Hively was entitled to recover damages resulting from Holland’s refusal to co-sign the personal guarantees of the notes made by Holland Heating. Although Hively testified that his personal guarantee remained on $150,000 of unpaid debt, there was no evidence of the terms of the guarantee he signed, and the only evidence that Hively actually paid any portion of the debt based on his guarantee was testimony that he made one payment to the bank in the amount of $4,783.41. Generally, a guarantor or surety is primarily liable along with his principal to pay the debt. OCGA § 10-7-1. However, the true nature of the guarantor’s liability is established by the terms of the guaranty, which may render the guarantor only secondarily liable on the principal’s inability to pay, or otherwise condition or limit liability in any number of ways. See Breedlove v. Hurst, 181 Ga. App. 4, 6 (351 SE2d 212) (1986). Moreover, Hively would be entitled to contribution damages from Holland for breaching his contract to act as a co-guarantor only upon proof that Hively paid more than his proportionate share of the debt. See OCGA §§ 10-7-50; 10-7-53; EGL, Vol. 13A, Guaranty & Suretyship, § 56. Without evidence to establish these facts, the jury was without a sufficient basis to determine damages. Accordingly, the award of $18,000 for breach of the contract must be reversed.

2. On a separate claim in the same trial, Holland Heating sought to recover damages against Holland for breach of his fiduciary duties as vice-president of the company. The jury awarded damages to Holland Heating in the sum of $132,388 on this claim. Holland asserts in his third enumeration of error that the evidence was not sufficient to provide the jury with a reasonable basis to conclude that, assuming breach of fiduciary duty was shown, it caused the damages awarded.

In a claim alleging that a business was damaged because the defendant breached his fiduciary duty to the business, the jury must be given a reasonable basis upon which to calculate the amount of damage due to the breach. General Warranty Corp. &c. v. Cameron-Hogan, 182 Ga. App. 434, 437 (356 SE2d 83) (1987). In support of its claim, the company produced evidence that Holland failed to honor his agreement to sign with Hively on bank notes to borrow working capital for Holland Heating. However, whether Holland’s failure caused the company to be underfunded, and suffer damage as a result, is purely speculative on the present record. If anything, the record establishes that, despite Holland’s failure, the company was funded when necessary by personal loans from Hively. Holland Heating claims Holland failed to adequately train and supervise employees of the company responsible for entering bids for various construction jobs. As a result, the company alleges it underbid the jobs and lost money. The plaintiff’s general description of these duties, and the general allegation that they were inadequately performed, along with evidence comparing the bid amount with the total cost of the job to show the company’s loss, were not sufficient to give the jury a reasonable basis to conclude that the loss shown, or the amount of the damages awarded, resulted from the breached duty. With respect to other evidence that Holland had a drinking problem which affected his ability to perform his duties; that he participated in a dispossessory action filed against Holland Heating; that he caused company employees to leave by hiring them for another business, and that he caused Holland Heating to be rejected on an application for a business permit, there was either no evidence of damage, or no reasonable basis for the jury to calculate the amount of any damage resulting from the alleged breach.

While evidence of damage to the company was presented in association with some of the breaches of fiduciary duty, and mere difficulty in fixing the exact amount would not prevent recovery, “the rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” (Citations and punctuation omitted.) Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (415 SE2d 516) (1992). Since the evidence fails to provide a sufficient basis to allow a reasonable calculation of damage caused by the alleged breaches, the award of $132,388 must be reversed.

3. Lastly, Holland claims the trial court erred by dismissing his direct action as a shareholder of the company against Hively for breach of his fiduciary duties as an officer of the company. Generally, a shareholder who brings an action for breach of fiduciary duties against a corporate officer must do so in a derivative suit on behalf of the corporation. Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (397 SE2d 699) (1990). However, a shareholder may be allowed to bring a direct cause of action on such a claim, and seek recovery in his individual capacity, where he alleges a special injury suffered by him resulting from the breach of fiduciary duty. Id. at 585-586. “Thus, to have standing to sue individually, rather than derivatively on behalf of the corporation, the plaintiff must allege more than an injury resulting from a wrong to the corporation. . . . [T]o set out an individual action, the plaintiff must allege either an injury which is separate and distinct from that suffered by other shareholders, or a wrong involving a contractual right of a shareholder which exists independently of any right of the corporation. For a plaintiff to have standing to bring an individual action, he must be injured directly or independently of the corporation.” (Citations and punctuation omitted.) Id. at 586.

Whether a claim is derivative or direct is determined by reference to the allegations of the claim. Id. at 585. Since Holland did not allege he suffered injury in his individual capacity, he had no standing to bring an individual rather than a derivative claim. The trial court did not err by dismissing the claim. Moreover, the record does not contain the transcript of the pre-trial hearing at which Holland contends this issue was presented to and ruled upon by the trial court. Accordingly, Holland had failed to carry his burden to affirmatively show error in the record. Barnes v. Wall, 201 Ga. App. 228, 232 (411 SE2d 270) (1991).

Decided June 2, 1993

Kenneth W. Krontz, for appellants.

Maddox, Maddox & Maddox, Lynwood A. Maddox, Jr., Lindsay C. Roach, for appellees.

Judgment reversed in part and affirmed in part.

Pope, C. J., and Birdsong, P. J., concur.

       Although Holland Electric, Heating & Plumbing Company, Inc. was also a named appellant, none of the enumerations of error concern this party.

       The previous appeal of these parties was dismissed as premature in Holland v. Holland Heating &c., 203 Ga. App. 213 (416 SE2d 557) (1992).


text:
    A93A0279.
    LONG v. JONES et al.
    (432 SE2d 593)
   Andrews, Judge.

Long brought this action against Elton Jones, the sheriff of Troup County, and officers Hammond, Hethcox and Talley of the Troup County Sheriff’s Department, in their individual and official capacities, alleging the defendants violated his rights under the United States and Georgia Constitutions while he was a pre-trial detainee at the Troup County jail. As to the federal constitutional claims, the complaint states a cause of action pursuant to 42 USC § 1983 alleging the defendants, acting under color of state law, deprived Long of his rights under the Eighth, Fourteenth, Sixth and First Amendments by continuously restraining him with leg irons, waist chains, and handcuffs for a period of 22 days while he was being held in a cell at the jail. Long also alleged that these actions violated his right under Art. I, Sec. I, Par. XVII of the Georgia Constitution not to be abused while under arrest and detained for trial.

The defendants moved for partial summary judgment on all the constitutional claims on the sole ground that Long had been restrained in his cell for security reasons for only two to three days, and that such restraint did not amount to a deprivation of any constitutional rights. Long filed a motion for partial summary judgment on the same ground seeking a ruling that the restraints placed on him deprived him of his Eighth Amendment right not to be subjected to cruel and unusual punishment. The trial court denied Long’s motion, and granted the defendants’ motion finding no constitutional deprivation. In three enumerations on appeal, Long claims the trial court erred by granting the defendants’ motion and denying his motion because: (1) the restraints violated his due process rights under the Fourteenth Amendment; (2) the restraints violated his right not to be abused while under arrest as set forth in Art. I, Sec. I, Par. XVII of the Georgia Constitution; and (8) the restraints constituted a battery upon his person.

1. First, we address Long’s claims that the trial court erred by denying his motion for partial summary judgment. Long sought summary judgment solely on the basis that the restraints placed on him violated the Eighth Amendment prohibition against cruel and unusual punishment. Since Long was a pre-trial detainee, not a convicted inmate, his claims involve the due process clause rather than the Eighth Amendment. While due process prohibits punishment of a pre-trial detainee, a convicted inmate may be punished, but not in a cruel and unusual manner in violation of the Eighth Amendment. Bell v. Wolfish, 441 U. S. 520 (99 SC 1861, 60 LE2d 447, 466, n. 16) (1979). There was no error in the trial court’s denial of the motion brought on Eighth Amendment grounds. On appeal, Long asserts the trial court erred, not by denying his Eighth Amendment claim, but on various other grounds not asserted in the motion below. This court will not consider claims raised for the first time on appeal. Dupree v. State, 206 Ga. App. 4 (424 SE2d 316) (1992). Accordingly, we find no merit in Long’s claims that the trial court erred by denying his motion for partial summary judgment.

2. Long does not contest certain aspects of the trial court’s grant of partial summary judgment in favor of the defendants. Since Long does not assert error in the trial court’s order concerning his First, Sixth, and Eighth Amendment claims, the trial court’s grant of partial summary judgment in favor of the defendants is affirmed as to these constitutional claims. Additionally, Long claims no error in the trial court’s grant of partial summary judgment in favor of defendants Hammond, Hethcox, and Talley. Accordingly, the grant of partial summary judgment is affirmed as to these defendants.

3. As to the remaining enumerations, Long claims the trial court erroneously granted partial summary judgment in favor of Jones in his individual and official capacities as sheriff of Troup County, because the restraints placed upon him violated the due process clause of the Fourteenth Amendment, the prohibition against abuse while under arrest contained in Art. I, Sec. I, Par. XVII of the Georgia Constitution, and were a battery. We conclude the trial court erred in granting Jones’ partial summary judgment motion because questions of fact remain as to whether the restraints were imposed by Jones on Long as punishment in violation of his due process rights as a pretrial detainee. In reaching this conclusion, we need not independently address Long’s claims that the restraints were a battery and violated the Georgia Constitution. Long does not contend the restraints were a battery as the basis for an independent claim for damages, but alleges this in support of his constitutional claims. We also conclude that Art. I, Sec. I, Par. XVII of the Georgia Constitution, which states that no person shall be abused while under arrest, provides an independent state ground for this action, and provides at least as much protection to pre-trial detainees under the circumstances of this case as the Fourteenth Amendment due process clause. Since we conclude minimum federal constitutional standards dictate reversal of the summary judgment order, we need not consider whether Georgia’s constitutional prohibition against abuse may provide more protection to Long than federal due process standards. See Fleming v. Zant, 259 Ga. 687, 689-690 (386 SE2d 339) (1989).

It is uncontested that about a week after Long was incarcerated as a pre-trial detainee at the Troup County jail on rape charges, he escaped. He was recaptured a day later, and transferred to the Troup County Correctional Institute, where about a month later he escaped again. A week later he was recaptured and returned to the Correctional Institute. Three weeks later he escaped again. After two weeks he was recaptured in Iowa, and was charged with the additional crimes of kidnapping, assault, and rape committed during his third escape. After his third escape, Long was placed in an isolation cell at the Troup County jail.

Long contends that after being locked in the isolation cell, he was restrained inside the cell for twenty-two days with handcuffs connected to waist chains, and with leg irons comprised of cuffs on each ankle connecting his legs with about two inches of chain. In his affidavit, Long states: “These chains made it very difficult for me to eat and sleep and take care of myself in any normal way. They were kept on me for 24 hours a day.”

Sheriff Jones contends that after being placed in the isolation cell, Long began to remove a wire mesh covering the inside of the barred cell window, and told Jones that he intended to escape again. Jones also expressed concern that the isolation cell had a window in the steel door similar to one Long had used to previously escape from another cell. Jones claims that he restrained Long in handcuffs, waist chains and leg irons for two to three days as a security measure to prevent a fourth escape, not as punishment, and that based on a later discussion he had with Long he determined the security risk had passed and removed the restraints. According to Jones, the leg irons had a connecting chain of two-and-one-half to three feet, and the restraints allowed Long enough freedom of movement to eat, walk, use the rest room and maintain his personal hygiene. Long denied he told anyone he planned to escape, denied he tore wire mesh from the cell window, and claimed it would have been impossible for him to escape through the window in the steel door.

In Bell v. Wolfish, supra, the Supreme Court first considered the scope of constitutional protection accorded to pre-trial detainees in light of legitimate security concerns at detention facilities. The Court concluded that under the Due Process clause a pre-trial detainee may not be punished, and that the proper inquiry is whether the conditions of confinement complained of amount to punishment of the detainee. Id. at 60 LE2d 466. In applying this rule, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on ‘whether an alternative purpose to which (the restriction) may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned (to it). Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” (Citations and footnote omitted.) Id. at 60 LE2d 468.

In setting forth these guidelines, however, Bell cautioned that courts should have a limited role in the administration of detention facilities, and that in assessing whether a specific restraint is reasonably related to security interests, courts should “heed our warning that ‘(s)uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment. . . .’ Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape. . . . Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 60 LE2d 469-474; Block v. Rutherford, 468 U. S. 576 (104 SC 3227, 82 LE2d 438, 445-446) (1984).

Decided June 2, 1993.

Ralph S. Goldberg, Bensonetta T. Lane, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., for appellees.

Construing the evidence in favor of Long as respondent on summary judgment, and applying it in light of the above principles, we conclude a genuine issue of fact is presented as to whether Long’s due process right not to be punished as a pre-trial detainee was violated by the restraints placed upon him by Sheriff Jones. Without doubt, Long was a dangerous prisoner posing a severe security risk. Nevertheless, Long was secured in an isolation cell when the restraints were imposed. Differing accounts were given as to whether Long was damaging the cell in an attempt to escape, and what the actual risk may have been that he might escape for a fourth time if not restrained. In opposition to Sheriff Jones’ affidavit and deposition testimony, Long produced an affidavit from a corrections expert stating that, although restraints such as cuffs and chains are proper security devices, the manner and duration of the restraints imposed under the present circumstances was an exaggerated and unjustifiable response to the security risk. A question of fact is presented as to whether the restraints were punishment, rather than a reasonable response to legitimate security concerns. Accordingly, the trial court erred by granting partial summary judgment in favor of Sheriff Jones.

Judgment affirmed in part and reversed in part.

Pope, C. J., and Birdsong, P. J., concur.

       The sole issue presented on summary judgment was whether the actions taken deprived Long of a constitutional right. Whether the actions taken demonstrated an intentional policy or custom, or whether Sheriff Jones’ actions represented official policy, or whether qualified immunity applies, are not at issue. See Poss v. City of North Augusta &c., 205 Ga. App. 894, 895 (424 SE2d 73) (1992); Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 304 (357 SE2d 569) (1987); Jett v. Dallas Independent School Dist., 491 U. S. 701 (109 SC 2702, 105 LE2d 598, 627-628) (1989); Forney v. Purvis, 190 Ga. App. 192, 195-196 (378 SE2d 470) (1989). Long’s complaint also contained an allegation that his constitutional rights were violated when he was struck by defendant Talley. This claim was not addressed on summary judgment and is not at issue in this appeal.

       The question of immunity under the state law claim is not before us. See Strickland v. Wilson, 205 Ga. App. 91 (421 SE2d 94) (1992); Alford v. Osei-Kwasi, 203 Ga. App. 716, 723 (418 SE2d 79) (1992).


text:
    A93A0567.
    BETHA v. THE STATE.
    (432 SE2d 242)
   Andrews, Judge.

Betha was convicted of a violation of OCGA § 16-13-30 and appeals.

In his sole enumeration of error, Betha claims that the trial court erred in denying his motion for new trial under OCGA § 5-5-23.

Initially we must address the issue of jurisdiction. The verdict and sentence against Betha were filed on June 4, 1992. The notice of appeal was filed on June 24, 1992. The motion for new trial was filed on July 2, 1992. The trial court denied the motion in an order dated November 4, 1992.

Although the notice of appeal was filed prior to a ruling on the motion for new trial, jurisdiction is proper since the notice of appeal ripened. “Formerly, an appeal from a judgment on a verdict brought while the case was pending on motion for new trial was premature and of no validity. . . . This is no longer true . . . premature filing is not a ground of dismissal in criminal cases, at least insofar as a criminal defendant is concerned. . . .” Langston v. State, 202 Ga. App. 431, 432 (1) (414 SE2d 676) (1992), citing Shirley v. State, 188 Ga. App. 357 (1), 358 (373 SE2d 257) (1988). Thus, we turn now to Betha’s enumerated error.

Evidence at trial was that Betha was arrested on February 12, 1992 after selling crack cocaine to an undercover agent for $20. The undercover agent, Eugene Johnson, testified at trial. He stated that he bought the substance from Betha at about 4:30 p.m. on that same date after meeting Betha on Floyd Street near an abandoned pool room. Johnson testified that he, Betha, and a confidential informer got into Betha’s pickup truck and drove away from the area. Johnson testified that they rode to a parking lot, where the sale was consummated in the pickup truck.

Betha presented an alibi defense, in support of which he presented four witnesses, including himself. The first witness, Eddie Ray Latimore, testified that he and Betha were at Amanda Robinson’s house playing cards and visiting from 2:30 p.m. until about 6:00 p.m. on February 12, 1992. Willie Lee Davis testified and corroborated Latimore’s testimony. Defendant’s brother, William Betha, testified that he had sole possession of Betha’s pickup truck for the entire day of February 12. Finally, Betha testified that he was at Amanda Robinson’s house and that he did not drive his pickup truck on that date, but drove another vehicle. He stated that he stayed at her house from about 1:00 p.m. until about 6:00 p.m.

In rebuttal, the State called Officer Hall who testified that when he attempted to arrest Betha in March 1992, Betha fled.

The jury convicted Betha and he filed a motion for new trial pursuant to OCGA § 5-5-23 on the basis of alleged newly discovered evidence. The evidence consisted of the affidavit of Denise Swint in which she stated that on February 12, 1992 at approximately 4:30 p.m. she was in the vehicle with Eugene Johnson and another man, Melvin Hooks, at the pool hall area. She stated that neither man entered Betha’s vehicle on that date. At the hearing on the motion, Swint testified further that neither Johnson nor Hooks even talked to Betha on that date.

Decided June 2, 1993.

. Edwin A. Smith, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assis tant District Attorney, for appellee.

The trial court denied Betha’s motion, citing Humphrey v. State, 252 Ga. 525, 528 (3) (314 SE2d 436) (1984), which states: “[o]n motion for new trial based on newly discovered evidence, it is incumbent that the movant satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Failure to show one requirement is sufficient to deny a motion for new trial.”

Betha’s motion was properly denied. Betha claims that he was unaware that Ms. Swint observed him near the pool hall. This contention does not explain the reason for Swint’s delayed appearance in the case, and there is no showing of the due diligence required by Humphrey. See generally Jefferson v. State, 157 Ga. App. 324 (2) (277 SE2d 317) (1981).

Furthermore, Ms. Swint’s testimony contradicts not only Johnson’s testimony, but also Betha’s trial testimony. At trial, Betha claimed that he was not present at the pool hall area and that he did not have his pickup truck that day. The inconsistencies between the four defense witnesses who were called at trial and Swint’s testimony make it unlikely that a different verdict would have resulted from this evidence. All six requirements were not met, as required to secure a new trial. See generally Young v. State, 194 Ga. App. 335 (1) (390 SE2d 305) (1990); Westbrook v. State, 186 Ga. App. 493 (4) (368 SE2d 131) (1988).

We find no abuse of the trial court’s discretion in his failure to grant the motion. See Wilson v. State, 193 Ga. App. 374 (387 SE2d 642) (1989).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


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    A93A0652.
    WORLEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (432 SE2d 244)
   Andrews, Judge.

State Farm refused to pay medical expenses covered under two health insurance policies issued to Worley, claiming the policy applications contained material misrepresentations which voided the policies. Worley brought this action for breach of contract, and appeals from the grant of summary judgment in favor of State Farm.

Worley applied for the two policies at issue in August 1990. The applications required a yes or no answer to the following question: “Within the last 10 years have you or any named dependent had or been told you had, or been treated for . . . chest pain, high blood pressure, heart murmur, heart attack or other heart disorder?” The question was answered “no” on Worley’s applications.

Other evidence showed that in July 1988 Worley filed an insurance.application with Prudential Insurance Company, and Prudential responded with a letter requiring an increased premium “because of your heart murmur and abnormal electrocardiogram.” Worley admitted making the application, but stated he could not recall receiving the letter, and denied knowing he had a heart problem of any kind until he was diagnosed and treated for congestive heart failure and rheumatic valvular disease in 1991 when he made the present claim on the policies.

Deposition testimony from Worley and his physician further revealed that Worley underwent a physical examination in February 1989. He remembers discussing his history of rheumatic fever as a child, and being referred for tests, but testified he could not remember what kind of tests. Worley’s physician testified he and Worley discussed his history of heart murmur, and that his February 15, 1989 examination revealed Worley had a heart murmur related to valvular heart disease. Worley was referred for tests, including an echocardiogram, which also showed mild mitral stenosis and mild aortic calcification. In addition to discussing these matters with Worley, the physician sent a letter to Worley dated March 9, 1989 informing him: “As we discussed, essentially the only major finding was your valvular heart disease, apparently as a result of childhood rheumatic disease. The echocardiogram findings are consistent with mild stenosis of the mitral valve as well as mild regurgitation of the tricuspid valve.” Worley admitted receiving the letter, then variously testified that he talked with his physician about the letter; that he could not recall whether he discussed the letter with his physician, and that he had no discussions with his physician relating to a heart problem.

With respect to the State Farm applications, Worley admitted signing the applications, but testified they were prepared by an employee of the State Farm agent, and that he signed the prepared applications without reading them. He testified he was asked some questions as the applications were being prepared, but he could not remember any specific questions he answered. Worley further stated that he brought the March 9 letter from his physician to the State Farm agent’s office at the time the applications were made, although he could not recall whether the agent was given a copy or saw the letter. He testified first that he discussed the letter, and made the agent aware of all the information in the letter, then testified that he could not recall specifically what parts of the letter he discussed with the agent. Although claiming he gave the agent all the information in the physician’s letter, and was unaware of the answers filled in by the agent, Worley’s opinion was that the “no” response filled in by the State Farm agent on the application question regarding heart murmur or other heart disorders was correct, “because a heart murmur to me is nothing.”

In response to State Farm’s motion for summary judgment, Worley admitted that in February and March of 1989 he was diagnosed as having a heart murmur, as well as mitral stenosis and aortic calcification. In support of its motion for summary judgment, State Farm filed an affidavit stating that the heart murmur and mitral stenosis conditions which Worley had at the time of the application were material to Worley’s insurability, and that State Farm would not in good faith have accepted the risk and issued the policies if it had known of these medical problems.

Worley contends State Farm is estopped to deny liability on the insurance policies under the holding of Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (281 SE2d 583) (1981); see Stillson v. Prudential Ins. Co., 202 Ga. 79 (42 SE2d 121) (1947). Houk held that an “insurance company is considered estopped to deny liability on the insurance contract, where the insured has given correct answers to questions in the insurance policy application posed by the insurance agent and the insurance agent, either through fraud or negligence, has filled in the answer incorrectly.” Id. at 112. Apparently, Worley’s position is that he fully informed the State Farm agent of his heart conditions as diagnosed by his physician (though testifying he did not personally believe he suffered from any heart condition); that the agent filling in the application incorrectly marked “no” in response to the question regarding heart murmur or other heart disorders, and that he did not notice the error.

The deposition testimony upon which Worley relies to create an issue of fact as to this position is rife with evasive, equivocal and contradictory assertions. Although all evidence on summary judgment is normally construed in favor of the non-moving party, testimony by a non-moving party in his own behalf which is contradictory, vague or equivocal will be construed against such party, unless a reasonable explanation is offered to explain the contradiction. Prophecy Corp. v. Charles Rossignol Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law for the trial court. Id. at 30; Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). Worley testified he learned of his heart condition for the first time in 1991, after the State Farm policies were issued. He then testified that in 1989, prior to the State Farm applications, he learned of heart conditions diagnosed by his physician, and admitted receiving a letter describing the conditions. Describing the application process, Worley stated he brought the physician’s letter describing his heart conditions to the State Farm agent’s office, then stated he could not recall whether the agent was given a copy or even saw the letter. He followed this testimony by explaining that he made the agent fully aware of the contents of the letter, then testified that he could not recall what portions of the letter he discussed with the agent. In the absence of any reasonable explanation, application of the contradictory testimony rule requires elimination of the portions of this testimony favorable to Worley’s defense that he gave the agent correct answers to the. questions on the application regarding his heart condition, and the agent incorrectly filled in the response. Prophecy Corp., supra at 28. Considering the evidence as it stands after eliminating such testimony, we find no evidence that State Farm’s agent was correctly informed as to Worley’s heart condition, and then fraudulently or negligently inserted an incorrect response on the application. Thus Houk, supra, does not apply.

“Where the evidence shows that the insurer would not have issued the policy if it had been aware of the applicant’s . . . medical problems, the evidence demands a finding that the omissions or misrepresentations of the applicant were material to the acceptance of the risk. [Cit.] Because the evidence demands a finding that misrepresentations were made on the application of insurance which were material as a matter of law, recovery under the policy is precluded.” Bolin v. Massachusetts &c. Ins. Co., 203 Ga. App. 570, 572-573 (417 SE2d 325) (1992); Miller v. Nationwide Ins. Co., 202 Ga. App. 737, 738 (415 SE2d 700) (1992). In order to prevail on summary judgment, the insurer need only show that the representation was objectively false, regardless of the subjective belief of the insured, and that it was material to the extent it changed the nature, extent or character of the risk. Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 5 (413 SE2d 224) (1991); Lee v. Chrysler Life Ins. Co., 204 Ga. App. 550, 551 (419 SE2d 727) (1992); Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341, 342-343 (427 SE2d 833) (1993); OCGA § 33-24-7 (b). The trial court correctly granted summary judgment in favor of State Farm.

Decided June 2, 1993.

Philip M. Casto, for appellant.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Rodney S. Shockley, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


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    A93A1206.
    GARCIA v. THE STATE.
    (432 SE2d 122)
   McMurray, Presiding Judge.

Defendant Garcia appeals his conviction of possession of a firearm by a convicted felon. Held:

1. The indictment charged defendant with two counts of aggravated assault, one count of criminal damage to property, and two counts of possession of a firearm by a convicted felon. Defendant was convicted only on the two counts of possession of a firearm by a convicted felon and acquitted on the remaining charges. The two offenses of which defendant was convicted were determined to have merged under the facts established at trial and defendant was sentenced for only one offense.

Defendant contends that there was not sufficient evidence to authorize his conviction of possession of a firearm by a convicted felon. The State’s evidence was that defendant approached a former girl friend in the parking lot of her apartment, chased her back to the apartment she shared with a new boyfriend, and fired a gun at her and her new boyfriend. Defendant testified that he encountered his former girl friend and accompanied her back to the apartment where the new boyfriend threatened him with the gun and he merely wrestled the gun away from the boyfriend.

While it may be difficult to reconcile the conviction of defendant with the portions of the jury’s verdict acquitting defendant of the remaining charges, we note that the inconsistent verdict rule was abolished in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216). See also Allen v. State, 203 Ga. App. 359 (416 SE2d 869). The evidence at trial must be viewed in the light most favorable to upholding the verdict of the jury. Since there is ample evidence that defendant was a convicted felon and that he brought the handgun involved in this incident with him when he went to his former girl friend’s home, a rational trier of fact was authorized to conclude that defendant was guilty beyond a reasonable doubt of the offense of possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Dorsey v. State, 206 Ga. App. 709, 715 (7) (426 SE2d 224).

Decided June 2, 1993.

James Archie, for appellant.

J. Tom Morgan III, District Attorney, Gregory J. Giornelli, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

2. Defendant’s remaining enumeration of error contends the trial court erred in recharging the jury on possession of a firearm by a convicted felon. After a period of deliberation, the jury submitted a note to the trial court which read: “Please define for the Jury: 1) Transport of a firearm. 2) Possession of a firearm. 3) Transport and not be in possession.” In response to the jury’s inquiry, the trial court recharged the statutory definition of possession of a firearm by a convicted felon and asked if the recharge was sufficient to dispel the jury’s questions. The foreperson replied: “I think the question we were still trying to get an answer to related to transport, just what is transport, what does transport mean in possession?” After a sidebar conference with counsel, the trial court responded: “Now, members of the panel, transport just means to carry in the ordinary sense of the word, carry.” The jury then acknowledged that this was a sufficient response and that they had no further questions.

Defendant argues that the jury should have been charged more fully concerning the definition of possession and that the failure to do so amounted to interference with the jury’s deliberations. It is the trial court’s duty to recharge the jury on any point requested by the jury. Kimmel v. State, 261 Ga. 332, 334 (3) (404 SE2d 436). However, the trial court may confine its instruction to the scope of the jury’s inquiry. Defendant’s interpretation of the jury’s request as requiring a more extensive charge must fall in the face of the jury’s acknowledgment that their questions had been answered. Furthermore, there is no indication that the recharge left the jury with an erroneous impression of the law. The trial court did not abuse its discretion in limiting the recharge to the points requested by the jury. Walker v. State, 198 Ga. App. 422, 423 (2) (401 SE2d 613); Taylor v. State, 174 Ga. App. 900, 902 (6) (331 SE2d 920).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


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    A93A1353.
    WOODS v. THE STATE.
    (432 SE2d 249)
    Decided June 2, 1993.

      Jack F. Witcher, for appellant.

      George C. Turner, Jr., District Attorney, Donald N. Wilson, James E. Barker, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant Woods appeals his conviction of two counts of burglary, one count of criminal damage to property in the second degree, and one count of attempted burglary. Held:

At trial, the State presented evidence that each of the crimes with which defendant was charged had occurred during the early morning hours of November 21, 1991. The only evidence that defendant had any part in the commission of the crimes was presented through the testimony of a juvenile accomplice who was apprehended when police investigated a suspicious vehicle. The juvenile’s companion in the vehicle was neither apprehended nor identified.

“ ‘ “Although a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. (Cit.)” (Cit.)’ Sanchez v. State, 203 Ga. App. 61, 62 (1) (416 SE2d 139) (1992). ‘Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.’ (Punctuation and citations omitted.) Edwards v. State, 200 Ga. App. 580, 584 (4) (408 SE2d 802) (1991).” Tucker v. State, 205 Ga. App. 683, 684 (423 SE2d 422). In the case sub judice, there was no evidence, however slight, which could be viewed as corroborating the accomplice’s identification of defendant as his cohort in crime. Therefore, the trial court erred in denying defendant’s motion for directed verdict of acquittal. Hanson v. State, 193 Ga. App. 246, 247 (2b) (387 SE2d 441); Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880); McCauley v. State, 177 Ga. App. 426 (339 SE2d 399).

Judgment reversed.

Johnson and Blackburn, JJ., concur.


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    A93A1502.
    LYSFJORD v. THE STATE.
    (432 SE2d 247)
   McMurray, Presiding Judge.

Defendant Lysfjord appeals her conviction of the offenses of speeding, fleeing and attempting to elude a law enforcement officer, two counts of interference with government property, leaving the scene of an accident, aggravated assault, reckless driving, and possession of cocaine. Held:

1. Defendant contends that the evidence was not sufficient to authorize her conviction. The evidence viewed in a light most favorable to upholding the verdict of the jury shows that Trooper Giles using radar to check for speeders on an interstate highway got a reading on a gray BMW driven by defendant of 74 mph in a 55 mph zone. Trooper Giles activated his blue light and attempted to stop the BMW, but the defendant failed to pull over when the trooper used his siren, pulled alongside of the BMW in an attempt to wave her over, and pulled in front of her and slowed down. Defendant then pulled out and passed Trooper Giles, looking at him and shaking her finger at him as she passed beside him. At this point, Trooper Giles used his radio to call for assistance. Trooper Stewart responded by attempting a rolling roadblock in front of defendant, but she passed him by using the emergency lane. The chase continued at speeds in excess of 100 mph into Bartow County and repeated attempts to stop defendant with a rolling roadblock were made with the assistance of additional state troopers and Bartow County deputy sheriffs. In the course of the chase and the attempts to stop her, defendant repeatedly drove on the median and shoulder of the roadway in order to evade the rolling roadblocks, and rammed several law enforcement vehicles including those of Trooper Stewart and Deputy Benton. Finally, the officers succeeded in stopping defendant and placing her under arrest. Defendant’s vehicle was impounded and during the inventory search cocaine was found in a container on the front passenger’s seat and in a duffle bag in the trunk.

Defendant testified that she was traveling on the interstate highway when her vehicle was rammed by a police vehicle she had just passed. She stated that she was confused about what was going on and that after the police vehicle struck her car twice, she moved into the next lane and accelerated to a higher speed. After the police car continued ramming her, she decided not to stop even though the police car then had its blue light on. Defendant testified that from this point she was afraid to stop, and tried to get away to escape attempts by the police car to cause her to have a collision. She also denied that there was any cocaine in her car.

In such cases as this, the determination of credibility and resolution of conflicts in the evidence are for the jury. This court does not reweigh the evidence but only determines its legal sufficiency. Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520). Defendant’s argument that the State failed to carry its burden of proof as to the element of criminal intent is not well founded as such intent may be inferred by the jury from the conduct, demeanor, and all other circumstances connected with the acts for which defendant was convicted. Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757). After a careful review of the entire record, we find that the evidence is sufficient to authorize any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Blige v. State, 205 Ga. App. 133, 136 (7) (421 SE2d 547).

Decided June 2, 1993.

Culverhouse & Deems, T. Neal Brunt, for appellant.

T. Joseph Campbell, District Attorney, H. Gray Skelton, Jr., Assistant District Attorney, for appellee.

2. In the remaining enumeration of error, defendant contends that the trial court erred in applying OCGA § 15-12-160, as amended by Ga. L. 1992, p. 1981, so as to require defendant to select her trial jury from a panel of 30 rather than from a panel of 42 jurors. Where the panel put upon a defendant does not contain the requisite number of jurors, the sole remedy is a challenge to the array and no other method of complaint as to the deficiency is open to the defendant. Cauley v. State, 130 Ga. App. 278, 280 (a), 282 (203 SE2d 239). And, under OCGA § 15-12-162, a challenge to the jury array must be in writing. As no written challenge to the array was filed in the case sub judice, we may not consider this issue on appeal. Terrell v. State, 201 Ga. App. 628, 629 (2a) (411 SE2d 779).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.