text:
    A96A2383.
    CANDLER HOSPITAL, INC. v. CARTER et al.
    (480 SE2d 876)
   Johnson, Judge.

Mary Ann and Jerome Carter, on behalf of themselves and their daughter, Mary Catherine Carter, filed a medical malpractice action against Philip Flexon, M.D., Ear, Nose & Throat Associates of Savannah (“ENT Associates”), and Candler Hospital, Inc., for injuries Mary Catherine Carter allegedly received as a result of surgery performed by Dr. Flexon. Candler Hospital moved to dismiss the action filed against it, claiming that the experts’ affidavits filed with the complaint did not comply with the requirements of OCGA § 9-11-9.1 (a), in that they failed to set forth a specific act of negligence claimed to exist as to the hospital or the factual basis for the claim against the hospital. The trial court denied the motion, and we granted Candler Hospital’s application for interlocutory review.

We note at the outset that the appellees filed no responsive brief in this case. As a consequence, they are deemed to admit the statement of facts as set out by Candler Hospital. See Montford v. State, 164 Ga. App. 627, 628 (298 SE2d 319) (1982).

OCGA § 9-11-9.1 (a) provides that: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) “In accordance with the legislative purpose of reducing the number of frivolous malpractice suits, we construe OCGA § 9-11-9.1 as requiring a plaintiff in a malpractice suit to submit a valid affidavit by an expert . . . against each professional defendant named in the complaint, in which is set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant. . . and the factual basis for the claim against each defendant” (Emphasis supplied.) HCA Health Svcs. &c. v. Hampshire, 206 Ga. App. 108, 109-110 (1) (424 SE2d 293) (1992).

The affidavits in the instant case state that Dr. Flexon performed sinus surgery on Mary Catherine Carter, that a hole in her cribriform plate (located in the area of the surgery) “could only have been” created during surgery and should not have occurred “but for the negligence of Dr. Flexon,” and that Dr. Flexon “breached the standard of care generally employed by members of the medical profession” during the performance of the surgery. The only references to Candler Hospital in the affidavits are: (1) a conclusory statement that “Dr. Flexon, [ENT Associates], and Candler Hospital, Inc., . . . departed from good and accepted medical care through the creation of a hole in the cribriform plate”; and (2) a statement that the nature of the hospital’s negligence could not be determined at that time. The affidavits do not specify any negligent act or omission by the agents or employees of Candler Hospital. Nor do they specify any facts upon which the malpractice claim against Candler Hospital is based. In fact, the affidavits do not even state that Candler Hospital’s agents or employees were involved in the surgery. The affidavits do not meet the requirements of the statute with regard to any malpractice claims against Candler Hospital.

A malpractice plaintiff’s failure to comply with the requirements of OCGA § 9-11-9.1 subjects the complaint to dismissal for failure to state a claim. OCGA § 9-11-9.1 (e). This Court is not permitted to ignore the requirements of the statute. See Johnson v. Brueckner, 216 Ga. App. 52, 53 (1) (453 SE2d 76) (1995). We point out that “[t]o construe the statute in the manner proposed by the trial court would defeat the purpose of the statute by authorizing the naming of professionals as defendants in malpractice suits in which a plaintiff can set forth no one negligent act or omission attributable to that defendant, thus sanctioning the filing of frivolous malpractice suits against professional defendants who are only tangentially related to the legitimate malpractice claim brought against another defendant.” HCA Health Svcs. &c., supra at 110 (1). The trial court erred in finding that the affidavits were sufficient under OCGA § 9-11-9.1 as to Candler Hospital and in denying its motion to dismiss. See Edwards v. Vanstrom, 206 Ga. App. 21, 22 (1) (424 SE2d 326) (1992). Compare Crook v. Funk, 214 Ga. App. 213, 214 (1) (447 SE2d 60) (1994); Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992).

Decided January 30, 1997.

Brennan & Wasden, Wiley A. Wasden III, James V. Painter, for appellant.

Savage & Turner, Brent J. Savage, for appellees.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A2455.
    GRAY et al. v. SPRINGS.
    (481 SE2d 3)
   McMurray, Presiding Judge.

William Terry Springs filed a petition for legitimation of Lana M. Gray Darby’s (“the mother”) minor child, alleging “it would be in the best interest of his [child] that a pattern of regular visitation be established.” The mother denied the material allegations of this petition, asserted a claim for termination of Springs’ parental rights, and the mother’s husband, Gregory Scott Darby, filed a petition to adopt the minor child. After a hearing, the trial court entered an order granting Springs’ petition for legitimization, denying the mother’s claim for termination of Springs’ parental rights and denying Gregory Scott Darby’s adoption petition. The trial court reserved ruling on the issues of custody and visitation. The mother and Gregory Scott Darby filed this direct appeal. Held:

Springs has filed a motion to dismiss this appeal based on the mother’s and Gregory Scott Darby’s failure to obtain a certificate of immediate review from the trial court’s interlocutory order as required by OCGA § 5-6-34 (b).

“ ‘[A] party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, OCGA § 5-6-34 (b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein.’ Scruggs [v. Ga. Dept. of Human Resources, 261 Ga. 587, 589 (408 SE2d 103)].” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213). The trial court’s order in the case sub judice is interlocutory because it reserves ruling on the issues of custody and visitation. However, neither the mother nor Gregory Scott Darby obtained a certificate of immediate review from the trial court as required by OCGA § 5-6-34 (b). This appeal must therefore be dismissed as premature. See Bailey v. Bailey, 266 Ga. 832, 833, supra.

Decided January 30, 1997.

Robert J. Erb, for appellants.

Donaldson, Herndon, Bell & Metis, James C. Metis III, for appellee.

Appeal dismissed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A96A1783.
    LEWIS v. USELTON et al.
    (480 SE2d 856)
   Judge Harold R. Banke.

Peggy J. Uselton and Lloyd W. Uselton, Sr. (collectively “Uselton”) retained attorney James W. Lewis to pursue a personal injury action against DeKalb County (“County”). Peggy Uselton was injured in a collision with a County sanitation truck operated by Jerry Luke, when the truck turned suddenly into her vehicle’s path. Lewis, acting on his own accord and in violation of Uselton’s specific instructions, settled Uselton’s lawsuit with the County’s liability insurance carrier for $22,500. Uselton repudiated the settlement and discharged Lewis.

After Lewis filed suit against Uselton seeking $9,000 in unpaid attorney fees pursuant to a 40 percent contingency fee Agreement, Uselton counterclaimed for legal malpractice. We affirmed the trial court’s denial of Lewis’ motion for summary judgment on his claim for attorney fees. Lewis v. Uselton, 202 Ga. App. 875 (416 SE2d 94) (1992). We also determined that Lewis’ assertion of proprietary rights in Uselton’s claim was strictly forbidden by the Ethical Regulations of the State Bar Standard 31 and DR 5-103 (A) (2). Lewis, 202 Ga. App. at 881 (5).

Thereafter, a jury tried the case in trifurcated form. In the first part, the jury determined the issue of the County’s liability and the nature and extent of Peggy Uselton’s injuries. The jury returned a verdict for special and general damages of $51,899.58, later reduced by a $5,000 PIP set-off. In the second part, the trial court granted Uselton’s motion for directed verdict finding that Lewis committed legal malpractice. In the third phase, the jury awarded attorney fees and litigation expenses to Uselton but found in favor of Lewis on the issue of punitive damages. After awarding credit for all set-offs and reductions, the trial court entered judgment for $34,846.36. On appeal, Lewis enumerates 11 errors. Held:

1. The trial court did not err by denying a directed verdict to Lewis based on Usleton’s purported failure to prove the liability of the County under respondeat superior. Lewis claims that no probative evidence was offered that the County owned the truck or that it was being driven by Jerry Luke or that Luke was a County employee.

A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable deductions demands a particular verdict. OCGA § 9-11-50 (a); Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (448 SE2d 251) (1994). A directed verdict cannot be granted if there is any evidence to support a contrary verdict. Id. at 489 (1).

Here, the trial court properly denied Lewis’ motion because the evidence did not demand it and, in fact, supported a contrary result. Peggy Uselton testified that the vehicle with which she collided was a County sanitation vehicle driven by Jerry Luke. Exhibit 16, a City of Chamblee traffic citation issued to Luke for failing to yield, indicates that at the time of the collision, Luke was operating a government-owned, 1987 front-end loader. The unrefuted evidence offered by Uselton did not demand a directed verdict in favor of Lewis. Carden, 214 Ga. App. at 488-489.

2. The trial court properly denied Lewis’ motion for a directed verdict on the ground that Uselton failed to prove the County waived its sovereign immunity. By purchasing a motor vehicle liability insurance policy, the County waived its governmental immunity to the extent of the amount of insurance so purchased, and the County was foreclosed from asserting governmental immunity as a defense. OCGA § 33-24-51 (b).

In any event, any controversy regarding the existence and amount of the County’s insurance policy was resolved in Lewis v. Uselton, 202 Ga. App. at 881. These facts served as the foundation for this Court’s determination that Lewis breached his ethical duty to Uselton by settling the claim for less than the County’s $50,000 policy limit without his clients’ consent.

3. The trial court did not err in denying Lewis’ second motion for summary judgment as amended. The verdict and judgment rendered Lewis’ motion moot. Atlanta Car for Hire Assoc. v. Whited, 179 Ga. App. 893, 894 (1) (348 SE2d 102) (1986).

4. Lewis alleges that he was prejudiced by the failure of the trial court to issue a timely order in response to his motion for a pretrial order. Pretermitting whether the trial court failed to timely rule on Lewis’ motion, in order to obtain the reversal of the judgment herein, Lewis must prove both harm and error. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (6) (290 SE2d 328) (1982).

The trial court conducted a pretrial conference, devoted hours to resolving complex pretrial matters including more than two dozen motions, and then issued a twelve-page order. The only specific harm Lewis alleges is that he did not have enough time to retain an expert after the trial court ruled that Lewis could not act as an expert witness due to his suspension from the practice of law. This argument is purely speculative. Even assuming arguendo that the trial court somehow erred, Lewis has failed to prove the requisite harm. See id.

5. Lewis claims that the trial court erred in denying his motion in limine to exclude evidence that he would be required to pay any judgment obtained against the County by reason of the malpractice claim. A client may recover for legal malpractice only if the negligence of the attorney proximately caused damage to the client. Crowley v. Trust Co. Bank &c., 219 Ga. App. 531, 532 (466 SE2d 24) (1995). To establish damages, Uselton had the burden of proving that a judgment would have been obtained in her favor. Young v. Jones, 149 Ga. App. 819, 823 (2) (256 SE2d 58) (1979). To frame the issues for the jury, the trial court explained, “The first issue that you, the jury, must take up in any malpractice claim, legal malpractice claim, is to decide first what the underlying case, in other words, was worth. So what you would have to determine first is what would have been the decision in the underlying case.” This instruction did not prejudice Lewis, as the jury could have freely decided the underlying case was worth nothing. See id.

6. The trial court properly denied Lewis’ motions to admit evidence of collateral source payments of lost wages and medical expenses to Uselton. The collateral source rule barred the admission of such evidence. Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991). Although OCGA § 51-12-1 (b) which permitted collateral source evidence was in effect at the time of the accident, by the time of trial, the Supreme Court had determined that Code section was unconstitutional and void pursuant to Ga. Const., Art. I, Sec. I, Par. II. See id. at 46. Generally, an unconstitutional statute is wholly void and of no force and effect from the date it was enacted. Strickland v. Newton County, 244 Ga. 54, 55 (1) (258 SE2d 132) (1979).

7. Lewis contends that the trial court erred in admitting Luke’s guilty plea and also maintains the traffic ticket incorrectly cited OCGA § 40-6-71 instead of OCGA § 40-6-21. See Corley v. Harris, 171 Ga. App. 688, 689 (3) (320 SE2d 833) (1984). In a civil action for damages arising from a motor vehicular collision, a plea of guilty to a traffic violation is admissible as an admission against interest. Hunter v. Hardnett, 199 Ga. App. 443 (1) (405 SE2d 286) (1991). Luke’s guilty plea to “failing to yield, left turn” was admissible for that reason. See id. The inaccuracy in the Code section cited would go to the weight given to the exhibit not its admissibility. See Locklear v. Morgan, 129 Ga. App. 763, 767 (6) (201 SE2d 163) (1973).

8. Lewis claims that the trial court erred in admitting Uselton’s Exhibit 24, a group of documents evidencing medical bills, prescription and parking receipts. The admission of evidence is a matter resting largely within the sound discretion of the trial court, and appellate courts will not interfere absent an abuse of discretion. Brannen v. Prince, 204 Ga. App. 866, 870 (4) (421 SE2d 76) (1992).

Lewis objected to the exhibit contending that it included photocopies and not originals, some dates were missing on some documents, and some medical bills referred to the treatment or diagnosis of an unrelated condition. Pursuant to Lewis’ objections, the trial court authorized extensive redaction of the documents. Copies of medical bills are admissible under OCGA § 24-5-26. Summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties. Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (c) (430 SE2d 813) (1993). Having reviewed the evidence, we are unable to find an abuse of discretion.

9. The trial court did not err in directing a verdict on the issue of malpractice or in refusing to allow evidence in mitigation. As the court noted, its decision was based on “the evidence, testimony, argument, the entire record, and . . . the holdings in In Re Lewis, 266 Ga. 61 and Lewis v. Uselton, 202 Ga. App. 875.” The fact that Lewis’ own expert, Robert W. Raleigh, Esquire, testified on deposition that Lewis’ actions in handling Uselton’s case constituted legal malpractice supports the court’s determination. We are not able to conclude that the evidence supported a contrary result. Carden, 214 Ga. App. at 489 (1); OCGA § 9-11-50 (a).

Decided January 14, 1997

Reconsideration denied January 31, 1997

George R. Dean, for appellant.

Hughes & Gibson, Ralph E. Hughes, for appellees.

10. The trial court did not err in using a special verdict form which in the case caption deleted any reference to the County as defendant and correctly identified Lewis as the defendant in counterclaim. Lewis claims the judgment must be reversed because the body of the verdict form refers to “James W. Lewis as stand-in for DeKalb County, Georgia.” Submission of a special verdict form is a matter within the trial court’s discretion and absent an abuse of discretion, the court’s choice will not be overturned. News Publishing Co. v. DeBerry, 171 Ga. App. 787, 790 (3) (321 SE2d 112) (1984). Based on the record before us, we are not able to find an abuse of discretion.

11. Although the trial court did not err in entering judgment against Lewis for an amount exceeding $4,500, the maximum amount he contends the judgment could have been, it erred in calculating the final total. Where the alleged malpractice is loss of a claim, the former client’s recovery against the former attorney is limited by the amount that would have been recovered from the defendant. Ware v. Durham, 246 Ga. 84 (1) (268 SE2d 668) (1980). Thus, the maximum amount recoverable was the $50,000 insurance policy limit. See id. The jury’s verdict of $51,899.58 had to be reduced to $50,000 before set-offs were made. The correct amount of the judgment is $32,946.78, calculated as $50,000 less the $5,000 PIP set-off and less the $22,500 settlement with the County, plus $8,000 in attorney fees and plus $2,446.78 in litigation expenses.

Contrary to his assertion, Lewis was not entitled to a set-off of 40 percent for attorney fees. Where an attorney violates his client’s instructions, he forfeits all right to compensation. Lewis, 202 Ga. App. at 876.

Accordingly, the judgment is reversed only as to the net amount of the award. The 12 percent interest accruing from the date of the judgment must be calculated on $32,946.78 and not on $34,846.36.

Judgment reversed in part and remanded with direction.

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

       The Georgia Supreme Court suspended Lewis from the practice of law for 18 months based on his conduct in settling Uselton’s claims without authority to do so. In the Matter of James W. Lewis, 266 Ga. 61 (463 SE2d 862) (1995).

       The $57,346.36 total included $46,899.58 plus $2,446.78 in litigation expenses and $8,000 in attorney fees. The trial court reduced the total by the $22,500 Uselton received in settlement.

       “Appellees plainly instructed their attorney [Lewis] that they would settle for no less than $50,000[ the limit of the County’s liability policy]; thus, he [Lewis] had ‘full’ authority to enter a settlement for the amount of $50,000.” Lewis, 202 Ga. App. at 879 (2).

       Lewis had been suspended for three years from the practice of law for engaging in sexual relations with a client. In the Matter of James Woodrow Lewis, 262 Ga. 37 (415 SE2d 173) (1992).

       Uselton’s counsel apprised the court of a problem concerning the presentation of original invoices and documents. Counsel stated that Lewis retained the original file material after being fired by Uselton. Counsel noted that another judge ordered Lewis to permit photocopying of the original file but that custody of the originals remained with Lewis.


author: Beasley, Judge.

text:
    A96A2153.
    STOCKS v. THE STATE.
    (481 SE2d 230)
   Beasley, Judge.

Stocks appeals his convictions of two counts of aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of possession of a firearm by a convicted felon (OCGA § 16-11-131).

At Stocks’ February 18, 1994 arraignment, attorney Finster was appointed to represent him as he was indigent. On March 11, a bench warrant was issued for Stocks’ arrest because of his failure to answer the call of the case. He surrendered to law enforcement authorities in August.

When the case was called on August 25, Stocks stated he no longer wanted to be represented by Finster because counsel had indicated to him that he could not win the case and that the prosecuting attorney was going to “fry” him because of his past. Finster denied he had told Stocks he could not win the case, but he did state that he and Stocks had discussed the State’s notice of similar transactions (which included a prior murder conviction). Stocks informed the court that although he did not question Finster’s competence, he wanted a lawyer who would pursue his defense more vigorously, and he requested a two-day continuance in order to obtain another lawyer. The court denied the continuance, stating that Finster was qualified to represent Stocks, that he had put considerable time into the case, and that Stocks had had adequate time prior to trial to retain another attorney if he so desired. The court told Stocks the trial would begin the following morning, and that his basic choices were to be represented by Finster or to represent himself. Stocks was incarcerated during this period.

At the beginning of the proceedings the next day, Stocks stated he wanted to defend himself, that he was competent to do so, that no one could represent him better than he could, and that he had devised his trial strategy. After the court made Stocks aware of his right to counsel, of the dangers of proceeding without counsel, and of the charges against him and the possible sentences, it granted his request. Finster was instructed to remain at the defense table and act as Stocks’ advisor. The court stated that Finster was not to act as co-counsel but was to answer questions which Stocks might have on procedural matters.

Rose Page and Faye Morton were the victims of Stocks’ aggravated assaults. Rose is the mother of Stocks’ former wife Debra, and Faye is Debra’s sister. On the day in question, Rose, Debra, and Faye intended to take a walk, when Stocks appeared. In a bad mood, he approached Rose and told her he was tired of her meddling in his business. He said he was going to put a stop to it, pulled a handgun out of his pocket, pointed it at her chest, and threatened to kill her. When Faye went to call the police, Stocks confronted her, pointed the gun at her head, and said he did not give a damn about her either.

Police officer Stone went to the scene and found Stocks there. Having been advised that Stocks might be in possession of a weapon, Stone did a pat-down and found five live rounds of ammunition in his pants pocket. He immediately asked Stocks if he had a weapon, and he said he had shown one earlier because he wanted them to know he meant business. He also said he had unloaded the weapon and given it to a passerby. He was then arrested and placed in the patrol car while Stone and another officer searched the area for weapons, unsuccessfully.

1. Stocks contends that Finster was ineffective in the legal assistance he provided prior to trial. See Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982).

He complains of counsel’s failure to engage in plea bargaining with the prosecuting attorney. Counsel, however, testified that on two occasions he had asked Stocks if there was any reason to discuss a plea bargain with the prosecuting attorney, and each time Stocks had indicated to him that he did not want to plead guilty.

Stocks also complains of counsel’s failure to move to suppress his statement to Officer Stone, premised on the ground that Stocks’ statement to the officer arose out of a custodial interrogation and was therefore inadmissible because it was not preceded by Miranda warnings. Stocks made this statement prior to his arrest in response to the officer’s inquiry concerning whether he had a weapon and after the officer found live ammunition in Stocks’ pocket during a search for weapons. This is not the sort of “in-custody interrogation” forbidden by Miranda without warnings. Quinn v. State, 209 Ga. App. 480, 482 (2) (433 SE2d 592) (1993); compare Jefferson v. State, 217 Ga. App. 747, 750 (1) (a) (459 SE2d 173) (1995); D’Anna v. State, 201 Ga. App. 731, 732 (1) (412 SE2d 857) (1991). Such a statement was thus not subject to discovery under former OCGA § 17-7-210. Jordan v. State, 166 Ga. App. 417, 419 (2) (304 SE2d 522) (1983).

Stocks has not carried his burden of showing that counsel’s pretrial representation was deficient. See Jefferson v. State, supra at 749 (1); Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74) (1994).

2. The court did not abuse its discretion in denying Stocks’ request for a two-day continuance in order to retain private counsel. OCGA §§ 17-8-20; 17-8-22; Patterson v. State, 202 Ga. App. 440, 441 (1) (414 SE2d 895) (1992); Hose v. State, 161 Ga. App. 401 (288 SE2d 675) (1982).

The court was authorized to find that Stocks had an adequate opportunity to secure private counsel prior to trial and was represented by a competent appointed attorney when the case was called. Compare Hasty v. State, 210 Ga. App. 722, 723 (1) (437 SE2d 638) (1993). “[A] criminal defendant will not be permitted to use the discharge of counsel and employment or appointment of another as a dilatory tactic in postponing or avoiding trial of the issue. [Cit.]” Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984).

Decided January 17, 1997

Reconsideration denied January 31, 1997.

Cook & Connelly, Todd M. Johnson, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

3. The record reflects that Stocks, no stranger in the courtroom, validly waived his right to counsel and elected to represent himself with counsel acting as his advisor. See Callahan v. State, 175 Ga. App. 303 (333 SE2d 179) (1985); Hose, supra; compare Butler v. State, 198 Ga. App. 217, 220-221 (1) (b) (401 SE2d 43) (1990).

4. The court did not err in failing to conduct, sua sponte, a Jackson v. Denno hearing to determine the admissibility of Stocks’ statement to Officer Stone. See Hudson v. State, 250 Ga. 479, 485 (6) (299 SE2d 531) (1983). There is no merit in Stocks’ argument that this statement was inadmissible because he was not given Miranda warnings. See Division 1.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A96A1883, A96A1885.
    BEDESKI v. ATLANTA COLISEUM, INC. et al.; and vice versa. VARNELL ENTERPRISES v. BEDESKI.
    A96A1884.
    (480 SE2d 881)
   Birdsong, Presiding Judge.

Plaintiff Kathy Bedeski sued Atlanta Coliseum d/b/a The Omni and Varnell Enterprises, alleging she sustained certain personal injuries when she tripped on a defective floor panel in the Omni auditorium at a concert. The jury gave verdict for the defendants. On appeal, appellant contends the trial court erred in several of its charges to the jury. Held:

1. At the charge conference the trial court advised appellant’s counsel that it would charge according to the Pattern Jury Charges and would not give certain charges requested by appellant, and that appellant could except to the charges after they were given.

After the jury charge was given, the trial court asked for exceptions. Appellant’s counsel stated: “If it please the court, Your Honor, for this purpose, if I may, nos. 5 through 13 inclusive.” He made no other exception and did not indicate the precise nature of his complaints about those charges, and did not even specify that he was referring to plaintiff’s requested charges. As to these and other charges appellant contends were erroneously given or not given, appellant made no exception as required by OCGA § 5-5-24 (a): “[I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”

To be reviewable on appeal, an objection to the jury charge must be unmistakable in directing the attention of the trial court to the claimed error and 'must point out distinctly the portion of the charge challenged; the grounds of error must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to the specific ground of challenge, and must fully apprise the court of the error committed and the correction needed. Lissmore v. Kincade, 188 Ga. App. 548, 551 (373 SE2d 819). Such specificity is required to ensure that the trial judge is afforded an opportunity to correct any error in the instructions prior to verdict so that the necessity of an appeal will be obviated. Hilliard v. Canton Wholesale Co., 151 Ga. App. 184 (259 SE2d 182). The grounds must be stated distinctly enough for a reasonable judge to understand its nature, enabling him to rule intelligently on the specific point. Green v. Dillard, 176 Ga. App. 574 (337 SE2d 55), overruled in Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 856 (360 SE2d 415). As in Green, appellant’s counsel merely named several numbers of charges, meaning presumably his own requests to charge, and failed to provide any grounds for objection, nor did he apprise the court of necessary corrections.

2. Assuming arguendo that proper objections had been made, we have reviewed the trial court’s charge and we find no harmful error. Plaintiff’s requested charge nos. 5 through 13, where applicable, were in substance given by the trial court in its charge, included in the Pattern Jury Charges. A jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states relevant principles of law, is that these principles be fairly given to the jury in the general charge. When the charge conveys correctly the intent of the law and is so framed as to be applied with understanding by the jury to the facts, denial of a request for a specific charge is not reversible error. Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 116 (460 SE2d 800).

3. In particular we noté that the trial court did not commit harmful error in refusing to charge plaintiff’s request no. 5: “that circumstantial as well as direct evidence may be used to prove negligence.” See Bishop v. KFC Nat. Mgmt. Co., 222 Ga. App. 1 (473 SE2d 218); Cox v. Farmers Bank, 159 Ga. App. 148 (282 SE2d 762). The essence of this requested charge was included in the Pattern Jury Charge as to the definitions of and distinctions between direct and circumstantial evidence; this language included the concept that “the comparative weight of circumstantial and direct evidence on any given issue is a question of fact for you, the jury, to decide.” In the absence of a specific exception to the contrary, we will not hold that this charge did not substantially inform the jury that circumstantial evidence could be used to prove the primary issue in the case, viz., negligence.

Decided January 31, 1997

David S. Walker, Jr., for Bedeski.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for Atlanta Coliseum, Inc.

hockey & Smith, G. Melton Mobley, Kevin A. Doyle, for Varnell Enterprises.

4. Having found appellant’s enumerations of error to be without merit, we uphold the verdict and judgment of the jury and trial court, and it therefore becomes unnecessary to determine the appellees’ cross-appeals.

Judgments affirmed.

Beasley and Blackburn, JJ, concur.


author: Blackburn, Judge. Eldridge, Judge,

text:
    A96A2080.
    OLYMPIA SERVICES, INC. v. SHERWIN WILLIAMS COMPANY.
    (480 SE2d 883)
   Blackburn, Judge.

Rhonda Williams filed a complaint against Olympia Services, Inc., alleging that she fell and injured herself while skating at its skating rink. Olympia answered the suit and filed a third-party complaint against Sherwin Williams in which it claimed Sherwin Williams was liable to Olympia for any damages owed Rhonda Williams. The trial court granted summary judgment to Sherwin Williams on Olympia’s third-party claims, and Olympia appeals.

On October 29, 1992, Olympia purchased a polyurethane coating from Sherwin Williams to repair approximately 50 small chips or dings in Olympia’s skating rink floor. Olympia asked employees of Sherwin Williams if there would be a problem with adding additional hardener to the solution to ensure the floor would dry in time for planned weekend activities at the skating rink. Sherwin Williams’ employees stated that adding extra hardener might cause the solution to harden before it could be applied but, otherwise, it would not be detrimental to the floor. Relying on the advice of Sherwin Williams’ employees, Olympia applied the solution to the small damaged areas of the skating rink floor. The next morning, an Olympia employee noted the repaired areas had not dried and were “gooey” to the touch. The solution had melted the polyurethane coating of the skating floor in spots where it was applied, revealing the asphalt subfloor.

Representatives from Sherwin Williams assisted employees of Olympia in removing the solution from the skating rink floor. The holes left in the floor after the solution was removed ranged in size, including some as large as a 50-cent piece; the holes had to dry before they could be patched. The employees of Sherwin Williams did not return to assist in the patching of the floor, which Olympia’s employees did as rapidly as possible.

Even though all of the holes in the skating rink floor had not been patched, Olympia elected to open for business on Friday, October 30, 1992, and remained open for its normal operating hours throughout the weekend and the following week while it patched the floor. During the repair period, Olympia took precautions to advise and warn its customers of the condition of the floor. Warnings were posted on the glass entry doors and at various locations throughout the skating rink. Each customer who entered the premises was told by employees that the floor needed repairs and was given the option to skate or not. Traffic cones (pylons) were put over the bad spots within the skating area. Floor guards monitored the floor, and the lights were not turned down. By November 4, 1992, approximately ninety percent of the holes had been repaired and only five or six remained unrepaired.

On November 4, 1992, the day Rhonda Williams fell while skating at the rink of Olympia, she observed holes in the surface of the skating rink floor and gravel on the surface of the floor.

1. Olympia claims the trial court erred in granting summary judgment to Sherwin Williams because its ruling finds Olympia negligent as a matter of law. Although a jury question exists as to whether Olympia acted negligently toward Ms. Williams, that question is not before us. The undisputed facts surrounding this third-party action show that Sherwin Williams is entitled to summary judgment as a matter of law because no act or omission of Sherwin Williams could reasonably be considered the legal, proximate cause of Ms. Williams’ injuries.

Olympia’s third-party action against Sherwin Williams claims only that if Olympia is liable to the plaintiff, Sherwin Williams is liable to Olympia. A third-party complaint does not serve as a tender of another defendant who may be liable to the plaintiff. Kirsch v. Jones, 219 Ga. App. 50, 52 (2) (464 SE2d 4) (1995). The question is whether, assuming Olympia acted negligently and is liable to the plaintiff, it may recover in contribution or indemnity from Sherwin Williams.

To prevail on a motion for summary judgment, Sherwin Williams does not need to disprove the plaintiff’s case but must show, by the record, that insufficient evidence exists to support at least one element of Olympia’s third-party claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Where the evidence is plain, the question of whether an act constitutes the intervening and superseding cause of an injury is a question of law. Finney v. Machiz, 218 Ga. App. 771, 772 (463 SE2d 60) (1995).

Here, the evidence shows without question that Olympia knew about the rough and pitted nature of the floor but, despite its knowledge, allowed Ms. Williams to skate. If we assume Sherwin Williams negligently damaged the skating surface and Olympia negligently allowed Ms. Williams to skate on it, the language of Mann v. Hart County Elec. Membership Corp., 180 Ga. App. 340, 341 (349 SE2d 215) (1986) applies to this case. “Where the second actor, after having become aware of the existence of a potential danger created by the negligence of the first actor, acts negligently in respect of the dangerous situation and thereby brings about an accident with injurious consequences to others, the first actor is relieved of liability, because the condition created by him was merely a circumstance and not the proximate cause of the accident. [Cit.]” (Punctuation omitted.) Id. In Mann, the defendant electric company’s powerlines over a lake were not properly marked to warn passing boaters. The plaintiff was a passenger on his brother’s sailboat. Although the brother knew about the risk of steering his sailboat under the powerlines, he did so anyway. The boat’s mast struck the electrified lines, killing the brother and injuring the plaintiff. We found the brother’s negligence superseded the electric company’s negligence and proximately caused the plaintiff’s injuries. Id.

This case centers on whether Ms. Williams’ injuries can be causally connected to Sherwin Williams’ negligence, if any. Whether Olympia discharged its duty to keep the premises reasonably safe for its invitee and in knowingly allowing its customers into the premises with the damaged floor, is a jury question. Sherwin Williams has no liability for the plaintiff’s injury, even if the jury finds Olympia liable, because any negligence of Sherwin Williams was not the proximate cause of the plaintiff’s injuries. See Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176-177 (1) (342 SE2d 497) (1986) (defendant’s actions did nothing more than “furnish the condition”); see also Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 722 (1) (470 SE2d 283) (1996). Like the boat captain in Mann, Olympia made a determination to expose its invitee to this hazardous condition. Nothing in the record shows Sherwin Williams had any power to prevent Olympia from opening its skating center. See Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987). Olympia’s act of allowing Ms. Williams to skate on this surface before it was repaired cannot be considered a “normal,” and therefore foreseeable, reaction to any error of Sherwin Williams. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 808 (1) (415 SE2d 705) (1992). As in Meiners v. Fortson & White, 210 Ga. App. 612, 613 (1) (436 SE2d 780) (1993), Sherwin Williams could not reasonably foresee that Olympia would expose Ms. Williams to the known dangerous condition by allowing Ms. Williams to skate before correcting said condition.

Because the language of the trial court’s opinion appears to foreclose the liability of Olympia to Rhonda Williams as a matter of law, we reject its opinion but affirm the judgment.

2. Because the conclusion that Olympia’s acts superseded any negligent acts of Sherwin Williams is dispositive, the trial court properly granted summary judgment on Olympia’s claims for contribution and indemnity. Had Olympia chosen to close its business because of Sherwin Williams’ assumed negligence, then it would have had a claim for losses resulting therefrom against Sherwin Williams. However, Olympia did not so choose. Olympia now seeks to hold Sherwin Williams liable for damages resulting from its own independent conduct. If the premises were not dangerous, then Sherwin Williams could not be liable in any event. If they were dangerous, then it was Olympia’s conscious decision to permit the customers to skate on the defective floor which resulted in injuries to such customers. For these reasons, the trial court properly granted summary judgment to Sherwin Williams, and Olympia’s enumerations of error are without merit.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.

Eldridge, Judge,

dissenting.

1. Under the fact pattern of this case and the evidence presented before the trial court, Olympia cannot be found negligent as a matter of law. Whether the defendant, third-party plaintiff, Olympia was negligent in opening its doors for business before repairs were completed is a question of material fact that can only be decided by a reasonable and impartial jury and cannot be determined by the court as a matter of law on summary judgment to be the sole proximate cause of the injury to the plaintiff, since a material issue of fact exists.

OCGA § 51-12-32 codified common law contribution, and statutorily broadened contribution to include joint trespassers or joint tortfeasors. See Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 803 (2) (165 SE2d 587) (1968). Common law contribution was based upon the difference in culpability found between joint tortfeasors when one had been passively negligent, and the other had been actively negligent; it allowed the passively negligent joint tortfeasor to obtain contribution from the actively negligent tortfeasor when both had been sued, and the passive tortfeasor had satisfied the judgment. The Supreme Court, in Standard Oil Co. v. Mt. Bethel United Methodist Church, 230 Ga. 341, 344 (6) (196 SE2d 869) (1973), held: “[w]here one of two or more joint tortfeasors has been sued for and compelled to satisfy damages arising from a jointly tortious transaction, he cannot, as a general rule, maintain an action either for contribution or indemnity over against those connected with him in the tort; but if the liability of the tortfeasor in the original suit arises merely from negative actions of omission on his part, such as a failure in his duty to inspect, and the proximate cause of the injury, so far as the joint tortfeasors are concerned, lay in active, positive acts of negligence on the part of the other tortfeasor, in which the original defendant did not in any way participate, then an exception to the general rule would exist. Central of Ga. R. Co. v. Macon R. &c. Co., 140 Ga. 309 (78 SE 931) [(1913)].”

In Peacock Constr. Co. v. Montgomery Elevator Co., 121 Ga. App. 711, 713 (175 SE2d 116) (1970), this Court held that where the liability of the tortfeasor “compelled to pay damages is passive, consisting only of negative acts or omissions, e.g., in failing in his duty to inspect or discover a defective condition, and where the proximate cause of the injury, with respect to another tortfeasor, is active, consisting of positive acts of negligence,” the passive tortfeasor has a right of contribution. Approved Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251) (1980); followed Jova/Daniels/Busby, Inc. v. B & W Mechanical &c., 167 Ga. App. 551, 553 (307 SE2d 97) (1983). As to foreseeability creating concurrent proximate cause, this Court in Peacock Constr. Co. v. Montgomery Elevator Co., supra, relied on Central of Ga. R. Co. v. Macon R. &c. Co., supra; Colt Indus. Operating Corp. v. Coleman, supra, and Jova/Daniels/Busby, Inc. v. B & W Mechanical &c., supra, relied upon Peacock Constr. Co. v. Montgomery Elevator Co., supra.

In Charles Seago &c. Co. v. Mobile Homes &c., 128 Ga. App. 261 (196 SE2d 346) (1973), this Court held that, in third party actions where the seller-defendant brought a third party action against the manufacturer for contribution when a mobile home was defective, the trial court erred in granting summary judgment on the basis of intervening proximate cause where the seller-defendant failed to inspect and to repair. “Unless we can say as a matter of law that the manufacturer was not guilty of any negligence, the inspection failure will not serve as an independent superseding cause of injury relieving it of liability.” Id. at 265; see Williams v. Grier, 196 Ga. 327 (26 SE2d 698) (1943).

In the case sub judice, Olympia was passively negligent in its failure to protect patrons by keeping the premises safe; such passive negligence was its failure to repair the damaged areas, close the premises, and warn or adequately warn its customers. In contrast, the negligence of Sherwin Williams was active in that it furnished chemicals which, when applied as it instructed, caused the dangerous condition. When plaintiff was injured, Olympia had substantially completed the repairs and had only ten percent of the work uncompleted, which would be five or six spots unrepaired. Olympia attempted to warn and to post cones where the work had not been completed, believing that it had exercised ordinary care.

This Court must now determine whether Olympia’s act of opening its doors for business before all repairs were complete was an independent, intervening act which was not triggered by Sherwin Williams’ acts, was not foreseeable by Sherwin Williams, and was sufficient by itself to cause the injury. Jones v. Central of Ga. R. Co., 192 Ga. App. 806 (386 SE2d 386) (1989). The Supreme Court, in Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395) (1902), created the exception to the doctrine of intervening proximate cause, holding that “[w]hile the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.” This case has been followed in a long line of decisions of this Court and is frequently cited. Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876 (3), 880 (298 SE2d 600) (1982). Williams v. Grier, supra, also based its holding upon Southern R. Co. v. Webb, supra, and has also been frequently cited and followed for the same proposition. See Storer Communications v. Burns, 195 Ga. App. 230, 231-232 (393 SE2d 92) (1990).

Under the evidence before the trial court, Sherwin Williams knew at the time Olympia purchased the solution that Olympia was seeking a product which would dry quickly so that Olympia could reopen for business within approximately 24 hours. Sherwin Williams’ employees, even though they initially assisted Olympiá in removing the “gooey” substance from the skating rink floor, did not continue to assist in the repair work on subsequent days in order to facilitate the repair work. Since Sherwin Williams had been told by Olympia of its need to reopen quickly, then Sherwin Williams knew and could reasonably foresee that Olympia would immediately reopen prior to completing all repairs, or with inadequate repairs; any acts or omissions of Olympia did not break the causal chain as an intervening act but merely became a concurrent proximate cause. Even without such evidence, it is reasonably foreseeable that any small business would not be able to close its doors for repairs for an extended length of time due to economics.

Therefore, the issues of proximate cause and foreseeability of an intervening act of negligence are not plain and undisputed and the trial court cannot make such determination as a matter of law, as was done in Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 722 (1) (470 SE2d 283) (1996); Meiners v. Fortson & White, 210 Ga. App. 612 (436 SE2d 780) (1993); Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805 (415 SE2d 705) (1992); Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987); Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176-177 (1) (342 SE2d 497) (1986) where there was no material issue as to foreseeability of the negligence of another.

In Meiners v. Fortson & White, supra, notwithstanding an express warning by the first counsel that service of the complaint had not been perfected, the second counsel failed to take any action to attempt to perfect service on the tortfeasor. This Court found that, in a professional malpractice case, such negligence on the part of the second counsel was not reasonably foreseeable when such counsel had been expressly warned of the lack of service. Further, this Court in Black v. Ga. Southern &c. R. Co., supra, at 807, held that “[t]he concept of proximate cause acts as ‘a limitation on what would otherwise be the unlimited liability of a negligent tortfeasor for all the immediate and the eventual consequences of his negligence.’ [Cit.] Applying this concept to limit recovery necessarily involves a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability. [Cit.] While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. [Cit.]” While Southern R. Co. v. Webb, supra, and Williams v. Grier, supra, still control, the General Assembly, in enacting OCGA § 51-12-32, made such a policy decision by allowing contribution from the active tortfeasor to the passive tortfeasor.

However, in the case sub judice, the issues of proximate cause and foreseeability are not plain and undisputed, but are questions of material fact that must be decided by a jury. In Banks v. ICI Americas, 264 Ga. 732, 733-734 (450 SE2d 671) (1994), the Supreme Court of Georgia held that Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985), which was a companion case to Mann v. Hart County Elec. Membership Corp., 180 Ga. App. 340, 341 (349 SE2d 215) (1986), would no longer be followed in defective design cases. Implicit in Mann v. Coast Catamaran Corp., supra, was the issue of proximate cause as is true in all design cases. See Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 845-846 (321 SE2d 353) (1984).

The majority fails to recognize that this is not only a product liability claim in negligence but also a third party action for tort contribution which deals differently with proximate cause. Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540 (339 SE2d 755) (1986); Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559 (272 SE2d 251) (1980); Gen. Motors Corp. v. Davis, 141 Ga. App. 495 (233 SE2d 825) (1977); Ford Motor Co. v. Lee, 237 Ga. 554 (229 SE2d 379) (1976). In both product liability and actions for contribution between joint tortfeasors, the appellate courts have until now been slow to find proximate cause as a mater of law, because there exists several competing legal policies which cannot be easily reconciled by judicial intervention, i.e., putting a defective product in the stream of commerce; sharing of financial burden by active tortfeasors with the passive tortfeasor as a legal and equitable principal; joint and several liability; duty to foresee product abuse or misuse; general duty to avoid harm to others either from active negligence or failure to warn.

2. Appellant’s second enumeration of error alleges that “even if Olympia’s conduct in opening its doors was negligent, the trial court erred in determining, as a matter of law, Olympia’s conduct was the sole cause of plaintiff’s injury.”

In the case sub judice, the third-party defendant, Sherwin Williams, moved for and was granted summary judgment. A third-party complaint is not based on direct liability from the third-party defendant to the original plaintiff, but must be predicated on secondary liability to the original defendant. Brabham v. Brown, 147 Ga. App. 766 (250 SE2d 495) (1978); Wolski v. Hayes, 144 Ga. App. 180 (240 SE2d 720) (1977). Here, the third-party plaintiff had set forth its claims under the theories of indemnification and of contribution, which is a statutory cause of action under OCGA § 51-12-32; both of which are valid theories of third-party liability. Nat. Life Assurance Co. v. Massey-Ferguson Credit Corp., 136 Ga. App. 311 (220 SE2d 793) (1975); McMichael v. Ga. Power Co., 133 Ga. App. 593 (211 SE2d 632) (1974).

Pretermitting contribution as a theory for the third-party action, the trial court erred in granting summary judgment to Sherwin Williams, because the third-party defendant could still be liable under the theory of indemnity. Sherwin Williams failed to pierce the pleadings with competent evidence as to the absence of material issues of fact on an essential element for this theory of liability.

Decided January 31, 1997.

Almand & Ruffin, O. Hale Almand, Jr., Coppedge, Leman & Ward, David L. McGuffey, for appellant.

Cole & Cox, Charles E. Cox, Jr., Anderson, Walker & Reichert, Brown W. Dennis, Jr., Clinton A. Wheeler, for appellee.

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

       In Black v. Ga. Southern &c. R. Co., supra, the movant had been arguably passively negligent through failing to repair a railroad crossing signal, which plaintiff had negotiated without mishap and which had nothing to do with plaintiffs subsequent collision at the adjoining intersection.


text:
    A96A1712.
    CARTER v. THE STATE. SCOTT v. THE STATE.
    A96A1713.
    (481 SE2d 238)
   Beasley, Judge.

Carter and Scott challenge their jury conviction for robbery, and the denial of their motion for directed verdict of acquittal. They were each found guilty of robbery by force against Dawson, a woman in her mid-eighties. OCGA § 16-8-40 (a) (1). Scott was also found guilty of robbery by sudden snatching from the woman. OCGA § 16-8-40 (a) (3).

The evidence is viewed on appeal in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; the appellate court does not weigh evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976); Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

So viewed, the evidence is that Dawson and her husband Coleman were at a shopping plaza. As they walked near columns in front of a drug store, Coleman saw three young males, one of whom ran through the crowd while another ran past Coleman. One grabbed Mrs. Dawson’s purse, pulling her to the ground and breaking her arm. The trio then ran away.

Stephenson was in his van in the parking lot. He saw four young men walk from the parking lot to a nearby car wash and return. They walked over and each stood beside separate columns in front of the drug store for several minutes while looking at each other. Stephenson testified that as the Dawsons approached the columns, one of the young men ran out from behind and hit the woman while another snatched her purse. Stephenson described the other two young men as “flankers.” The foursome then ran in front of Stephenson’s van, laughing and joking.

Stephenson jumped out of his van and tried to stop the men. Unable to do so, he returned to his van and drove off in an attempt to locate them. As he turned onto the highway, he identified one of them in a white Toyota Corolla. He followed and pulled alongside at a traffic light. When he saw one of the men in the car look up at him and reach underneath his seat, Stephenson retrieved his own handgun and told them to pull over. The driver did not comply.

Stephenson called the police on his cellular phone and gave them his location. He chased the Toyota for ten or fifteen minutes. Officer Moore received the call, and when the white Toyota and Stephenson’s van approached, he joined the chase and saw Mrs. Dawson’s purse thrown from the window of the Toyota. The Toyota finally stopped and Moore arrested all six occupants, four males and two females. On the floorboard was a wallet containing Mrs. Dawson’s credit cards, social security card, and driver’s license.

At trial Stephenson identified Carter and Scott as two of the men standing beside the columns in front of the drug store. He further identified Scott as the person who struck Mrs. Dawson and Carter as one of the men who ran from the scene and drove the Toyota.

1. In two enumerations, Carter and Scott claim error in the court’s giving of a certain recharge.

OCGA § 16-2-20 provides, “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.... A person is concerned in the commission of a crime only if he ... [intentionally aids or abets in the commission of the crime.”

In the course of deliberations, the jury submitted the following question: “Can aiding and abetting occur after the criminal act has taken place (even if the accused had no prior knowledge that the particular act would take place)?”

After researching and reviewing several cases, including Bell v. State, 156 Ga. App. 190 (274 SE2d 153) (1980), McWhorter v. State, 198 Ga. App. 493 (402 SE2d 60) (1991), and Purvis v. State, 208 Ga. App. 653 (433 SE2d 58) (1993), and discussing the matter with counsel, the court decided to recharge in accordance with language found in McWhorter: “[1] While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. [2] If the defendant had prior knowledge of the intended offense and shared in the criminal intent of the principal actor, he is an aider and abettor. [3] Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, you may consider such conduct in connection with prior knowledge, and you would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime. [4] If you find that the defendant had knowledge of the commission of the offense and after the act drove the car in a precipitous manner, you would be authorized to find he was a party to the crime. [5] However, if you do not find that he had such knowledge, the state has not carried its burden of proof on this issue.” (Sentence numbering supplied.)

Sentences 1 through 3 of the recharge are virtually identical to language found in McWhorter, supra. Sentence 4 is loosely adapted from language in that case, to wit: “The evidence that [appellant] drove [McWhorter] to the scene and waited while the crime was being committed in his presence and then drove the getaway vehicle in a precipitous manner was sufficient to authorize the jury to find him guilty beyond a reasonable doubt as a party thereto.” Id. at 493 (1). McWhorter had relied on the following language from Bell, supra at 190: “The driver of a getaway vehicle who waits in the car while another commits a crime, starts the motor at the latter’s approach, and drives precipitously away, speeding, running off the road to avoid obstacles, and failing to observe stop signs or calls to stop, may in the absence of convincing evidence to the contrary be found guilty as a party to the felonious conduct of his comrade.”

Appellants first contend that sentence 4 is confusing and prejudicial when viewed in conjunction with the preceding sentences, and that it invaded the province of the jury by suggesting that merely having knowledge and driving the car would in and of itself be sufficient to convict Carter as a party.

First, “language which is appropriate when contained in an opinion by a reviewing court may be improper when embodied in a jury charge.” Lofton v. State, 157 Ga. App. 447 (278 SE2d 94) (1981). While the court might have chosen more precise language to express the principle, the jury could not possibly have been confused or prejudiced by it. In the first three sentences, the jury was given well-established law on aiding and abetting in the broadest sense. The fourth sentence was merely a narrower explanation of this law, was tailored to the evidence, and was specifically derived from holdings in prior cases.

Second, the charge did not invade the province of the jury. See OCGA § 17-9-2. Sentence 4 was a “correct exposition of the law,” Grif fin v. State, 154 Ga. App. 261, 265-266 (4) (267 SE2d 867) (1980), and in no way suggested the court was applying the law to the evidence.

Even if sentence 4 had been improper, “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” (Citations and punctuation omitted.) Wells v. State, 247 Ga. 792, 795 (2) (279 SE2d 213) (1981). The recharge as a whole presents an accurate picture of the law in OCGA § 16-2-20.

Carter and Scott also maintain that sentence 4 curtailed the jury’s consideration of evidence that suggested Carter was not a party to the crime, by in effect excluding certain admissible evidence. They cite Bullington v. Chandler, 110 Ga. App. 803 (140 SE2d 59) (1964), for the rule that a charge is improper if it removes admissible evidence from the jury’s consideration. Even assuming Scott has standing to advance this ground, the rule does not apply because the recharge as a whole provided an accurate and complete statement of the law relating to parties, and thus did not have the improper effect asserted.

Likewise, they argue, sentence 3 limited and directed the jury’s focus to incriminating evidence, thereby diminishing the effect of exonerating evidence. The gist of appellants’ argument is that the charge subliminally instructed the jury to only pay attention to the evidence that indicated Carter had knowledge and that he drove precipitously, and if they so found, they could properly find he was a party. The court should have balanced sentence 3, they urge, by instructing that if a defendant was at the scene and took measures to prevent or disassociate himself from any criminal activity, the jury could consider such conduct with evidence of lack of prior knowledge so as to conclude that defendant did not support or approve the commission of the offense.

This argument fails. The court reminded the jury in sentence 5 that if they did not find appellants had prior knowledge, the state had not carried its burden of proof on this issue. Accordingly, the court gave a “balancing” charge in appellants’ favor.

Moreover, sentence 3 is an axiomatic principle of law in the area of aiding and abetting. See, e.g., McWhorter, supra; Butler v. State, 194 Ga. App. 208, 209 (2) (390 SE2d 278) (1990); Parker v. State, 190 Ga. App. 126, 127 (378 SE2d 503) (1989). The court is required to charge the law on those subjects which are material and applicable, and the charges must be tailored to the indictment and adjusted to the evidence admitted. Crosby v. State, 150 Ga. App. 555, 557 (2) (258 SE2d 264) (1979); Ross v. State, 255 Ga. 1, 5 (5) (334 SE2d 300) (1985). The law does not require the court to state the opposite or corollary of each charge given.

Appellants also contend that in crafting the recharge exclusively from McWhorter, supra, and in failing to instruct in accordance with appellants’ suggested charges, the judge violated OCGA § 17-8-57 by-expressing his opinion that the State had proved its case.

Appellants pressed the court not to charge from McWhorter but instead to charge that “to be guilty as a party to a crime as an aider or abettor pursuant to OCGA § 16-2-20 (b) (3), a defendant must be an accessory before the fact.” Purvis, supra at 654-655. Again, they argue that the charge from McWhorter, given exclusively, directed the jury to focus only on evidence suggesting appellants were aiders and abettors, to the exclusion of evidence suggesting they were merely accessories after the fact.

Although the evidence would have permitted the court to give the charge from Purvis, “ ‘[i]t [was] not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles. (Cits.)’ [Cit.]” McGee v. State, 172 Ga. App. 208 (1) (322 SE2d 500) (1984). The wording of the charge did not constitute an expression of opinion. OCGA § 17-8-57.

Carter and Scott also both objected after the recharge that the court had stressed the word “conduct” in the phrase “presence, companionship and conduct” in sentence 1. The court responded that the pace of the reading was slower because it was a requested clarification. Appellants argue the emphasis violated the spirit of OCGA § 17-8-57 because it likely prejudiced the jury. “ ‘ “(Section) 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. (Cits.)” (Cits.)’ [Cit.]” Bussey v. State, 202 Ga. App. 483, 485 (2) (414 SE2d 710) (1992). Appellants fail to show how the court’s reading of the charge did so.

Appellants also contend sentence 4 is argumentative in that in the guise of stating the applicable law, the judge in fact argued the State’s case. They submit, for example, that whether the defendant had knowledge and drove away in a precipitous manner was subject to debate, since there was evidence to the contrary, so that even if sentence 4 is a correct statement of the law, it should not have been read because it is argumentative in nature. They cite Hutchinson v. Tillman, 133 Ga. App. 660 (211 SE2d 912) (1975).

It is true that “ ‘[w]here the charge , of the court is argumentative and so strongly states the contentions of one of the parties as to weaken and disparage those of the opposite party, and thus is liable to impress the jury that the court is of the opinion that the defendant is guilty, a new trial should be granted.’ ” Ryan v. State, 46 Ga. App. 347, 350 (167 SE 720) (1933).

Appellants’ complaint in this regard falls to the same analysis expressed in Liberty Nat. Life Ins. Co. v. Power, 112 Ga. App. 547, 554-555 (6) (145 SE2d 801) (1965): “[T]he charge to the jury must be considered as a whole and each part considered in connection with every other part of the charge. [Cit.] Reading the charge as a whole, we find that the charge fairly presented the contentions of both parties. In order to be argumentative, the charge would have had to state inferences from the evidence, reasoning, or conclusions. It was not argumentative, for it merely stated the law appropriate to contentions of the parties made by the pleadings and evidence.” Compare Hosp. Auth. of Walker, Dade & Catoosa Counties v. Smith, 142 Ga. App. 284, 288 (7) (235 SE2d 562) (1977) (court properly refused requested charge as argumentative in that it was couched in language more favorable to defendant than to plaintiff).

Decided February 3, 1997.

Roosevelt Warren, for appellant (case no. A96A1712).

Clifton Boone, for appellant (case no. A96A1713).

J. Tom Morgan, District Attorney, Jacqueline S. Hardy, Desiree S. Peagler, Assistant District Attorneys, for appellee.

2. In their final enumeration, Carter and Scott enumerate as error the denial of their motions for directed verdict of acquittal. The court may direct this verdict when there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom demands a verdict of acquittal. OCGA § 17-9-1 (a). Such a verdict is mandated unless, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find each essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, supra at 319 (III) (B); Adams v. State, 164 Ga. App. 295, 296 (1) (297 SE2d 77) (1982). Appellants’ motions were properly denied in light of the resolution of conflicts in the evidence against appellants by the factfinder and the sufficiency of evidence of each essential element of the crime.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


text:
    A96A1874.
    THE STATE v. McMANUS.
    (481 SE2d 243)
   Birdsong, Presiding Judge.

The State appeals from the grant of Patrick McManus’ motion to suppress, and McManus has moved to dismiss the appeal. The record shows that on January 11, 1996, after the trial court ruled from the bench granting McManus’ motion, the State filed a nolle prosequi on the charges pending. Later, a new accusation on the same charges was drawn on January 24, 1996, and was filed on January 25, 1996. Thereafter, the State filed a notice of appeal on February 1, 1996, seeking to appeal from the grant of the motion to suppress. Held:

Decided February 3, 1997.

Benjamin F. Smith, Jr., Solicitor, Rebecca A. Hulsey, Barry E. Morgan, Assistant Solicitors, for appellant.

H. Darrell Greene & Associates, Patrick H. Head, for appellee.

Although we agree with the State’s contentions that charges may be refiled after entry of a nolle prosequi (see Kyles v. State, 254 Ga. 49 (326 SE2d 216); State v. Davis, 201 Ga. App. 533, 534 (411 SE2d 555)), the State’s authority to refile an accusation after entry of nolle prosequi does not affect the issue on appeal. The State elected to enter a nolle prosequi on the first accusation, and that brought the prosecution of that accusation to an end. Nolle prosequi is the State’s formal action on its decision not to further prosecute that accusation. Redding v. State, 205 Ga. App. 613, 614 (423 SE2d 10). “At that time the prosecution was at an end, and all the incidents to it came to an end. State v. Davis, 196 Ga. App. 785, 786 (397 SE2d 58) (1990). Accordingly, the trial court’s [January 11 oral decision that was entered on January 13] ruling on the motion to suppress cannot be considered by this court. See Jones v. State, 115 Ga. 814, 817-818 (1) (42 SE 271) (1902).” Merrill v. State, 201 Ga. App. 671, 672 (411 SE2d 750). Therefore, the appeal is moot and McManus’ motion to dismiss is granted.

Appeal dismissed.

Beasley and Blackburn, JJ, concur.


author: Andrews, Chief Judge.

text:
    A96A1912.
    ALFORD v. THE STATE.
    (480 SE2d 893)
   Andrews, Chief Judge.

Curtis Alford appeals from the judgment entered on a jury verdict finding him guilty of nine counts of burglary and one count of attempted burglary.

1. Alford claims he was entitled to a new trial because the jury’s guilty verdict was against the weight of the evidence and was contrary to principles of justice and equity. On appeal, we do not reweigh the evidence by resolving conflicts in the evidence or by determining the credibility of witnesses. Rather, we accept the jury’s factual determinations by viewing the evidence in the light most favorable to the jury’s verdict and determine if the evidence, so viewed, was sufficient to support the verdict. Thus viewed, the following evidence was produced in support of the convictions:

Under Count 1 of the indictment, the State alleged that Alford and co-indictee, Arthur Hall, burglarized Covington Credit, a business located in LaGrange, on or about February 25, 1994. An employee of the business testified that, when she arrived to open the business on the morning of that date, she discovered the back door had been kicked in and a telephone, a radio, and a coffeemaker were missing from the business. The State produced testimony and a statement from Hall, who entered a guilty plea to this count prior to trial, that on the date of the charged burglary he and Alford broke into the business, stole a telephone and a radio, and then left the stolen items in a lot near the business. Alford’s brother testified that Alford told him he broke into Covington Credit. A radio found by police in a lot a couple of blocks from the business shortly after the burglary was identified by the employee as the radio taken in the burglary.

Under Count 2, the State alleged that Alford and Hall burglarized the Pig & Chic restaurant in LaGrange on or about March 12, 1994. An employee of the business testified that, when he arrived to open the business on that date, someone had broken in the front door, ransacked the business, and stolen the cash register. Alford’s girl friend testified that she was with Alford and Hall on the date of the burglary; that she saw Hall break down the door of the business, and that Hall and Alford went inside the business saying they were going to get some money.

Under Count 3, the State alleged that Alford and Hall attempted to burglarize Yates Grocery store in LaGrange on or about March 12, 1994. A part owner of the store testified that she received a call on that date in the middle of the night after the store’s alarm system went off. Upon arrival at the store, she discovered that someone had broken down the back door of the store. Alford’s girl friend testified that she was with Alford and Hall on the date of the burglary, and that she saw Hall kick open the door to the store while Alford stood back and waited. She testified that, when the alarm went off, everybody ran, and she saw Hall and Alford laughing about what happened. The State also produced testimony from a police detective who testified that the girl friend gave him a statement in which she said that she saw both Alford and Hall kick open the door to the store. Alford’s brother also testified that he saw Alford and Hall kick the door to the store. Hall testified and admitted he gave a statement to a detective stating that Alford was with him at the Yates store and helped him kick the door, but he claimed the statement was false and that Alford was not involved. A recorded statement given by Hall to the detective was admitted in which Hall stated that he and Alford broke open the door to the Yates store.

Under Count 4, the State alleged that Alford and Hall burglarized the LaGrange Headstart building on or about March 8, 1994. A Headstart employee testified that on that date she discovered that someone had broken into the building, ransacked it, and taken some items of food. Alford’s brother testified that on the date of the charged burglary he was with Alford, Hall, and others at the Head-start building. He testified that he heard some of the group trying to break a window in the back of the building and calling for Alford; that he saw Alford go back with the group, and that Alford told him he threw a brick through the window. He testified that he saw Alford with some apples and oranges he got from the building. Hall, who pled guilty to this count prior to trial, testified and admitted he told a detective that Alford helped him break into the Headstart building on March 9, but he claimed the statement was false and that Alford was not involved. .

. After the jury was unable to reach a verdict on Count 5, the trial court declared a mistrial on the burglary charge alleged in Count 5 of the indictment.

Under Count 6, the State alleged that Alford burglarized The Added Touch, a business located in LaGrange, on or about February 7, 1994. One of the owners of the business testified that on that date she was called at home in the middle of the night by police, and, upon arrival at the business, she discovered that the back door of the business had been broken down and several book bags were missing from the business. The State produced testimony from a juvenile who said that on the date of the charged burglary Alford told him to break into The Added Touch; that he and Alford broke down the door to the business, and that he went inside and got some book bags and gave them to Alford, who was waiting on the back porch near the door. Alford’s brother testified that Alford gave him some book bags that Alford said he got from the juvenile. After police recovered the book bags from Alford’s brother, the bags were identified by the owner of the business as the items taken in the burglary.

Under Count 7, the State alleged that Alford burglarized the Newman Construction Company, a business located in LaGrange, on or about January 6, 1994. An employee of the business testified that, when he came into work on the morning of that date, he discovered that someone had broken into the business by breaking through a back window in a storage area and then kicking open a door into an office area. He discovered that a radio was missing from the business. The employee identified a radio that police recovered from Alford’s residence as the radio taken in the burglary. Another employee of the business also identified the radio as the one taken in the burglary and testified that it had been there for five or six years. When the radio was recovered by police, it was covered with graffiti, including Alford’s street name, "Hammer,” which was not on the radio before it was taken in the burglary. Alford’s brother testified that he saw Alford bring the radio to their residence and that, when he did so, it did not have any graffiti on it. Alford’s girl friend testified that Alford left the radio over at her residence for a while, and that she saw him put the graffiti on it. When asked if Alford told him that the radio came from Newman Construction Company, Alford’s brother replied that he “[p]robably did but not as I can recall.” Alford and his mother testified that he bought the radio at a yard sale in December 1993.

Under Count 8, the State alleged that Alford committed a second burglary against the LaGrange Headstart on or about January 21, 1994. A Headstart employee testified that, when she arrived at the building on that date, she discovered that someone had broken into the búilding by throwing a brick through the window, and that some items including a cordless telephone were missing. The telephone was recovered by police after the burglary, and the employee identified it as the telephone taken in the burglary. Alford’s girl friend testified that the phone identified by the employee was given to her by Alford and that she subsequently gave it to a friend. A police detective testified that they recovered the telephone from the friend.

Under Count 9, the State alleged that Alford burglarized Medicare Rental Supply, Inc., a business located in LaGrange, on or about March 8, 1994. An employee of the business testified that, when he arrived for work on the morning of that date, he discovered that someone had broken into the business and that a cash box was missing. The employee identified a cash box that police recovered from Alford’s girl friend as the cash box taken in the burglary. Alford’s girl friend testified that, around the date of the burglary, Alford told her to go to a location in LaGrange and pick up and hold the cash box, which she found hidden in some bushes. A police detective testified that the girl friend told him she found the cash box at Alford’s request, and that she also told him Alford had entered the Medicare Rental Supply business. Alford’s brother testified that Alford told him he broke into the Medicare Rental Supply business.

Under Count 10, the State alleged that Alford burglarized Alfa Insurance Company, a business located in LaGrange, on or about March 7, 1994. An employee of the business testified that, when he arrived at the business on the morning of that date, he discovered that the back door had been kicked in, and about $65 in cash was missing. He did not find anything else missing at that time. Alford’s girl friend testified that Alford told her he went into the Alfa Insurance Company business and “got some money out of it.” A police detective testified that he interviewed Alford’s girl friend after the burglary, and she told him that Alford had entered the Alfa Insurance Company business and had taken some checks. Following this interview, the detective contacted Alfa Insurance a couple of days after the burglary and asked an employee to see if any checks were missing. The employee discovered that a .book of checks was missing.

Under Count 11, the State alleged that, on or about March 4, 1994, Alford burglarized the Law Office of Brian Lockerbie located in LaGrange. Lockerbie testified that he received a call in the evening of that date indicating that the burglar alarm at his office had gone off. When he arrived at his office, he discovered that the back door to the office had been kicked in. He did not find anything missing. Alford’s girl friend testified that she was with Alford on the date of this burglary, and that she saw him kick in the door to the law office and step inside the doorway and set off the alarm. Alford’s brother testified that Alford told him he was about to go into the Lockerbie Law Office, but a security light came on and he left.

On the attempted burglary and on all of the burglaries charged in the indictment, the State produced evidence that Alford was not authorized to enter any of the business premises. Alford testified and denied that he had any involvement in any of the burglaries or the attempted burglary.

As to the attempted burglary charged in Count 3 and the burglaries charged in Counts 1, 2, 4, 6, 9, 10, and 11, the State produced direct evidence of Alford’s commission of the offenses and additional circumstantial evidence of guilt sufficient for a rational trier of fact to find Alford guilty beyond a reasonable doubt. OCGA §§ 16-7-1; 16-4-1; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to the burglaries charged in Counts 7 and 8, the State produced circumstantial evidence of Alford’s guilt sufficient to exclude every other reasonable hypothesis save that of his guilt and sufficient to allow the jury to find him guilty beyond a reasonable doubt. OCGA § 24-4-6; Wells v. State, 151 Ga. App. 416, 417 (260 SE2d 374) (1979); Jackson v. Virginia, supra.

2. Alford contends the trial court erred by allowing the State, over his objection, to present hearsay testimony from a police detective. The detective repeated what Alford’s brother and girl friend told the detective they were told by Alford. Although the detective testified that Alford’s girl friend and brother both gave him statements indicating that Alford told them about his involvement in certain burglaries, the detective did not testify as to the content of any statement given to him by Alford’s brother. In any event, the detective’s testimony as to the statements was not subject to a hearsay objection.

Alford’s girl friend and brother testified at trial and were subject to cross-examination by Alford as to the truth of their testimony. Accordingly, the testimony by the detective as to these witnesses’ prior statements, whether showing the statements to be consistent or inconsistent with the witnesses’ testimony, was admissible under Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982) and Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). “Under Gibbons, supra, a prior inconsistent statement made by a witness who takes the stand and is subject to cross-examination is not limited in value to impeachment, but is admissible as substantive evidence of the matter asserted. Under Cuzzort, supra, ‘where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible (as substantive evidence).’ [Cit.]” Foster v. State, 216 Ga. App. 26, 28 (453 SE2d 482) (1994); Moak v. State, 222 Ga. App. 36, 41 (473 SE2d 576) (1996). The trial court did not err by overruling Alford’s hearsay objection.

3. Alford contends the trial court should have granted his motion for a mistrial because the State improperly attempted to impugn his character by introducing testimony that he may have committed another burglary not charged in the indictment. During the State’s direct examination of an employee of Medicare Rental Supply, Inc., the prosecutor asked the employee to describe what he saw when he arrived at the business on the morning after the burglary. The employee responded that the business did not look as bad as it did after a previous burglary because “I guess this time they knew where everything was. . . .”

This was not an attempt by the State to introduce evidence that Alford committed a previous burglary at the business. Even if the witness’ testimony implied that the present burglary was committed by the same people who had previously burglarized the business, the testimony was not responsive to the question posed by the prosecutor, so it did not place Alford’s character in issue under OCGA § 24-9-20 (b). Nelson v. State, 204 Ga. App. 409, 410 (419 SE2d 502) (1992). Moreover, even assuming the testimony placed Alford’s character in issue, the trial court gave precautionary instructions to the jury sufficient to cure any error. The trial court did not abuse its discretion in denying the motion for a mistrial. Id. at 410.

4. Alford contends the trial court erred by refusing his request to charge the jury to consider his explanation, insofar as it was consistent with the circumstantial evidence, in determining whether there was a reasonable hypothesis other than his guilt. The trial court charged the jury as to its duty to consider the evidence admitted as to each separate count in the indictment, and charged the jury that, as to any count based solely on circumstantial evidence, to warrant a conviction on circumstantial evidence alone, the evidence must not only be consistent with the theory of guilt but must exclude every other reasonable hypothesis save that of guilt. OCGA § 24-4-6. The charge as given by the trial court fully and correctly covered the applicable principles of law. There was no error in refusing to give the requested charge.

5. Alford claims the trial court erred by denying his motion to sever the offenses joined in the indictment.

A defendant has an absolute right to severance of offenses joined for trial where the offenses have been joined solely because they are similar in nature. Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975); Cooper v. State, 253 Ga. 736, 737 (325 SE2d 137) (1985). Where, however, the joined offenses are not just similar in nature but are based on the same conduct, or on a series of acts connected together, or evince a common scheme or plan, there is no absolute right to severance. Rather, severance lies within the sound discretion of the trial court, which must determine whether or not severance would be appropriate to promote a fair determination of guilt or innocence as to each offense. Nichols v. State, 210 Ga. App. 134 (435 SE2d 502) (1993); Lundy v. State, 265 Ga. 30 (453 SE2d 466) (1995); Dingler, supra at 463.

Here, the joined offenses were ten burglaries and one attempted burglary all occurring in the City of LaGrange between January 6, 1994 and March 14, 1994. Seven of the eleven offenses occurred within ten days of each other. All of the burglaries and the attempted burglary involved businesses entered after the close of business hours in which entry was accomplished by forcefully smashing in a door, a window, or both. Other than checks taken in one burglary, none of which was reported cashed, no items of substantial value were taken in any of the burglaries. Based on these similarities, the trial court did not abuse its discretion in denying the motion to sever. Nichols, supra at 135; Watkins v. State, 187 Ga. App. 108 (369 SE2d 356) (1988).

6. Alford, who is black, claims the trial court erred in denying his motion brought pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) contending the State discriminated on the basis of race by exercising its peremptory strikes during jury selection to exclude black potential jurors.

The trial court concluded that Alford had established a prima facie inference that the strikes were exercised with racially discriminatory intent and required the State to give race-neutral reasons for the strikes. Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996). Defense counsel conceded at trial that the State articulated a race-neutral reason for striking one of the four black potential jurors struck by the State. As to the remaining three black potential jurors, Alford contends the trial court erred in accepting as race-neutral the reasons given by the State for the strikes. The reason given for one strike was that, when the prosecutor asked the prospective juror whether she was married or single, she laughed at the question and said she did not know if she was single or married or what her personal status was. The prosecutor stated that, because she felt the response was bizarre and the laughter inappropriate, she did not believe the prospective juror would give the case her full and serious attention. The prosecutor’s good faith concern that the juror would not properly consider the case was a proper race-neutral reason for the strike. Richard v. State, 223 Ga. App. 98 (476 SE2d 849) (1996). Another black prospective juror was struck because a law enforcement officer informed the prosecutor that he had dealt with this prospective juror over the years in his capacity as a police officer and knew her to be “very anti-law enforcement.” A concern that a juror, because of prior negative involvement with law enforcement, could not be impartial in considering the charges against the defendant is a race-neutral reason for exercising the strike. See Cooper v. State, 220 Ga. App. 531, 532 (469 SE2d 790) (1996). The last strike was exercised in the selection of one alternate juror, who was eventually seated on the jury during the trial. According to the prosecutor, this strike was exercised, not because the prospective juror was black or for any other reason personal to the prospective juror, but because the next prospective juror was known by the prosecutor and had indicated during voir dire that she had worked for the prosecutor’s husband. The prosecutor stated that, because of her prior knowledge about the next prospective juror, she believed this person would be fair and would make a good juror. The prosecutor also knew defense counsel was out of strikes. Accordingly, the prosecutor exercised the strike to obtain the opportunity to select the next prospective juror about whom she had favorable information. This was a clear and reasonably specific explanation for the strike based on a factor other than race and thus satisfied the requirement for a race-neutral reason. Id. at 532. Under the clearly erroneous standard, the trial court did not err in finding that the reasons given by the State were race-neutral and in denying the Batson challenge. Johnson v. State, 266 Ga. 775, 777 (470 SE2d 637) (1996).

Decided February 3, 1997.

Wesley T. Leonard, for appellant.

Peter J. Skandalakis, District Attorney, Monique L. Fouque, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Ruffin, Judge.

text:
    A96A1950.
    OSBORNE BONDING & SURETY COMPANY v. STATE OF GEORGIA.
    (480 SE2d 900)
   Ruffin, Judge.

Osborne Bonding & Surety Company (“Osborne”) appeals from the denial of its Motion for Refund of Surety Fees. In its sole enumeration of error, Osborne argues that the trial court misapplied OCGA § 17-6-72 (d) (1). We agree with Osborne and reverse.

On March 16, 1994, an individual signing his name as Lawson Cherry (“Cherry”) entered into an appearance bond in Clayton County, Georgia with Osborne as surety. The bond was conditioned on Cherry’s appearance in the Clayton County Superior Court to answer criminal charges. When Cherry failed to appear, the trial court forfeited the bond and issued a bench warrant for “Cherry Lawson a/k/a Lawson Cherry.” On September 12, 1995, the trial court entered final judgment against Cherry and Osborne for the bond amount plus costs. Osborne paid the required sum to the Clayton County Sheriff on January 31, 1996.

Osborne subsequently learned that Cherry had been arrested in Fulton County on March 1, 1996, and booked under the alias “Cherry Lawson.” After confirming Cherry’s incarceration, Osborne informed the Clayton County Sheriff of his location. Osborne also placed a “hold” or detainer on Cherry in Fulton County. As stipulated by the parties, Cherry was “on a hold from Osborne Bonding and Surety Company[,] not from the [Clayton County] bench' warrant or any other proceedings out of [the Clayton County Superior] Court.”

On March 11, 1996, Osborne wrote the Clayton County District Attorney’s Office and demanded reimbursement of the forfeited funds pursuant to OCGA § 17-6-72. In addition, Osborne filed its Motion for Refund of Surety Fees. On April 4, 1996, the trial court denied Osborne’s motion, finding that Osborne failed to show it met the statutory requirements for remission of the bond under OCGA § 17-6-72 (d) (1). On the same day, the trial judge ordered that the Fulton County Sheriff remand Cherry into the custody of the Clayton County Sheriff so that Cherry could appear for arraignment and trial on the Clayton County charges.

The parties agree that this case is governed by OCGA § 17-6-72 (d) (1) (supp. 1995), which provides that upon application within 120 days of paying the judgment of forfeiture, the “court shall direct remission of 95 percent of the bond amount remitted to the surety if the surety locates the principal [Cherry] causing the return of the principal to the jurisdiction where the bond was made, apprehends, surrenders, or produces the principal, if the apprehension or surrender of the principal was substantially procured or caused by the surety, or if the location of the principal by the surety caused the adjudication of the principal in the jurisdiction in which the bond was made. . . .” Construing this statute, the trial court determined that Osborne played no part in apprehending Cherry, who was already incarcerated in Fulton County when located, and thus was not entitled to a refund.

Decided February 3, 1997.

Stephen E. Boswell, Steven C. Teske, for appellant.

Cherry’s Fulton County arrest, however, did not preclude Osborne from taking advantage of OCGA § 17-6-72 (d) (1). The record shows that Cherry remained incarcerated in Fulton County after his arrest because Osborne located him there under an alias and placed a “hold” on him, not because of the bench warrant or other court proceedings in Clayton County. In addition, after confirming that Cherry was incarcerated in Fulton County, Osborne informed the Clayton County Sheriff of Cherry’s location. The record reveals no evidence that Clayton County otherwise knew of Cherry’s Fulton County incarceration. The Clayton County Superior Court then ordered that the sheriff bring Cherry to Clayton County for arraignment and trial on the Clayton County charges. This evidence shows that Osborne’s action caused Cherry’s return to Clayton County and allowed his adjudication to proceed. Accordingly, Osborne has met the requirements of OCGA § 17-6-72 (d) (1).

Our conclusion is buttressed by the 1996 amendment to OCGA § 17-6-72 (d) (1), which added the following italicized language: the “court shall direct remission of 95 percent of the bond amount remitted to the surety if the surety locates the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made. . . .” (Emphasis supplied.) OCGA § 17-6-72 (d) (1) (supp. 1996). As we recently noted, “ ‘[i]f it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.’ [Cits.]” First Union &c. v. Collins, 221 Ga. App. 442, 445 (471 SE2d 892) (1996). We find that by adding the italicized language, the legislature clarified the circumstances under which a surety may seek repayment of funds. In short, the legislature confirmed that a surety may seek reimbursement if, as in this case, it locates a principal in the custody of another jurisdiction, thus causing the principal’s return to the bonding jurisdiction.

Judgment reversed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.