text:
    A94A1715, A94A1716.
    GUY v. ROBERSON et al.; and vice versa.
    (448 SE2d 60)
   McMurray, Presiding Judge.

In 1986, Wilma Dean Guy filed a petition for divorce from William Haislip in the Superior Court of Hall County, Georgia. She subsequently named Mark Roberson and Walter Roberson (defendants) in her divorce action, alleging that certain residential real estate titled in their names was an asset of her marriage and subject to equitable division. Personal service on Mark Roberson was made by leaving a copy of the summons and complaint with his estranged wife at defendant’s address in Kennesaw, Georgia. Service of process on Walter Roberson was executed via publication, apparently pursuant to OCGA § 9-11-4 (e). Neither Mark Roberson nor Walter Roberson answered or appeared in Guy’s divorce proceeding and on August 29, 1986, she was granted a default judgment awarding her title to the property. On October 28, 1986, defendants brought a joint action seeking to set aside the final judgment in Guy’s divorce proceedings. This separate action was treated by the trial court as a motion to set aside the judgment made pursuant to OCGA § 9-11-60 (d). On February 28, 1994, the trial court entered an order which granted Walter Roberson’s motion to set aside the judgment in Guy’s divorce proceeding based on the lack of personal service of process. However, the court refused to set aside the judgment against Mark Roberson on the alleged grounds of fraud and lack of personal jurisdiction. In Case No. A94A1715, Guy appeals from the order of the superior court setting aside the default judgment she had obtained against Walter Roberson and, in Case No. A94A1716, Mark Roberson cross-appeals from that portion of the trial court’s order denying his motion to set aside.

Case No. A94A1715

1. “ ‘ “It is the duty of this court on its own motion to inquire into its jurisdiction.” (Cit.)’ Anthony v. Anthony, 120 Ga. App. 261, 264 (2) (170 SE2d 273) (1969).” Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230). In the absence of an order dismissing the case, “[t]he grant of a motion to set aside a . . . judgment [on jurisdictional grounds], like the grant of a motion for new trial, leaves the case [still] pending in the trial court below and is not a final judgment. Mayson v. Malone, 122 Ga. App. 814, 815 (178 SE2d 806). Because the judgment is not final, a direct appeal under OCGA § 5-6-34 (a) is not authorized and appellant [has] failed to follow the proper procedure for an interlocutory appeal. OCGA § 5-6-34 (b). [In the case sub judice, absent] a certificate of immediate review and application to this court for authorization to appeal, [Guy’s] direct appeal [from the grant of an OCGA § 9-11-60 (d) motion to set aside] is [unauthorized] and must be dismissed. English v. Tucker Fed. S&L Assn., 175 Ga. App. 69 (332 SE2d 365); Walton v. Collins, 172 Ga. App. 736 (324 SE2d 574); Franklin v. Collins, 162 Ga. App. 755 (293 SE2d 364); Notrica v. Southern Bell Tel. &c. Co., 147 Ga. App. 737 (250 SE2d 196).” (Emphasis in original.) Laff Lines, Ltd. v. Dimauro, 186 Ga. App. 24, 25 (366 SE2d 375).

Case No. A94A1716

2. The dismissal of the main appeal requires consideration of appellate jurisdiction over the cross-appeal by defendant Mark Roberson from the denial of his OCGA § 9-11-60 (d) motion. “Although under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal of the main appeal, ‘this is true only where the cross-appeal can stand on its own merit.’ Jones Roofing & Constr. Co. v. Roberts, 179 Ga. App. 169, 170 (345 SE2d 683) (1986).” Serco Co. v. Choice Bumper, 199 Ga. App. 846 (406 SE2d 276). In the case sub judice, Mark Roberson’s appeal from the denial of his OCGA § 9-11-60 (d) motion to set aside is subject to the application procedures for discretionary appeal under OCGA § 5-6-35 (a) (8). See Stone v. Dawkins, 192 Ga. App. 126 (384 SE2d 225). Consequently, “since the main appeal [must be dismissed] in its entirety, and [defendant has] filed no application under OCGA § 5-6-[35 (a) (8)] for [discretionary] review of the denial of [his OCGA § 9-11-60 (d)] motion, we have no independent jurisdiction for the cross-appeal, see Hutchinson v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (3) (383 SE2d 212) (1989), and accordingly it must be dismissed. . . . [Cit.]” Serco Co. v. Choice Bumper, 199 Ga. App. 846, 847, supra.

Decided August 10, 1994.

Glyndon C. Pruitt, for appellant.

Stewart, Melvin & House, Frank W. Armstrong III, for appel-lees.

Appeal in Case No. A94A1715 and Cross-appeal in Case No. A94A1716 dismissed.

Pope, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1644.
    MILLER v. THE STATE.
    (448 SE2d 20)
   McMurray, Presiding Judge.

Defendant Miller appeals his conviction of the offenses of rape and aggravated sodomy. Held:

1. Defendant was initially charged by indictment number CR92-2757 with the offenses of which he was convicted. During the investigation of those charges, police discovered evidence of an earlier offense of rape against a different victim resulting in a second indictment charging rape, indictment number CR93-0238. The State filed a motion to join the indictments for trial and defendant enumerates as error the grant of that motion. Defendant was acquitted of the charges in the second indictment. Maintaining that the crimes alleged in the two indictments were merely similar crimes and not part of any single scheme or plan, defendant contends that the joinder was erroneous.

“ ‘ “In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), (the Supreme Court adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature.” Cooper v. State, 253 Ga. 736 (3) (325 SE2d 137) (1985). However, “(o)nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. (Cits.)” Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984). Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Cooper v. State, supra at 737. “ ‘Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. (Cits.)’ ” Jordan v. State, supra at 497. “(S)ever(a)nce in this particular kind of circumstance lies within the sound discretion of the trial judge. . . .” Dingler, supra, 233 Ga. at 463.’ Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988).” Hammock v. State, 201 Ga. App. 614, 617-618 (5) (411 SE2d 743).

In the case sub judice, there was ample evidence establishing the similarity of the crimes. Both victims were female children who were related to defendant at the time of the occurrences and were disrobed and subjected to forcible sexual intercourse at the victim’s residence when other adult family members were absent. Severance was not demanded.

2. Defendant contends the trial court erred in sentencing him as a recidivist. A plea of guilty that is invalid under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) may not be used to enhance punishment in a subsequent trial, and once the defendant raises an issue as to intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the State to establish a valid waiver. Gadson v. State, 197 Ga. App. 315, 317 (4) (398 SE2d 409). Defendant maintains that the State has failed to satisfy this burden.

The State has presented evidence as to prior guilty pleas to two separate offenses. If either of these guilty pleas is valid, the sentence imposed by the trial court is required by OCGA § 17-10-7 (a). We have examined the record introduced as to one of these offenses, possession of cocaine with intent to distribute, and found compliance with the requirements under Boykin v. Alabama, supra, in that defendant is informed of the nature of the charge against him, the consequences of a plea, and is found to have freely and voluntarily entered the plea. Peters v. State, 210 Ga. App. 211, 212 (1) (435 SE2d 731); Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255); Craig v. State, 192 Ga. App. 148, 149 (384 SE2d 240). Whether the second plea of guilty was valid is a closer question, but need not be reached since introduction of the valid plea of guilty to possession of cocaine with intent to distribute requires the sentence imposed.

3. Next, defendant enumerates as error the trial court’s refusal to give his requested charge on sexual battery. While defendant now argues that the sexual battery charge would be appropriate as to either rape or aggravated sodomy, during the charge conference trial counsel conceded that the sexual battery charge was not applicable to the charge of aggravated sodomy. As to the offense of rape of which defendant was convicted, the charge was not authorized by the evidence which shows either commission of a rape or no crime. Brooks v. State, 197 Ga. App. 194 (1), 195 (397 SE2d 622); Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547).

Decided August 1, 1994

Reconsideration denied August 12, 1994

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Greg M. McConnell, Assistant District Attorney, for appellee.

4. In his final enumeration of error, defendant contends that his conviction was not authorized by the evidence. This contention is predicated entirely upon the failure of the victim, who was seven years of age on the trial date, to identify defendant as the perpetrator at trial. Nonetheless, a videotaped interview with the victim was admitted into evidence containing the victim’s assertion that “Jerry” was the perpetrator. See OCGA § 24-3-16; Kelly v. State, 197 Ga. App. 811, 813 (2) (399 SE2d 568). Other evidence showed that defendant was the only person known to the victim by this name. There was ample evidence from which a rational trier of fact could determine the guilt of defendant beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Knight v. State, 210 Ga. App. 63, 64 (1), 65 (435 SE2d 276).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A1039.
    PILCHER v. THE STATE.
    (448 SE2d 61)
   Beasley, Presiding Judge.

Appellant appeals his conviction of robbery by sudden snatching. OCGA § 16-8-40 (a) (3).

The victim testified that as she was leaving her motel room, she observed two men in the parking area walking in the opposite direction. Shortly thereafter, she felt someone come up from behind her and grab her purse. She then saw him in front of her as he was running away. She positively identified appellant as the man who grabbed her purse. She began to scream for someone to catch him. A maintenance supervisor at the motel heard her scream and saw two fleeing suspects. He chased and apprehended the man with the purse, whom he identified as appellant.

Appellant testified that his companion snatched the victim’s purse and tossed it to him, he did not know beforehand that his companion was going to do this, and he instinctively ran when the victim began to scream.

1. Appellant enumerates as error a certain portion of the burden of proof charge, contending that it lessened the degree of proof necessary to convict. The targeted part must be viewed in context. See, e.g., Sleeth v. State, 197 Ga. App. 349 (1) (398 SE2d 298) (1990).

Immediately before giving it, the court instructed the jury: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the Defendant whatever. And the burden never shifts to the Defendant to prove innocence.” The court then charged the portion now claimed as error: “However, the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.” The issue was preserved for review by the defendant’s reservation of objections at the conclusion of the court’s instructions to the jury. McCoy v. State, 262 Ga. 699, 700 (2) (425 SE2d 646) (1993).

Appellant cites no authority to support his position but presents instead the argument that this sentence implies that something less than “beyond a reasonable doubt” would be sufficient. Specifically, he contends, describing the burden in this mathematical terminology digresses from the required standard and reduces the burden to one of probability.

The United States Supreme Court recently reviewed two states’ attempts to define “reasonable doubt” to juries, in Victor v. Nebraska and Sandoval v. California, 511 U. S._(114 SC 1239, 127 LE2d 583) (1994). In Sandoval, supra, the trial court defined reasonable doubt in part as (1) “ ‘not a mere possible doubt,’ ” since “ ‘everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt’ ” and (2) that which leaves the jury unable to say that “ ‘they feel an abiding conviction, to a moral certainty, of the truth of the charge.’ ”

In Victor, supra, the court defined reasonable doubt, in part, as “such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required.” (Punctuation omitted.) A question presented was whether a modern jury would understand the phrase “moral certainty” to allow conviction on proof that does not meet the “beyond a reasonable doubt” standard. In both cases, the Supreme Court answered this question in the negative. It held that, taken as a whole, the instruction correctly conveyed the concept of reasonable doubt to the jury. In neither Victor, supra, nor in Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1980), did the Court find anything objectionable in a trial court’s defining reasonable doubt by instructing the jury that “mathematical certainty” is not required.

2. Appellant next contends that the. court erred in instructing the jury that intent “may be inferred from the proven circumstances or by acts and conduct. Or it may be in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion.”

Appellant argues that the jury could have understood this to mean that the element of intent could be found simply as a matter of the jury’s uncontrolled discretion and thus arbitrarily. We reject this argument, just as the Supreme Court rejected a similar argument in Dill v. State, 254 Ga. 17 (1) (325 SE2d 765) (1985). Immediately prior to giving the complained-of portion of the charge in this case, the court instructed the jury that intent “is an essential element of any crime and must be proved by the State beyond a reasonable doubt.” The charge on intent was sufficiently clear to be understood by jurors of ordinary capacity and understanding, and, therefore, it is not necessary to assume a possible adverse construction. Feblez v. State, 181 Ga. App. 567, 568 (2) (353 SE2d 64) (1987).

3. Appellant contends that the court erred in instructing the jury, “If upon a consideration of the evidence in this case, you find that there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this, then it becomes your duty to believe that witness or those witnesses you think best entitled to believe. It is for you alone to determine what testimony you will believe and what testimony you will not believe.”

There is no merit in appellant’s argument that this charge invaded the province of the jury. In Gordy v. State, 236 Ga. 723 (2) (225 SE2d 287) (1976), the Supreme Court found no error in a substantially similar charge. Appellant’s argument that this charge violates the due process mandate of the Fourteenth Amendment is likewise without merit. See O’Donnell v. State, 258 Ga. 782, 783 (2) (374 SE2d 729) (1989).

4. Finally, appellant contends that the court erred in instructing the jury, “You must believe the credibility or believability of the witnesses.”

Decided August 12, 1994.

Joe H. Thalgott, Morris S. Robertson, Celia Larsen, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.

Immediately after giving the complained.-of instruction, the court charged the jury, “It is for you to determine what witness or witnesses you will believe and which witness or witnesses you will not believe, if there are some you do not believe.” The court then gave the criteria to be used in passing upon the credibility of witnesses, followed by the charge complained of in appellant’s third enumeration. The court’s charge to the effect that the jury must “believe” the witnesses was a verbal inaccuracy resulting from a slip of the tongue and did not constitute reversible error. See Morgan v. State, 204 Ga. App. 178, 180 (1) (b) (419 SE2d 313) (1992); Caldwell v. State, 167 Ga. App. 692, 695 (4) (307 SE2d 511) (1983).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Andrews, Judge.

text:
    A94A1069.
    PHELPS et al. v. HUFF.
    (448 SE2d 64)
   Andrews, Judge.

Mr. and Ms. Phelps, Mr. and Ms. Osborne, and McElroy, plaintiffs below and owners of property abutting that of Ms. Huff, defendant below, appeal from the judgment entered on the jury’s verdict in Huff’s favor regarding their joint boundary.

Viewed in favor of the verdict, the evidence was that all of the land involved was originally part of a 275-acre farm purchased by F. N. Carter in 1935. The farm consisted of seven 40-acre Land Lots. The land was divided among Carter’s seven children in 1954, with Sarah Stubbs, the daughter of Carter and mother of Huff, receiving Land Lot 98 and Endicott, the predecessor in title of plaintiffs, receiving Land Lot 97, adjoining Land Lot 98 on the west. Endicott was a granddaughter of Carter and the niece of Sarah Stubbs.

In 1957, Endicott and Stubbs arranged to have the boundaries of Land Lots 97 and 98 surveyed by Robinson, the Paulding County surveyor. Robinson came to the property on April 29, 1957 and met En-dicott and Stubbs. He surveyed Land Lot 97, including the line forming the common boundary of that lot and Land Lot 98. Robinson showed Endicott and Stubbs the iron pins he set in the corners forming the ends of that common line and, about midway up the line, a pin showing where the line crossed Willow Springs Road, which went through both lots. Robinson testified that “those ladies both agreed on the line. They was satisfied with it before I left there.”

On April 30, Robinson returned to survey the remaining three lines of Land Lot 98. Several of the Stubbs children, including William Stubbs, Huff’s brother, and his wife Louise Stubbs came to the property to walk the lines with Robinson. Some of the men and boys carried iron pins and wooden stakes for Robinson and placed the stakes and pins every 100 feet on the lines until they ran out. The family members walked the entire perimeter of Land Lot 98 with Robinson. The two plats reflecting these surveys were recorded by Robinson on May 2, 1957.

In 1965, Ms. Stubbs signed a contract allowing timber to be cut from Lot 98. In connection with the timber cutting, Georgia Kraft had a survey run which showed the common boundary with Lot 97 to the east of Robinson’s line.

In 1972, when Huff was preparing to build a home on part of Land Lot 98, Stubbs wrote a letter on her behalf to Endicott requesting that Endicott sign a boundary line agreement which reaffirmed the original corners of the joint line between Land Lots 97 and 98, per Robinson’s survey. Endicott, an attorney, refused to sign the agreement, responding that she thought such an agreement unnecessary because “[a] boundary line is a boundary line, and that is it.”

Mr. Huff placed part of a telephone pole inside the iron pin at the southwest corner of Land Lot 98 to remark the original line because the old pin was damaged.

In 1982, the Huffs had the small interior lot in Land Lot 98 containing their home surveyed by Cruselle. That plat reflects a distance of 200.97 feet to the western boundary of Land Lot 98, which is the Robinson line.

In 1984, Endicott was preparing to sell lots out of Land Lot 97 and wrote to real estate agent Lee, now deceased, on February 18 concerning a proposed listing of her property with Lee’s employer, Cherokee Properties. In that letter, Endicott discussed her awareness of a line dispute and states that, in 1957 when Robinson surveyed Land Lot 97, “he also surveyed lot number ninety-eight, which at that time belonged to Mrs. Bill Huff’s mother, Mrs. Sarah Stubbs, who was my aunt. She and I were both present at the time of the survey and we both agreed with Robinson as to the property lines and accepted his survey as correct. The same agreeing with the one on record in the courthouse at that time.”

In 1984, the Camps bought the southwestern portion of Land Lot 98 from Huff, including the Huff home. The Camps’ survey was done on May 14,1984 by LSI Surveys and used a line to the east of Robinson’s as the western boundary of their portion of Lot 98.

Surveyor Knight was asked by the real estate company to survey the outer boundaries of Land Lot 97 in preparation for Endicott’s subdividing and sale of portions of this lot. On his plat, dated May 25, 1984, Knight located the common boundary line with Land Lot 98 approximately 35 to 45 feet to the east of Robinson’s line, cutting off approximately an acre from Huff’s property and including it in En-dicott’s. Knight did not reference the Robinson line or the Georgia Kraft line, indicating only the line he surveyed. His line was consistent with the Georgia Kraft line.

On June 10, 1984, Cruselle, now working for LSI, surveyed all of Land Lot 98 for the four Stubbs children who had split up Sarah Stubbs’ property after her death. In this survey, Cruselle reflected two western lines of Land Lot 98, indicating the Robinson line and what Cruselle said in his opinion was the true line, to the east of the Robinson line. This second line was the Georgia Kraft-Knight line.

Endicott sold that portion of Land Lot 97 abutting Land Lot 98 to the Phelpses, Osbornes, and McElroy. They made claims to the disputed area between the Robinson and Knight lines which were first addressed by Huff in 1988 when her attorney wrote letters claiming the Robinson line as the true line. A driveway was blazed and concrete poured on the disputed tract by the Phelpses and Osbornes. When Huff had the land resurveyed and marked consistently with the Robinson line and began preparations to build a fence, plaintiffs obtained a restraining order and initiated this litigation. Huff counterclaimed for damages due to the cutting of some of her trees and the fact the driveway would have to be removed. The verdict was for Huff on the issue of location of the line and for plaintiffs on Huff’s counterclaim.

1. Appellants’ first enumeration is that the court erred in allowing into evidence defendant’s exhibit no. 23, Endicott’s letter to Lee, quoted above, “which contained hearsay.”

Lee was deceased at the time of trial and Endicott was not competent to testify due to age and ill health. Lee’s employer testified that he had located the letter in his files. Huff identified the signature on the letter as Endicott’s.

Prior to trial, appellants filed a motion in limine contending that defendant’s exhibit no. 23 was hearsay or in violation of former Ga. Code Ann. § 38-1603 (“Deadman’s statute,” which was revamped by Ga. L. 1979, p. 1261). The latter ground was not raised when the letter was introduced into evidence and is not argued here.

Although other bases for objecting to the letter are argued in the brief, we consider only the hearsay ground which is contained in the enumeration of error. Batten v. Chrysler Corp., 211 Ga. App. 173, 175

(2) (438 SE2d 647) (1993).

OCGA § 24-3-13 provides that “[traditional evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source from which it comes.” Such evidence is an exception to the hearsay rule. Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975); Deaton v. Swanson, 196 Ga. 833, 837 (3, 4) (28 SE2d 126) (1943); Waddell v. Cole, 138 Ga. App. 15 (2) (225 SE2d 491) (1976); (oral declarations of deceased predecessors in title or other witnesses as to line location admissible); see Shuman v. State, 84 Ga. App. 585, 587 (2) (66 SE2d 152) (1951).

The letter was properly admitted.

2. In their second enumeration, plaintiffs contend that the admission of opinion testimony by a surveyor and a real estate attorney was error.

Huff contended that the boundary line was established by acquiescence in 1957 when she and Endicott agreed to the line pointed out to them by Robinson, OCGA § 44-4-6; Young v. Griffin Lumber Co., 200 Ga. App. 692, 694 (2) (409 SE2d 264) (1991), or that the Huffs had gained title to the disputed property by adverse possession up to the Robinson line, OCGA § 44-4-7.

(a) Tibbets, a registered surveyor, was retained in 1991 by the Huffs to prepare a plat reflecting the location of the contested lines between Land Lots 97 and 98. On his survey, he reflects the Robinson line and the Kraft-Knight-Cruselle line. He testified and, during direct examination by the Huffs, was asked if “in your understanding of the law of surveying, does the surveyor have the authority to establish a property line? A. Not in the case of an already established property line. . . . The only time a surveyor has authority to establish a property line is in the case of a new parcel creating a new parcel of land.” (Emphasis supplied.) No objection was made to this testimony by plaintiffs.

On cross-examination by plaintiffs, Tibbets was again asked about this subject and responded that a surveyor could establish a line for a property owner “[i]n the case of a subdivision or a property line agreement.”

On redirect, Tibbets was asked a hypothetical question based on the facts as to whether, if a dividing line had not been previously surveyed, the adjoining owners were present, shown the line surveyed that day by Robinson, and accepted his survey as correct, “as a surveyor, based on your knowledge and understanding, in your opinion, did [he] establish the common line between the adjoining landowners.” He answered affirmatively.

This hypothetical question was objected to on the basis that it called for a legal opinion involving the ultimate issue for the jury and was based on facts not in evidence. There is no basis for this latter ground.

“Where a party fails to object to certain inadmissible evidence, but later objects to substantially the same evidence, the objection should be overruled because the failure to object the first time makes this harmless error. [Cit.]” Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (2) (a) (199 SE2d 881) (1973). Dept. of Transp. v. Coley, 184 Ga. App. 206, 207 (1) (a) (360 SE2d 924) (1987). Having allowed Tibbets to repeatedly testify that a surveyor, with agreement of the owners, could establish a line in a previously unsurveyed area, the objection to the hypothetical was too late. Id.

Additionally, Tibbets’ opinion was not a legal one but one of fact based on his knowledge and practice of the profession of surveying and the effect, as far as a surveyor was concerned, of agreement by adjoining property owners as to the location of a line which had never been surveyed before. “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). See Lawhorne v. Soltis, 259 Ga. 502, 504 (2) (384 SE2d 662) (1989).

(b) Attorney Benson had been retained by the Stubbs’ children to do a title search of Land Lot 98 in 1983, before the Knight survey. He examined the Robinson plat as part of this search and noted no dispute of record as to the location of the western line of Land Lot 98 at that time.

In 1987, he was contacted by Endicott and Huff about their concern that another survey had placed the line in a different location. In 1988, he wrote letters advising the plaintiffs of Huff’s contention.

On direct examination by Huff, Benson affirmatively answered the following hypothetical question: “[a]ssume that in [1957], . . . Endicott and . . . Stubbs, engaged . . . Robinson, to survey their land, and assume that both . . . agreed with [him] as to the property line and accepted his survey as correct; assume that, in your opinion, as a lawyer, would the line as located ... be the property line between the adjoining owners?” (Emphasis supplied.) Plaintiffs objected, contending it called for a “legal conclusion.”

Bishop v. Lamkin, 221 Ga. 687, 689 (146 SE2d 772) (1966), was an action to enjoin a continuing trespass over a 20-foot strip of plaintiff’s property. As stated therein, “[a]gainst the contentions of the plaintiff that he is the owner of the property on which the alleged trespass occurred, the defendants allege and contend the strip of land . . . was owned by another with the right of user in . . . Bishop by deed. This, of course, is a part of the ultimate fact to be determined by the jury, and whether or not an attorney at law may qualify and testify as an expert witness as to what the law is and who has title and owns property as found by him from examination of title records under [OCGA § 24-9-67], the testimony here of the title attorney that he found the title of the 20-foot strip to be in Holmes with right of user in Bishop was a part of the ultimate fact to be decided by the jury.”

Here, after the objection was made, the trial court initially stated that “the question is actually not what the law is but where the land line is. And two people were there, and the surveyor says, ‘This is where I find the line is,’ that’s not a question of law. That’s a question of fact.” After further discussion of the “ultimate fact” issue, the court stated “I don’t think they [the jury] have to take the opinion, sort of second-handed, that the lawyer gave that it is the real line, but he [the surveyor] is there, and both sides agree that that’s the line, that’s it.”

Benson’s opinion, “as a lawyer,” can only be interpreted as his opinion that this agreement would establish the line as a matter of law, which, with adequate instruction from the court, was the jury’s responsibility. See Bishop, supra.

“ ‘To allow testimony of this kind, would be to allow a witness to testify what the law is. Witnesses must testify to facts, and the court is responsible for the law.’ [Cit.]” Taylor v. State, 204 Ga. App. 489 (3) (419 SE2d 745) (1992). See Nichols v. State, 177 Ga. App. 689, 693 (2) (340 SE2d 654) (1986); Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 707 (2) (266 SE2d 345) (1980).

This, however, does not end the inquiry. Here, the trial court fully instructed the jury that the determination of whether the property line had been established under the legal theory of acquiescence or adverse possession was theirs. They were also instructed that the credibility of the witnesses and the weight of the evidence were for their determination. Therefore, this error was not harmful. Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 726 (2) (409 SE2d 281) (1991); see Taylor, supra at 490 (3).

3. Finally, plaintiffs allege error in the court’s giving of Huff’s Requests to Charge Nos. 10 and 16.

Although Huff’s Request No. 16 was discussed during the charge conference, after the charge was given and the court asked for objections, the only objection made by plaintiffs was to Request No. 10 and that is all we consider. Jackson v. Lynch, 203 Ga. App. 244, 246 (2) (416 SE2d 564) (1992).

Decided August 12, 1994.

Jeffrey B. Talley, for appellants.

Smith & Diment, Dana G. Diment, for appellee.

As to Request No. 10, after the charge was given, the objection stated was that “the court charged . . . [No. 10] which we think was error, and we explained why earlier.” The objection voiced during the charge conference was that “I think ten is a little confusing. It talks about two different things. One is acquiescence, and the other is a degree line.”

Assuming without deciding that the broad objection voiced was adequate to preserve any error, T & M Investments v. Jackson, 206 Ga. App. 218, 222 (8) (425 SE2d 300) (1992), we find no error. Peacock v. Boatright, 221 Ga. 661, 663 (1) (146 SE2d 745) (1966); Young, supra at 693 (1) & (2).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       This “original survey” was not introduced at the trial.

       Although Benson did answer the question before the objection was voiced, the objection was immediate and we find it timely.

       The charge was that “[w]here the owners of adjoining property agree upon a line as dividing their property and they acquiesce in that line either by acts or by declarations, that line becomes the fixed boundary between the properties; whether it is the original land line makes no difference. The agreed upon line is the true line between them. Further, when an oral agreement is made and executed, it is binding upon all purchasers of that land.”


text:
    A94A1197.
    JOHNSON v. THE STATE.
    (447 SE2d 711)
   Beasley, Presiding Judge.

On March 28, 1989, Johnson pled guilty to charges of aggravated assault on a police officer, OCGA § 16-5-21 (c); robbery, OCGA § 16-8-40 (a); escape, OCGA § 16-10-52 (a) (2); failure to carry driver’s license, OCGA § 40-5-29; and operating a vehicle without a license plate, OCGA § 40-2-8 (b). Because there was no record showing he was informed of his right to appeal, he was granted leave to file an out-of-time appeal on January 4, 1994.

1. Johnson claims he was denied effective assistance of counsel in the trial court, a claim he makes for the first time on appeal. His appellate counsel did not represent him at trial or on motion for new trial. Ordinarily, this requires that the case be remanded to the trial court for an evidentiary hearing on the asserted errors. Wright v. State, 209 Ga. App. 128 (1) (433 SE2d 99) (1993). However, remand is not necessary when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel. It requires a showing that “ ‘(1) his attorney’s representation in specified instances fell below “an objective standard of reasonableness” and (2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Cit.] (Cit.)’ [Cit.]” Brundage v. State, 208 Ga. App. 58, 59 (2) (430 SE2d 173) (1993).

Decided August 12, 1994.

The contention is that trial counsel was deficient in allowing Johnson to plead guilty when he was psychologically unfit, in failing to pursue other medical evidence (presumably of his condition), and in failing to notify him of his right to appeal. He does not cite any portions of the record to substantiate these alleged deficiencies. See Court of Appeals Rule 15 (a) (1).

Trial counsel did move for, and obtain through court order, a psychological evaluation. It indicated that Johnson had the necessary communication skills to discuss his activities with an attorney, aid in his defense, and understand the consequences of pleading guilty. Johnson does not assert how, given the psychologist’s evaluation, it was unreasonable for his attorney to allow him to plead guilty. Similarly he does not suggest that any other medical evidence may have produced a different result. Brundage, supra. Failure to advise of the right to appeal has been rectified.

2. Johnson also enumerates as error the failure of the trial court to ascertain on the record whether a factual basis existed for his guilty plea, in violation of USCR 33.9. See Watt v. State, 204 Ga. App. 839, 840 (420 SE2d 769) (1992). The purpose of the rule is to “ensure that the trial court is satisfied that a factual basis does exist for the plea.” Evans v. State, 212 Ga. App. 805, 807 (443 SE2d 296) (1994). In this instance, the record demonstrates that the trial court was aware of the factual basis and satisfied that defendant had in fact committed the crimes of which he was charged. The court read the fact-specific indictment aloud. For each count there was a date, act, and, where pertinent, a victim named. Appellant confirmed that he understood the nature of these charges. The court asked defense counsel whether she had time to investigate the facts of the case and discuss them with Johnson, and whether she knew of any reason Johnson should not enter a guilty plea, which she did not. Although the details of what occurred so as to constitute the crimes were not articulated, which is the better practice, the court minimally made “such inquiry on the record as may satisfy [it] that there is a factual basis for the plea.” USCR 33.9. Compare Evans, supra.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Darrel L. Hopson, for appellant.

Robert E. Keller, District Attorney, Tom Woodward, Assistant District Attorney, for appellee.


text:
    A94A1412.
    KING v. THE STATE.
    (447 SE2d 712)
   McMurray, Presiding Judge.

Defendant was charged with the offense of theft by taking of a quilt and a bed owned by the victim. The evidence adduced at a bench trial reveals that defendant purchased a mattress and box spring for a bedroom in a house he shared with the victim’s mother. The victim testified that her mother and defendant gave her the mattress and box spring as a “birthday present” when she “moved back in with [her] mother ...” and that defendant took the mattress, box spring and a quilt (a gift from the victim’s grandmother) when defendant moved out of the house about four months later.

The trial court, sitting without a jury, found defendant guilty of theft by taking, sentenced him to 12 months to be served on probation and required him to pay a fine, penalties and restitution in the amount of $317.18. This appeal followed. Held:

1. Defendant first contends the trial court improperly considered hearsay evidence. This enumeration is without merit. “As the trial judge was the trier of facts, it must be presumed that [she] has sifted the ‘wheat from the chaff’ and selected only competent legal testimony unless it appears from the judgment that [she] considered testimony which should have been excluded. Schenck v. State, 128 Ga. App. 270 (196 SE2d 362) (1973). [In the case sub judice,] [w]e find no such evidence.” Morris v. State, 160 Ga. App. 50 (1) (285 SE2d 782).

2. In his second enumeration, defendant contends the trial court erred in failing to consider an alleged irregularity in an affidavit supporting a warrant taken out for his arrest on a charge unrelated to the crime charged in the case sub judice. Assuming such an irregularity exists, the validity of an arrest warrant unrelated to the crime charged in the case sub judice provides no basis for reversal of defendant’s conviction. “ ‘ “ ‘It is an old and sound rule that error to be reversible must be harmful. (Cit.)’ (Cits.)” (Cit.)’ Hall v. State, 198 Ga. App. 434, 435 (2) (401 SE2d 623) (1991).” Hunt v. State, 204 Ga. App. 799, 802 (5) (420 SE2d 656).

3. Defendant challenges the sufficiency of the evidence in his third enumeration, arguing that conflicting testimony of the State’s witnesses was insufficient to sustain the trial court’s verdict beyond a reasonable doubt. This contention is without merit.

“ ‘On appeal the evidence must be viewed in the light most favorable to the verdict.’ Guffey v. State, 191 Ga. App. 501 (3) (382 SE2d 202); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Issues of credibility of witnesses and weight of admitted evidence are within the province of the fact finder to resolve; ‘ “appellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.” ’ Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228).” Smith v. State, 192 Ga. App. 768 (386 SE2d 530). In the case sub judice, the victim’s testimony that defendant took her mattress, box spring and quilt without permission or authority is sufficient to authorize the trial judge’s finding that defendant is guilty, beyond a reasonable doubt, of theft by taking as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rucker v. State, 177 Ga. App. 779 (1), 780 (341 SE2d 228).

Decided August 12, 1994.

S. Lee Storesund, for appellant.

Paul L. Howard, Jr., Solicitor, Deborah Espy, Denise A. Hinds, Assistant Solicitors, for appellee.

4. In his fourth enumeration, defendant asserts that “[s]ince the trial of the case evidence that is new, and not merely impeaching or cumulative, has been found.” The record does not indicate that the trial court ruled on such an issue before the filing of this appeal. Consequently, this enumeration provides no basis for appellate review. Moore v. State, 176 Ga. App. 882, 885 (4) (339 SE2d 271); Japhet v. State, 176 Ga. App. 189, 190 (3) (335 SE2d 425).

5. Defendant contends, in his final enumeration, his sentence is illegal because there is no evidence supporting the order that he pay $317.18 in restitution. This contention is without merit. Defendant identified and offered a bill of sale and a personal check into evidence showing that the mattress and box spring cost $317.18. The trial court allowed this proof without objection. Consequently, there was evidence supporting the trial court’s sentence of restitution.

6. Issues raised in defendant’s argument but not enumerated as error are not considered. Loyd v. State, 202 Ga. App. 1, 2 (1c) (413 SE2d 222).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A1264.
    NORMAN v. THE STATE.
    (448 SE2d 219)
   Blackburn, Judge.

Appellant, Douglas R. Norman, previously appealed his conviction for possession of cocaine. In Norman v. State, 208 Ga. App. 830 (432 SE2d 216) (1993), we affirmed the conviction, but remanded with direction on the limited issue of whether Norman’s trial counsel was ineffective in failing to file a motion to suppress. Norman now appeals the trial court’s adverse ruling on remand that his trial counsel was not ineffective in this regard.

As set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to prevail on an ineffective assistance of counsel claim, the defendant must show that “ ‘(1) counsel’s performance was deficient; and [that] (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency).’ ” (Citations omitted.) Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (1991); accord Norman, supra. The burden is on Norman to make both showings, and this court can find lack of sufficient prejudice without deciding whether Norman’s trial counsel’s performance was deficient. See Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985).

In our original remand to the trial court, we stated: “[b]oth prongs of the Strickland test — whether counsel’s performance was deficient and whether a reasonable probability exists that a different result would have been obtained but for the deficiency — depend on whether probable cause existed for [Norman’s] arrest. This court cannot decide the claim on the current record. . . . The case is remanded to the trial court for an evidentiary hearing limited to whether counsel was deficient, and therefore ineffective, in failing to file a motion to suppress.” Norman, 208 Ga. App. at 833.

On remand, the trial court held trial counsel was not ineffective finding there was probable cause supporting Norman’s arrest and no grounds existed to grant a motion to suppress. We agree with the trial court’s findings and affirm.

The general facts concerning this case are set out in our opinion in Norman v. State, 208 Ga. App. at 830. At the hearing on remand, the evidence also showed the following regarding Norman’s arrest: while patrolling a high drug activity area around midnight, the arresting officers observed Norman and a female engaged in what appeared to them to be a drug transaction; when the plainclothes officers exited their vehicle and approached Norman, Norman and others around him ran; the officers identified themselves as police and gave chase; and Detective Pierce forcefully stopped Norman and after a brief struggle took him into custody.

At the hearing, Pierce specifically testified that during his pursuit of Norman he “yelled for him to stop several times,” but Norman continued running. Pierce further testified that after catching Norman he specifically told him that he was under arrest for obstruction and loitering. Norman denies ever hearing Pierce identify himself and denies ever being told the reasons for his arrest.

“Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. We conclude that in the context of the time of day and the location, [Norman’s] flight from the officer provided probable cause for a belief that he was in possession of unlawful contraband.” (Citations and punctuation omitted.) State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198) (1989).

Additionally, “[a]n offense under OCGA § 16-10-24 (a) is committed by one who ‘knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his duties.’ A conviction must be supported by some evidence of forcible resistance or opposition to the officer. [Cit.] Such actions may take the form of . . . flight from the officer after being ordered to halt. [Cits.] Whether or not the evidence established that actions taken by the appellant hindered or obstructed the officer in making the arrest is for the [trier of fact] to decide. [Cit.]” (Emphasis supplied.) Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990), overruled on other grounds sub nom. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992).

In the case at bar, Norman’s failure to stop running after Detective Pierce identified himself as a police officer and yelled stop several times and Norman’s continued struggling with Pierce after he was detained provided the probable cause for his arrest for obstruction. The trial judge, as the trier of fact, obviously chose not to believe Norman’s testimony that he did not hear Pierce identify himself as a police officer before giving chase. Such a disbelief was not clearly erroneous and we therefore must accept the trial court’s finding. Goodman v. State, 210 Ga. App. 369, 371 (436 SE2d 85) (1993); State v. Nichols, 196 Ga. App. 709, 710 (397 SE2d 3) (1990).

As the evidence in the record clearly establishes that at the time he was taken into custody the police officers had probable cause to support Norman’s arrest, there was no basis for a motion to suppress, and Norman has accordingly failed to make the required showings under Strickland, supra. Cf. Ruffin v. State, 201 Ga. App. at 793 (“When urging ineffective assistance of counsel on the basis of counsel’s failure to file a motion to suppress, appellant must ‘make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. (Cits.)’ [Cit.]”)

Decided July 27, 1994

Reconsideration denied August 15, 1994

Michael D. Reynolds, for appellant.

Douglas C. Pullen, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, Berry & Shelnutt, J. Mark Shelnutt, for ap-pellee.

We reject Norman’s argument that a motion to suppress should have been granted because Norman was neither booked nor formally charged for the obstruction offense. Whether a criminal suspect is formally charged with a crime, in and of itself, has no effect on whether there was probable cause to make an arrest for committing the crime. As discussed, supra, the record clearly establishes the police officers had probable cause at the time of Norman’s arrest. Additionally, Detective Pierce testified Norman was not formally charged because he agreed to make a controlled drug purchase to assist the police in arresting another individual.

We decline to address Norman’s additional arguments concerning the ineffectiveness of his trial counsel as these arguments were not properly raised and decided by the trial court. See Gram Corp. v. Wilkinson, 210 Ga. App. 680, 683 (437 SE2d 341) (1993); O’Kelly v. State, 210 Ga. App. 686, 687 (436 SE2d 760) (1993).

Judgment affirmed.

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


text:
    A94A1201.
    MOZINGO v. THE STATE.
    (448 SE2d 23)
   Blackburn, Judge.

James D. Mozingo appeals his conviction by a jury of two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children.

1. In his first enumeration of error, Mozingo contends the trial court erred in refusing to allow the jury to view, after their deliberations began, a videotaped interview of the victim. Despite poor audio recording, the State introduced the videotape containing an interview with the victim. Mozingo’s counsel objected to the introduction of the videotape due to its poor audio. The videotape was not played for the jury. During deliberations, the jury requested that they be allowed to review the videotape. The trial court denied the request observing that neither party had sought to play it for the jury.

A decision to reopen the evidence after jury deliberations have begun is a matter within the sound discretion of the trial court. Childs v. State, 257 Ga. 243, 255 (357 SE2d 48) (1987). Furthermore, harm as well as error must be shown. Mozingo has failed to show this court how he was harmed, especially, considering that the victim testified, thereby allowing the jury to witness her demeanor during direct and cross-examination. The trial court did not abuse its discretion in declining to reopen the evidence after the jury began its deliberations.

2. Mozingo failed to present argument or citations supporting his second enumeration of error. Therefore, it is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

3. Mozingo asserts he was denied effective assistance of counsel. “The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358, 359 (390 SE2d 442) (1990).

Mozingo contends his trial counsel should have requested a continuance because Mozingo was taking prescription drugs which impaired his mental abilities and made him appear argumentative and disoriented. However, at trial Mozingo testified as to his medical condition and drug use, and agreed that he was coherent, able to answer questions, and not in any vast amount of extreme pain. Mozingo’s response to his trial counsel’s question disputes his testimony at the hearing on his motion for new trial. Furthermore, Mozingo has failed to show how a continuance would have changed the result of the trial.

Mozingo next contends his trial counsel should have argued for the introduction of the videotape of the victim upon the jury’s request to review it. However, as determined in Division 1, the trial court did not abuse its discretion by refusing to allow the jury to view the videotape.

“In determining the effectiveness of counsel, this court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.” (Citations and punctuation omitted.) Id. at 361. Under the totality of circumstances, we find no error in the trial court’s determination that counsel was effective.

Decided August 1, 1994

Reconsideration denied August 15, 1994

Little & Adams, Sam F. Little, for appellant.

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

Judgment affirmed.

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


author: Pope, Chief Judge.

text:
    A93A0436.
    STATE OF GEORGIA v. POSTELL.
    (448 SE2d 92)
    Decided August 15, 1994.

      Michael C. Eubanks, District Attorney, Richard E. Thomas, Scott A. Drake, Assistant District Attorneys, for appellant.

      Christopher G. Nicholson, for appellee.
   Pope, Chief Judge.

This court having entered a judgment in the above-styled case at 209 Ga. App. 462 (433 SE2d 588) (1993) reversing the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 264 Ga. 249 (443 SE2d 628) (1994) judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


text:
    A94A1128.
    In the Interest of B. N. P., a child.
    (448 SE2d 73)
   Andrews, Judge.

Appellants, the parents of B. N. P., filed a notice of appeal on February 3, 1994 from: (1) the termination of their parental rights in the child entered as the final order of the Juvenile Court on November 8, 1993; and (2) the order of the Juvenile Court entered on January 28, 1994 pursuant to OCGA § 15-11-90 for placement of the child following the termination order. In their sole enumeration of error on appeal, appellants claim the evidence was insufficient to support the termination order and that, rather than terminating their parental rights, the Juvenile Court should have permitted the child to remain with them subject to conditions and limitations imposed pursuant to OCGA § 15-11-34.

Decided August 15, 1994.

Sutton & Associates, George A. Bessonette, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Charles R. Reddick, William A. King, Thomas H. Pittman, for appellee.

The Department of Human Resources has moved for dismissal of the appeal from the termination order on the basis that the notice of appeal was not filed within 30 days of the final appealable order terminating appellants’ parental rights as required by OCGA § 5-6-38. Since the record shows that the notice of appeal was not filed until almost three months had expired after entry of the final termination order, we lack jurisdiction to consider the appeal from the termination order and the Department’s motion to dismiss must be granted. In the Interest of A. C. J., 211 Ga. App. 865 (440 SE2d 751) (1994).

Although the appellants also filed their notice of appeal from the January 28, 1994 placement order, they have not asserted any enumeration of error concerning the placement order. Appellants argue in their appellate brief that a motion to vacate the placement order filed by the child’s maternal grandmother in the Juvenile Court after the case was docketed in this Court raises an issue regarding the validity of the placement order. “An enumeration of error cannot be enlarged at the appellate level by statements in briefs to include issues not raised in the enumerations of error. [Cit.] Therefore, this issue is not properly before this court for review.” Bohannon v. State, 208 Ga. App. 576, 580 (431 SE2d 149) (1993).

Appellants’ motions for additional time to file a supplemental brief and for an award of attorney fees and expenses of litigation against appellee are denied.

Appeal dismissed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1150.
    McLEAN et al. v. HADEN.
    (448 SE2d 69)
   Beasley, Presiding Judge.

The Northside Bank & Trust Company (“Northside”) filed a complaint against Universal Mixer Holdings, L.P., (“Universal”), Me-Lean, Searcy, Haden, and Williams. The complaint alleged that Universal executed two promissory notes to Northside in the original principal amount of $200,000 each, the notes were guaranteed by the individual defendants, Universal defaulted on the notes, and defendants failed to satisfy Northside’s demand that they pay the amount due.

Haden filed a cross-claim against McLean, Searcy, and Williams for contribution and indemnity, on the ground that Northside had exercised its right to sell shares of stock pledged by him as collateral on the loans and had applied the proceeds of the sale to the payment of amounts due.

Northside moved for summary judgment, stating that after applying proceeds from the sale of the Haden stock and other monies to reduce amounts owed under the notes, there is still an undisputed principal indebtedness of approximately $90,000 under one of the notes and unpaid interest.

McLean, Searcy, and Williams amended their answer by adding a defense in which they asserted that Haden and agents of Universal had committed fraud against them by wilfully and maliciously withholding and falsifying the true financial condition of Universal and that they relied upon this information when they signed the guaranties.

After dismissing his cross-claim against Williams without prejudice, Haden moved for summary judgment on his cross-claim against McLean and Searcy. He argued that their affidavits do not create a genuine issue of material fact and that their subsequent deposition testimony reveals that they do not have any grounds upon which to base their defense of fraud.

Northside later voluntarily dismissed this action against all defendants with prejudice. Several days later, Northside filed a motion to correct the dismissal, stating that it had intended to dismiss the action against Haden with prejudice but to dismiss the action against the other defendants without prejudice. The court granted the motion.

Haden then filed an amendment to his cross-claim to reflect that Northside had assigned the unsatisfied note and the guaranties of McLean and Searcy to him. He later moved for summary judgment on his amended cross-claim and to amend the style of the case to reflect the dismissal of portions of the action. Searcy thereafter submitted an affidavit in opposition to Haden’s motion for summary judgment. After a hearing, the court granted Haden’s motions to amend and for summary judgment.

1. In reliance upon the affidavits submitted by McLean and Searcy with their amended answer as well as Searcy’s deposition, they argue that there exist genuine issues of material fact on their defense of fraud.

In these affidavits, McLean and Searcy testified that Haden and agents of Universal had provided them with “certain information concerning the financial condition and viability of Universal” which was false and had withheld “the true financial condition and viability of Universal” from them. This does not state circumstances constituting fraud with specificity. If the charges of fraud in these affidavits had been allegations in pleadings, they would not have been stated with the particularity required by OCGA § 9-11-9 (b). Compare Hiller v. Culbreth, 139 Ga. App. 351 (2) (228 SE2d 374) (1976), and cits. As affidavits in support of allegations of fraud, they were insufficient to create genuine issues of material fact.

In his deposition, Searcy was questioned as to information concerning the financial condition and viability of Universal upon which he had relied. He testified that there were documents provided by Haden to the other partners in which it was stated that there would be between $55,000 and $60,000 in Universal’s checking account after the loans from Northside to Universal were closed and that there would be strict adherence to all loan covenants, including those pertaining to Universal’s net worth and its debt-to-worth ratio; that such statements were false, in view of the fact that there was $50,000 in outstanding debt owed by Universal which did not appear in any of the documentation; and that payment of this debt depleted Universal’s checking account within a week after closing.

As set forth in Searcy’s deposition testimony, his and McLean’s fraud defense is founded upon their being provided with documents containing fraudulent statements. They were required to either produce the documents or account for their non-production. See Butts v. Maryland Cas. Co., 52 Ga. App. 838 (2) (184 SE 774) (1936). They have done neither, even though in moving for summary judgment on his cross-claim Haden argued that their fraud defense was without evidentiary support. Under these circumstances, the trial court did not err in granting Haden’s motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. McLean and Searcy argue that Haden has no claim against them because Northside voluntarily dismissed its claim against them with prejudice.

“The voluntary dismissal here ‘with prejudice’ was plainly a mistake. It was discovered promptly and immediate action taken to have the error corrected. The defendants claim no prejudice beyond that which is experienced from a voluntary dismissal without prejudice. . . . [T]he error was a clerical mistake and its correction was proper. [Cit.]” Page v. Holiday Inns, 245 Ga. 12, 13 (262 SE2d 783) (1980).

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Decided August 15, 1994.

Kunz & Associates, Robert A. Kunz, for appellants.

Alembick, Fine & Callner, Mark E. Bergeson, for appellee.


text:
    A94A1205.
    INTERNATIONAL TELECOMMUNICATIONS EXCHANGE CORPORATION v. MCI TELECOMMUNICATIONS CORPORATION.
    (448 SE2d 71)
   Beasley, Presiding Judge.

Appellee MCI Telecommunications Corporation (MCI) sells long-distance telephone services to appellant International Telecommunications Exchange Corporation (INTEX) which in turn resells such services to providers such as Telnet Communications, Inc. (Telnet).

In this case, INTEX filed a complaint against Telnet in the State Court of DeKalb County for breach of a contract between INTEX and Telnet. INTEX seeks damages from Telnet, based on Telnet’s failure to pay for approximately $276,000 in long-distance services provided by INTEX to Telnet on the MCI network.

Telnet answered and filed a counterclaim against INTEX on grounds that INTEX had breached the parties’ contract by cancelling it because of INTEX’s termination of a contract between INTEX and MCI. In its counterclaim, Telnet claims that as a result of INTEX’s breach of contract, Telnet suffered damages consisting of lost revenue and profits because it lost numerous customers and had to cover its obligations to remaining customers by securing replacement long-distance services at greater expense.

INTEX thereafter filed a third-party complaint against MCI under OCGA § 9-11-14, alleging that any failure by INTEX to fulfill its obligations to Telnet was caused by MCI’s failure to fulfill its obligations to INTEX. INTEX sought to be indemnified by MCI for any damages it sustains as a result of Telnet’s counterclaim.

MCI answered and moved to dismiss the third-party complaint under the abatement statute, OCGA § 9-2-44 (a), as well as OCGA § 9-2-5 (a), in that INTEX had made the identical claim against MCI as a counterclaim in a prior action by MCI against INTEX then pending in the State Court of Fulton County. In INTEX’s counterclaim in MCI’s action against it, INTEX sought “direct and consequential damages” in an unspecified amount as a result of MCI’s damaging INTEX’s relationships with its customers by failing to take the steps necessary to ensure that INTEX customers were “on-line.”

The DeKalb State Court granted MCI’s motion to dismiss IN-TEX’s third-party complaint, finding that the claims asserted involve the same issues and arise out of the same transaction as the claims asserted in the Fulton State Court action. We granted INTEX’s application for interlocutory appeal.

“No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. ... If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” OCGA § 9-2-5 (a), supra. “[T]he pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.” OCGA § 9-2-44 (a), supra. Whenever a pending suit for the same cause of action has been pled, abatement is required as a matter of law. Cale v. Cale, 160 Ga. App. 434, 436 (287 SE2d 362) (1981).

INTEX is prosecuting two actions against MCI. One, the Fulton counterclaim, is a direct action for damages based upon INTEX’s loss of customers as a result of MCI’s breach of contract. The other, the DeKalb third-party complaint, is a secondary action for indemnification based upon Telnet’s loss of customers as a result of INTEX’s breach of contract. The question is whether the Fulton counterclaim and the DeKalb third-party complaint are the same cause of action.

Both instances present issues of liability and damages. If, in the Fulton action, MCI is adjudged not liable for breach of its contract with INTEX, it could not be held liable to INTEX in the DeKalb action. Thus, there is a common issue of liability in each action. If, however, MCI is adjudged liable to INTEX for breach of contract in the Fulton action, MCI would not be foreclosed from maintaining in the DeKalb action that it is not liable for damages sustained by Telnet. MCI could argue that such damages are too remote. Thus, additional liability issues may be raised in the DeKalb action. Compare Schoen v. Home Fed. Sav. &c. Assn. of Atlanta, 154 Ga. App. 68 (267 SE2d 466) (1980), where the issues in two actions were identical. Additionally, the issue of damages in each action is different, in that the loss of customers by INTEX and the loss by Telnet constitute two different sets of events occurring between different parties and at different times. See Poole v. Estfan, 206 Ga. App. 510, 511 (2) (426 SE2d 61) (1992); Burns v. Brickle, 106 Ga. App. 150 (126 SE2d 633) (1962); compare Ellis v. Kite, 107 Ga. App. 237 (129 SE2d 547) (1963); Jones v. Rich’s, Inc., 81 Ga. App. 841 (60 SE2d 402) (1950). In fact, INTEX’s claim against MCI for indemnification did not accrue and could not have been asserted until Telnet filed the instant suit against INTEX in the DeKalb State Court. See Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 181-182 (279 SE2d 477) (1981). Although there are common issues in each action, the cause of action is not the same.

In this situation, the DeKalb court does have the discretionary power to stay proceedings with respect to the third-party complaint pending adjudication of the liability issue in the Fulton action. See Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 485 (198 SE2d 144) (1973); Commercial Union Ins. Co. v. Hoover Treated Wood Products, 202 Ga. App. 35, 37 (413 SE2d 217) (1991). However, a mandatory dismissal or abatement is not authorized. The court’s grant of MCI’s motion for a dismissal, rather than a stay, is reversed.

Decided August 15, 1994.

Meadows, Ichter & Trigg, Lauren S. Antonino, R. Wade Marion-neaux, Jr., for appellant.

Sutherland, Asbill & Brennan, William D. Barwick, Patricia A. Gorham, Lisa C. Foster, for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.


text:
    A94A1275.
    BARRY v. THE STATE.
    (448 SE2d 243)
   Beasley, Presiding Judge.

Barry was convicted of six counts of cruelty to children. OCGA § 16-5-70 (a), (b). We view the evidence in the light most favorable to the verdict. It showed that Barry took her two-year-old son to an emergency room. His arm had a two- to three-week-old untreated spiral fracture. He also had an older rib fracture that had healed without treatment, burns on the back of his hands, and bruising about his head and face.

The emergency room physician testified that the broken arm would have been painful, swollen, and immobile and should have been treated immediately. He stated that Barry’s explanation of the injury was inconsistent with the age of the break and that the injury could be produced by a twisting of the arm. He also testified that the rib fracture was six to eight weeks old, would have been painful for two or three weeks afterward especially if the child were picked up under his arms, and should have been treated.

Another emergency room physician testified similarly and also discussed the burns found on the child’s hands. The burns were in a “grid” pattern and the physician stated that they could not have been caused by falling into a wall heater, as explained by Barry. This witness also testified that Barry stated she had contacted another physician who told her to put antibiotic cream on the burns, a treatment he did not consider reasonable.

A third physician, who saw the child approximately one month after the emergency room visit, made similar observations and also reported that Barry gave different explanations for the arm fracture and hand burns. It was his opinion that the explanation given for the burns would be unlikely to produce the observed injuries.

Other witnesses testified that they saw injuries on the child. One stated that when she suggested Barry take the child to a doctor Barry said she was afraid “they would report her.” Another witness reported seeing Barry pull the child to his feet by his arm. The testimony of a former boyfriend of Barry’s, given at another proceeding, was introduced. He testified that when the child was taken to the hospital, Barry originally wanted to go to a different facility and was concerned about a report to the Department of Family & Children Services. The child had previously visited the hospital where the primary examination was done.

1. Barry contends that the court erred in allowing evidence of similar transactions without making specific findings on the record that the requirements of USCR 31.3 (B) had been met, as required by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). Williams requires the State to establish: 1) it seeks to introduce the evidence of similar transactions for an appropriate purpose; 2) there is sufficient evidence that the accused committed the acts; and 3) there is sufficient similarity between the acts so that proof of the former tends to prove the latter. Id. at 642 (2) (b). The court must make a determination that each of the three showings has been made, and this determination must be made a part of the record. Id. at 642 (2) (b), n. 3.

Barry does not contend that the State failed to establish any one of the three prerequisites, and the record reflects that all were addressed at the hearing. Rather, Barry contends that the court did not make a sufficient determination on the record that each part of the Williams test had been met. At the conclusion of the hearing on the admissibility of the similar transaction evidence, the State asked the court if it wished to make a finding on the record, to which the court responded: “Well, I think the Court of Appeals will be able to take note of the fact that I have, in fact, made a finding as to the three prongs.” Without citing authority, Barry states that this is insufficient to establish the court’s determination as part of the record.

The court’s determination was sufficiently placed on the record. The elements required by Williams were addressed at the hearing, a question was addressed to the court about the three-part test, although Williams was not mentioned by name, and the court responded in a way that made it clear on the record that it was satisfied that the test had been met.

Additionally, had the court’s perfection of the record been deficient, Barry waived her right to appeal any error by failing to object to the admission of the evidence at trial. See Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694) (1993).

2. Barry contends it was error for the court to allow a transcript of the testimony of a witness to be read to the jury in lieu of live testimony. The witness was a former boyfriend who had lived with Barry and had testified at a prior juvenile deprivation hearing. OCGA § 24-3-10 allows such evidence when the witness is inaccessible. Barry contends that the State was not properly diligent in its search for the witness and therefore did not lay a foundation of inaccessibility.

The determination that a party’s search for a witness is sufficiently diligent “is left to the sound discretion of the trial court, and its judgment will not be disturbed on appeal absent abuse. [Cits.]” Johnson v. State, 197 Ga. App. 384, 385 (1) (398 SE2d 432) (1990).

In this case the investigating officer testified that after the deprivation hearing he went to the witness’ apartment twice, did not find him, and learned that he had moved. He asked an acquaintance of the witness to contact him if she saw the witness and later contacted her but she had not seen the witness. Based on all his inquiries, he did not believe the witness was in Georgia. The assistant district attorney also testified that a subpoena was sent to the record address and that, after a conversation with a person at Barry’s residence, she secured a certificate of need and twice attempted service of the witness in Alabama. The court did not abuse its discretion in determining the State’s efforts to be diligent and the witness to be inaccessible. See Washington v. State, 253 Ga. 173, 174 (4) (318 SE2d 55) (1984).

3. Barry contends the court erred in refusing to charge the jury that in order to find her guilty of maliciously failing to seek medical care for her son, she had to have actual knowledge of specific injuries requiring care. Three allegations in the indictment accused her of maliciously failing to seek medical care for her son, OCGA § 16-5-70 (b), and three accused her of maliciously causing her son pain by force, OCGA § 16-5-70 (a).

Barry’s requested charge referred to “maliciously” failing to seek medical attention, but the cases she cited to support the charge refer to “wilfully depriving a child of necessary sustenance” as one of the bases under OCGA § 16-5-70 for finding a defendant guilty, along with maliciously causing pain. Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25) (1990); Lewis v. State, 191 Ga. App. 287, 288 (1) (381 SE2d 558) (1989). Lewis does contain some language from which an inference could be made that “malice” requires actual knowledge, but the case is not precedential. Additionally, a more accurate analysis of Lewis is that actual knowledge of the injury in that case tended to show malice, but it was not a necessary element of that state of mind. Rigenstrup does not address actual knowledge of an injury and clearly does not require it as a necessary element of malice.

Barry points to no other authority for a requirement that actual knowledge of an injury is a required element of malice under OCGA § 16-5-70, and we find none. “A request to charge itself must be correct, legal, apt, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” Smith v. State, 209 Ga. App. 540, 544 (5) (433 SE2d 694) (1993). The jury was charged on the meaning of malice.

Decided August 15, 1994.

4. Finally, Barry contends the evidence was insufficient to support the verdict. The evidence, though circumstantial, was such that rational jurors could have found appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1290.
    WILLIAMS v. THE STATE.
    (447 SE2d 714)
   Pope, Chief Judge.

Defendant was convicted by a jury of three counts of armed robbery, three counts of possession of a firearm during the commission of certain felonies, one count of giving a false name, and one count of carrying a concealed weapon. Following the denial of his motion for a new trial, defendant appeals his conviction and life sentence.

At 2:30 a.m. on December 15, 1992, two men with a gun robbed a Huddle House restaurant. A restaurant employee said he had a good opportunity to look at both robbers and identified defendant as one of them. The same night at 4:00 a.m., two men with a gun robbed a convenience store, taking a cash drawer and the clerk’s purse. The convenience store clerk was also able to get a good look at the robbers, and she identified defendant as the man who held a gun in her face. On January 14, 1993, a bank was robbed by a lone armed man. The teller testified that the robber was with her for approximately 15 minutes and that she had plenty of opportunity to see him. She also identified defendant as the armed robber.

1. In two enumerations of error, defendant contends the trial court should have granted his amended motion for new trial based on ineffective assistance of counsel. Specifically, defendant points to his trial counsel’s failure to reserve objections to the trial court’s charge, and argues this failure was harmful because the trial court erroneously omitted from its charge on possession of a firearm the requirement that the firearm be on the defendant’s person or within his arm’s reach. See OCGA § 16-11-106 (b). We first note that defendant’s amended motion for new trial is not in the record on appeal: although defendant stated in his brief that he would supplement the record with a copy of it, he did not do so. In any case, we conclude the trial court’s instruction on possession of a firearm during the commission of certain felonies was not erroneous given the evidence in this case. With respect to each of the armed robberies, the undisputed evidence was that one of the robbers was holding a firearm; and contrary to defendant’s suggestion, defendant may properly be convicted of this offense as a party or aider or abettor. See Victrum v. State, 203 Ga. App. 377, 379-380 (3) (416 SE2d 740) (1992). Thus, whether or not the firearm was on someone’s person or within their arm’s reach was not an issue under the evidence presented, and the trial court did not err in failing to mention it in the charge.

2. Defendant further asserts that the trial court should not have allowed the prosecutor to refer to the co-defendant’s earlier trial in his closing argument. Even though this brief passing reference did not indicate that the co-defendant was convicted, defendant asks us to infer that the jurors assumed the co-defendant was convicted, and that defendant should thus also be convicted. However, victims in all three of the armed robberies identified defendant as the perpetrator or one of the perpetrators, both at trial and in pre-trial photo lineups. Accordingly, we conclude that any error with respect to the prosecutor’s closing argument was harmless.

3. Because defense counsel was able to elicit from the bank teller some expression of uncertainty as to her in-court identification, defendant argues the evidence was insufficient to support his conviction of the armed robbery and possession of a firearm charges with respect to the January robbery of the bank. “Where a witness’ positive testimony is coupled with testimony exhibiting some degree of doubt as to its certainty, it does not necessarily impeach the positive testimony but rather leaves resolution to the fact finder. [Cits.]” Dimick v. State, 178 Ga. App. 60, 62 (1) (341 SE2d 914) (1986). Thus, viewed in a light favorable to the verdict, the evidence was sufficient to enable rational jurors to find defendant guilty beyond a reasonable doubt of robbing the bank and possessing a firearm in doing so. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Lastly, defendant contends his life sentences for armed robbery violate the mandate of OCGA § 17-10-1 that sentences be for a determinate period. We have already rejected this argument, holding that OCGA § 17-10-1 authorizes the trial judge to impose any sentence within the minimum and maximum prescribed by law as punishment for the crime. See Jefferson v. State, 209 Ga. App. 859, 862-863 (2) (434 SE2d 814) (1993). As a life sentence is within the range of punishment prescribed for armed robbery under OCGA § 16-8-41 (b), the trial court did not err in imposing it in this case.

Decided August 15, 1994.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1429.
    WILLIAMS v. THE STATE.
    (447 SE2d 716)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated child molestation and statutory rape. Defendant filed a motion for new trial, claiming (in pertinent part) that the trial court erred in admitting his custodial statement that he and the 13-year-old victim entered into consensual sexual intercourse. The evidence adduced at a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), reveals the following:

During the afternoon of August 7, 1991, Agent Dean McManus of the Georgia Bureau of Investigation and Investigator Grady Toney of the Laurens County Sheriff’s Department executed three arrest warrants charging defendant with aggravated sodomy, aggravated child molestation and rape. Agent McManus and Investigator Toney transported defendant to the Laurens County Sheriff’s Department and placed him in a holding cell. Less than 15 minutes later, defendant was moved to an office (without restraint) and appeared before Agent McManus, Investigator Toney and “Lisa Wicker with the Department of Family and Children Service.” Defendant was then given an opportunity to examine the arrest warrants and Agent McManus read a form entitled, “WAIVER CERTIFICATE,” advising defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), and asking defendant whether, “understanding these rights and having these rights in mind[,] he’s willing to talk about the charges of rape, aggravated sodomy, and aggravated child molestation.” Defendant then affirmed that he could “read and write” and Agent McManus gave defendant “a chance to read ...” the “WAIVER CERTIFICATE” Defendant did not “say whether ... he had any questions concerning what [the form] meant.” He just signed the “WAIVER CERTIFICATE,” and returned it to Agent McManus.

Within five minutes after executing the “WAIVER CERTIFICATE,” Investigator Toney showed defendant a form entitled, “Statement of Miranda Rights.” This form consisted of an enumeration of Miranda rights and a section entitled, “Waiver of Rights.” The “Waiver of Rights” section provides as follows: “I have read the above statement of my rights and I understand each of those rights, and having these rights in mind I waive them and willingly make a statement.” Defendant executed this form and then “asked [Agent McManus] if he needed a lawyer present. [Agent McManus] advised [defendant that] if he wanted a lawyer present, we would get him one, and [defendant] advised [Agent McManus that] he did not think he needed one at the time.” Lisa Wicker then left the interview and Agent McManus began the interrogation.

This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends he did not enter into a knowing, voluntary and intelligent waiver of his rights, arguing that “[t]he combination of [defendant] with his fifth grade education relying on the Officers to tell him whether or not he needed [an] attorney plus his . . . misunderstanding of the charges amounts to a denial of due process.” Defendant also reasons that allegations (in the arrest warrants) charging him with sexual activity “against [the victim’s] wishes,” “without her consent,” via “use [of] force” and “against her will” duped him into believing that the victim’s consent was a valid defense to the crimes charged in the criminal warrants and admitting that he had consensual sexual intercourse with the victim. This enumeration is without merit.

A suspect’s failure to appreciate incriminating elements in a statement has little bearing on the knowing, intelligent and voluntary nature of the suspect’s waiver of the right to remain silent and the right to an attorney. See Peebles v. State, 196 Ga. App. 176, 177 (1a) (395 SE2d 640). Further, an interrogating officer has no duty (or authority) to advise a suspect of the consequences of a particular admission; nor does the officer have an obligation under Miranda v. Arizona, 384 U. S. 436, supra, to advise a suspect against custodial interrogation without a lawyer. See Gaines v. State, 179 Ga. App. 623 (1), 624 (347 SE2d 673). It is sufficient that an interrogating law enforcement officer fully advise a suspect of the specific rights and options prescribed in Miranda v. Arizona, 384 U. S. 436, supra, before questioning, allowing the suspect the right to independently select the options prescribed therein without coercion, trickery or device of any kind. In the case sub judice, Agent McManus testified that he fully and fairly advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436, supra; that defendant gave every indication of having a full comprehension and understanding of those rights; that defendant was not subjected to anything which induced him to give up his rights and that defendant voluntarily executed forms waiving his rights under Miranda v. Arizona, 384 U. S. 436, supra. This testimony and other evidence adduced at the Jackson v. Denno hearing authorized the trial court’s finding that defendant entered into a knowing, voluntary and intelligent waiver of his rights under Miranda v. Arizona, 384 U. S. 436, supra. The trial court did not abuse its discretion in allowing evidence of defendant’s custodial statement. See Baird v. State, 198 Ga. App. 791 (402 SE2d 802).

Decided August 15, 1994.

Morris S. Robertson, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       Defendant initially denied any sexual encounter with the victim, but later stated that he provided his 13-year-old daughter and the 13-year-old victim with liquor; that the victim made sexual advances upon him after his daughter passed out (apparently the result of alcohol consumption); that the victim then followed him to a bedroom and that he and the victim engaged in consensual sexual intercourse. Defendant denied that he sodomized the victim.


text:
    A94A1437.
    FREEMAN v. THE STATE.
    (448 SE2d 465)
   Andrews, Judge.

John B. Freeman was indicted for the malice murder of his wife, Gail Elaine Freeman. A jury found him guilty of the lesser included offense of voluntary manslaughter.

The State presented evidence that in the course of a domestic dispute between Freeman and his wife, in which both parties were armed with knives, Freeman overpowered and disarmed his wife, then fatally stabbed her. Freeman, who suffered stab wounds inflicted by his wife during the dispute, claimed he did not stab his wife and that the fatal wound was accidental.

1. In his first three enumerations of error, Freeman claims the trial court erroneously allowed the jury to consider matters relating to sentencing by charging the jury that he could receive misdemeanor punishment of twelve months confinement for the lesser included offense of involuntary manslaughter and that the trial court’s charge on the offense of involuntary manslaughter improperly reduced the gravity of that offense. Implicit in Freeman’s argument is the assumption that the jury returned a verdict of voluntary manslaughter because it believed the punishment for that offense was more severe than the punishment for involuntary manslaughter and the jury chose to inflict a more severe punishment.

After instructing the jury on the lesser included offense of voluntary manslaughter, the trial court also instructed the jury that they could consider involuntary manslaughter as a lesser included offense of malice murder. In giving its charge, the court informed the jury that Freeman could be found guilty of involuntary manslaughter if they found he unintentionally caused his wife’s death by the commission of a misdemeanor. The trial court informed the jury that this grade of involuntary manslaughter was a felony offense. See OCGA § 16-5-3 (a). In connection with its charge on involuntary manslaughter, the trial court also defined a misdemeanor as an offense which carries a penalty of up to 12 months and stated that simple battery, such as unlawful touching or striking of another person, and simple assault, would fall into the category of misdemeanors.

Contrary to Freeman’s contention, the trial court did not instruct the jury that he would be punished for a misdemeanor if convicted of involuntary manslaughter. Rather, the trial court told the jury that involuntary manslaughter was a felony offense. The instruction on misdemeanor punishment was not related to any punishment Freeman might receive upon conviction for involuntary manslaughter but was included as part of the trial court’s definition of misdemeanor as the type of “unlawful act other than a felony” set forth as an element of involuntary manslaughter under OCGA § 16-5-3 (a).

Although Freeman does not raise the point, the trial court should not have characterized the offense of involuntary manslaughter as a felony, a matter related to punishment. See Johnson v. State, 261 Ga. 236, 239 (404 SE2d 108) (1991); Cater v. State, 176 Ga. App. 388 (336 SE2d 314) (1985). Even though the charge defining a misdemeanor was not related to a punishment which Freeman could have received, it served no proper purpose to inform the jury of the punishment for a misdemeanor.

Nevertheless, any such error was harmless in this case. Even if the evidence had supported the trial court’s charge on the lesser included offense of involuntary manslaughter, nothing in the charge instructed the jury as to possible sentences which could have been imposed on Freeman or influenced the jury to consider sentencing matters in reaching a verdict. Fletcher v. State, 197 Ga. App. 112, 113 (397 SE2d 605) (1990); compare Green v. State, 206 Ga. App. 539, 541-544 (426 SE2d 65) (1992). “There is nothing in the record to demonstrate that the jury’s verdict of guilty was impermissibly based on a consideration of punishment rather than on a consideration of the elements of the offense of [voluntary manslaughter].” Cater, supra at 389.

Moreover, even if the trial court’s charge discouraged the jury from reaching a verdict of guilty of involuntary manslaughter, as Freeman contends, he could not have been harmed because the jury should not have been allowed to consider this offense. The evidence showed that Freeman’s wife was stabbed to death with a knife, a deadly weapon. Any unlawful action taken by Freeman which caused her death could only have been an aggravated assault, a felony, not a misdemeanor such as simple battery. Thus, Freeman was not entitled to a charge on involuntary manslaughter allowing the jury to consider whether he unintentionally caused his wife’s death by the commission of a misdemeanor. Lolley v. State, 259 Ga. 605, 607 (385 SE2d 285) (1989).

2. Prior to trial, the State gave notice of its intention to introduce evidence showing prior difficulties between Freeman and the victim. Evidence of prior difficulties between the accused and the victim is subject to the same rules governing the admission of similar crimes. Stewart v. State, 263 Ga. 843, 844 (440 SE2d 452) (1994); Bohannon v. State, 208 Ga. App. 576, 579 (431 SE2d 149) (1993). “Before evidence of prior difficulties or quarrels, even those occurring recently, may be presented at trial, the trial court must conduct a hearing pursuant to USCR 31.3 (B), and determine, as to each prior difficulty, that (1) there is sufficient evidence that the prior difficulty occurred; (2) that the evidence is offered for an appropriate purpose; and (3) that there is a sufficient probative connection between the crime charged and the prior difficulty to justify admission of the prior difficulty into evidence.” Stewart, supra at 844-845. The trial court conducted the requisite hearing prior to the trial, ruled that two prior acts were admissible, and the State introduced evidence that Freeman had assaulted his wife in domestic disputes on two previous occasions, one occurring about six months prior and the other a few days prior, to the fatal assault.

In his fourth enumeration of error, Freeman claims that, in charging the jury after the close of evidence in the case, the trial court failed to properly instruct the jury as to the limited scope for which the prior difficulties’ evidence could be considered. Contrary to Freeman’s contention, the trial court gave a limiting instruction as to such evidence during the trial. We find the trial court’s instructions were sufficient to inform the jury as to the purpose of the evidence. Moreover, in the absence of any request for a limiting instruction, there was no error. Thomas v. State, 199 Ga. App. 49, 50-51 (404 SE2d 315) (1991).

In his fifth and sixth enumerations of error, Freeman contends the trial court failed to make all the specific determinations necessary for admission of the prior difficulties’ evidence and that the State failed to show a proper purpose for admission of the prior acts. Even if the trial court did not specifically determine on the record that each of the requirements under USCR 31 was satisfied, “we find no harmful error [because] the evidence presented by the State at the [pre-trial] hearing was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements . . . had been satisfied.” (Citations and punctuation omitted.) Morales v. State, 210 Ga. App. 414, 416 (436 SE2d 528) (1993). There was evidence sufficient to show: (1) the prior acts of domestic violence which occurred between Freeman and the victim; (2) that the prior acts were offered to demonstrate that the crime charged was not committed accidentally, as Freeman contended, and (3) that there was a sufficient connection or similarity between the prior acts and the charged crime, so that proof of the former tended to prove the latter. Barrett v. State, 263 Ga. 533, 534-535 (436 SE2d 480) (1993); Bohannon, supra at 579-580.

Decided August 15, 1994.

Richard A. Grossman, for appellant.

Lewis R. Slaton, District Attorney, Henry Newkirk, Barry I. Mortge, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.