text:
    A91A1579, A91A1580.
    WHITE HOUSE, INC. v. WINKLER; and vice versa.
    (415 SE2d 185)
   Cooper, Judge.

Marvin Winkler (“Winkler”), a California resident, is an officer and shareholder of a California corporation, American Marketing Works, Inc. (“American”). American purchases T-shirts and other apparel for retail sale on a nationwide basis. This suit was brought by The White House, Inc. (“White House”), a Georgia T-shirt manufacturer, for monies owed as a result of an unpaid purchase order. White House alleges that when the purchase order at issue was submitted to White House, Winkler was advised that the order would not be accepted unless Winkler and his wife executed personal guaranties. White House contends that Winkler agreed to provide both guaranties, however requested that production begin prior to executing the guaranties since Winkler had already contracted to sell the T-shirts. According to White House, Winkler said that he had to have the goods immediately; that White House should not worry; and that Winkler would absolutely make sure that White House got paid. Thereafter, White House began production of the T-shirts and incurred out-of-pocket expenses of approximately $346,000. The purchase order was not paid; Winkler and his wife refused to execute the guaranties; and White House filed suit against American and Winkler, personally. American subsequently filed for bankruptcy, and the trial court issued an order administratively terminating the case against American, yet allowing the case to proceed against Winkler. Winkler filed a motion to dismiss for failure to state a claim upon which relief could be granted and for lack of personal jurisdiction. To support his motion, Winkler submitted his own affidavit and in response, White House submitted the affidavit of its president. The trial court denied Winkler’s motion to dismiss for lack of personal jurisdiction but dismissed the case for White House’s failure to state a claim upon which relief could be granted. In the main case, Case No. A91A1579, White House appeals the grant of the motion to dismiss, and in Case No. A91A1580, Winkler’s cross-appeal, he challenges the court’s denial of the motion to dismiss on the jurisdictional ground. We address the cross-appeal first.

Case No. A91A1580

In his affidavit, Winkler stated that he has always been a resident of California; that he has never been a resident of nor has he evei visited Georgia; that he has never transacted business or personally solicited business in Georgia; that he owns no property in Georgia and that his only contact with White House with regard to the instanl allegations was one telephone conversation with the president d White House and the receipt by mail of correspondence from the president, to which Winkler never responded. The affidavit submittec by White House stated that White House has done business wit! American since 1986 and has often dealt directly with Winkler acting on behalf of American; that Winkler represented to White House tha1 he was Chairman of the Board and President of American and that he and his wife together had a controlling shareholder interest in American; and that the purchase order and subsequent transaction were completely unsolicited by White House but were initiated solely by Winkler. As these affidavits create, on their faces, factual issues, the trial court properly held a hearing on the motion to dismiss for lack oi personal jurisdiction to resolve the factual disputes and legal questions presented. “[Jurisdiction is a question for the court. [Cit.]’ Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989).

“Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: T) Transacts any business within this State. . . .’ This has been interpreted tc mean that ‘purposeful acts’ must have been performed by the defendant to tie it to the State. . . .” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) (1989) See OCGA § 9-10-91 (1). “ ‘ “Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented tc suit there, . . . the defendant (must have) ‘purposefully directed’ his activities at residents of the forum, (cit.), and the litigation (must result) from alleged injuries that ‘arise out of or relate to’ those activities. (Cit.)” (Cit.)’ [Cit.] ‘(T)he constitutional touchstone (is) whethei the defendant purposefully established “minimum contacts” in the forum State . . . “(that is, whether) the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (Cit.)’ [Cit.]” Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 435 (396 SE2d 54) (1990). “ ‘[M]ere telephone or mail contact with an out-of-state defendant... is insufficient to establish the purposeful activity with Georgia required by the “Long Arm” statute. (Cit.)’ [Cit.]” Mayacamas Corp., supra a1 893. Also, “ ‘[a]n individual’s contract with an out-of-state party alone (cannot) automatically establish sufficient minimum contacts. . . . [Cits.]’ ‘(P)rior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actúa course of dealing . . . must be evaluated in determining whether the defendant has purposefully established minimum contacts within the forum.’ [Cit.]” Tillis, supra at 435.

The trial court found that Winkler’s contact with White House was not initiated solely by White House; that Winkler and White House entered into bilateral negotiations designed to “work out” a deal for the purchase of the goods; that Winkler and White House negotiated over the terms of payment, specifically the issue of a personal guaranty from Winkler; that Winkler’s conduct was much more than unilateral mail or telephone contacts; that Winkler actively participated in dealings with White House such that his actions were purposeful; that Winkler created continuing obligations between himself and White House; that Winkler, who was president and principal shareholder of American, made promises that induced White House to commence manufacturing the products; and that requiring Winkler to appear in Georgia would not offend traditional notions of fair play and substantial justice. We find ample evidence in the record to support the trial court’s findings and conclusions. See Terrell, supra; Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189 (1) (270 SE2d 362) (1980). We conclude, as did the trial court, that Winkler was far from being a passive party, compare Tillis, supra at 436, but instead knowingly and “purposefully did an act or acts and consummated a transaction or transactions within the state, so as to establish legally sufficient contacts.” Georgia R. Bank &c. Co. v. Barton, 169 Ga. App. 821, 824 (315 SE2d 17) (1984). Given Winkler’s consistent and purposeful personal dealings with the Georgia corporation, dealings which bestowed substantial benefits to Winkler and induced substantial action by White House to its detriment, “neither reasonableness nor fair play nor substantial justice would be offended” by haling Winkler into a Georgia court and exercising jurisdiction over him. See Barton, supra; compare Tillis, supra. The trial court did not err in denying Winkler’s motion to dismiss for lack of personal jurisdiction.

Case No. A91A1579

In the main appeal, White House asserts that the trial court erred in granting Winkler’s motion to dismiss for failure to state a claim, citing the court’s failure to find that White House stated claims for breach of contract, promissory estoppel and fraud. Without making a determination on the promissory estoppel and fraud claims, the trial court determined with regard to the breach of contract claim, that White House did not present evidence of an original undertaking of Winkler but instead showed evidence of an oral collateral promise that was proscribed by the statute of frauds. See OCGA § 13-5-30. At the outset, we note that, despite the trial court’s statement that it was considering a motion to dismiss, the motion was supplemented by affidavits of the parties and matters outside the pleadings and was therefore converted into a motion for summary judgment. OCGA § 9-11-12 (b). Thus, Winkler’s “burden upon a motion for summary judgment was to make an affirmative showing that there was no genuine issue as to any material fact and that [he] was entitled to judgment as a matter of law. [Cit.]” Davidson v. American Fitness Centers, 171 Ga. App. 691, 693 (2) (320 SE2d 824) (1984). “ ‘The cardinal rule of the summary (judgment) procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. (Cit.)’ [Cit.] ‘ “(T)he party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” ’ [Cit.]” Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). The affidavits submitted by the parties first reveal that there is a material issue of fact to be resolved by a jury. Winkler states in his affidavit that he never agreed to provide a personal guaranty to anyone at White House, whereas the affidavit of White House’s president states that Winkler did agree to give the personal guaranties of himself and his wife, as well as personally assuring that White House would get paid. The true nature of the communication that occurred between the parties is a question for the factfinder. Nevertheless, our analysis does not end with this factual issue. We must further determine, and Winkler’s motion for summary judgment depends upon, whether, assuming the existence of the alleged promise of Winkler, any issues exist with respect to any of White House’s three theories of recovery. If any such issues do exist, Winkler’s motion should have been denied.

As to White House’s breach of contract theory, the statute of frauds does not apply to “an original undertaking whereby a new promisor, for a valuable consideration between him and the promisee, substitutes himself as the party who is to perform, thus causing the original promisor to be released from the contract.” Donald H. Gordon Co. v. Carswell, 184 Ga. App. 701, 706-707 (362 SE2d 483) (1987). However, we agree with the trial court that all the evidence presented by White House in the record does not support the conclusion that the alleged promise by Winkler was an original undertaking such that American was released from liability and White House looked only to Winkler for payment. “It is true that statements such as ‘I’ll see that he gets paid’ and words to that effect [cit.] are ordinarily indicative of an original undertaking, but the question is one of intent and whether the parties meant for the promisor to stand in the place of the third party. Here there is nothing to show that the agreement contemplated that [Winkler] would be primarily liable to [White House].” Lewis v. Dan Vaden Chevrolet, 142 Ga. App. 725, 729 (236 SE2d 866) (1977). There is no evidence that Winkler made a statement that he would be personally responsible for the bill, that he personally would pay the bill or that the bill would be paid out of his personal funds. “[T]he agreement was that [Winkler] was ‘guaranteeing’ the payment, not assuming the obligation as an original undertaking.” Id. Thus, White House has not presented sufficient evidence to create an issue for recovery based upon an original undertaking of Winkler.

However, White House also raised before the trial court its argument that the statute of frauds is inapplicable because White House has partially performed the contract such that it would work a fraud of Winkler if performance were not compelled by the court. OCGA § 13-5-31. “Partial performance which will vitiate the statute of frauds must be ‘substantial and essential to the contract and which results in a benefit to one party and a detriment to the other.’ [Cits.]” (Punctuation omitted.) Zappa v. Basden, 188 Ga. App. 472, 476 (373 SE2d 246) (1988). White House alleges that Winkler agreed to guaranty payment in return for White House’s acceptance of the purchase order and White House’s agreement to commence production. Winkler benefitted by White House’s acceptance of the purchase order because Winkler had allegedly already contracted to sell the goods to another party. White House commenced production pursuant to its agreement with Winkler resulting in substantial monetary detriment to White House. “ ‘It is a question for the jury as to whether there was part performance when the evidence tends to prove such performance. [Cits.]’ [Cit.]” Smith v. Cox, 247 Ga. 563, 565 (277 SE2d 512) (1981). We conclude that the issue of part performance in the instant case is one for the jury.

White House also has produced sufficient evidence to create issues of fact for the jury on the questions of promissory estoppel and fraud. “ ‘A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ OCGA § 13-3-44 (a).” Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986). “ ‘ “While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, the defendant knows that the future event will not take place.” (Cits.)’ [Cit.]” Hines v. Good Housekeeping Shop, 161 Ga. App. 318 (3) (291 SE2d 238) (1982). As this case presents several issues for the jury, the trial court, erred in dismissing the complaint, and in effect, granting summary judgment to Winkler.

Judgment reversed in Case No. A91A1579. Judgment affirmed in Case No. A91A1580.

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

Decided January 28, 1992.

Gingold, Kaufman & Chaiken, Robert J. Kaufman, Fredric Chaiken, for appellant.

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1632.
    WHITNER v. THE STATE.
    (415 SE2d 52)
   Birdsong, Presiding Judge.

This is the second appearance of this case before this court. See Whitner v. State, 198 Ga. App. 300 (401 SE2d 318) for the procedural history and underlying facts.

Upon remand to consider Whitner’s allegation that he had been deprived of the effective assistance of counsel, the trial court held an evidentiary hearing on Whitner’s allegation, and subsequently found that the original “trial counsel’s performance was not deficient. Trial counsel was functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Accordingly, the trial court found that Whitner’s claim lacked merit and dismissed his claim of ineffective assistance of counsel. Whitner appeals from that decision. Held:

Whitner’s claim that' his counsel was ineffective is grounded upon his original trial defense counsel’s decision not to challenge the admissibility of DNA test evidence even though his trial was conducted before our Supreme Court’s decision in Caldwell v. State, 260 Ga. 278 (393 SE2d 436). In our first opinion in this appeal, we noted that although Caldwell v. State held DNA test evidence to be sufficiently scientifically reliable to be admitted into evidence, that opinion also found the protocols used by the testing laboratory in this case may be subject to criticism on several grounds. 198 Ga. App. at 302. At the evidentiary hearing following remand, however, the DNA test evidence was not shown to be inadmissible under any of the grounds upon which Caldwell found the protocols might be subject to criticism.

There are two components to a claim for ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance. Both components must be! shown before we can find that the conviction resulted from a break-1 down in the adversary process that renders the result unreliable.” (Ci-J tation and punctuation omitted.) French v. State, 261 Ga. 424 (405¡ SE2d 35). Accordingly, Whitner has only established that his counsel! did not challenge the DNA test evidence. Since he did not establish! that the DNA test evidence was inadmissible, he has not established that his original trial defense counsel’s performance was deficient.

Decided January 29, 1992.

A. Beth Ramshaw, Caleb B. Banks, for appellant.

Robert F. Mumford, District Attorney, for appellee.

Further, Whitner has also not established that he was prejudiced by his original counsel’s conduct. To prove that he was prejudiced, he must show that there is a reasonable probability that the result of the proceedings would have been different if the DNA test evidence would have been excluded. In that regard, the trial court’s order dismissing this claim summarized the evidence against Whitner apart from the DNA test evidence: “Briefly, the evidence against the defendant was that head hairs from a cap found at the scene had the same microscopic characteristics as the defendant’s hair. Pubic hairs found on the carpet at the scene had the same microscopic characteristics as the defendant’s hair. Pubic hairs found in the combings in the rape kit had the same microscopic characteristics as the defendant’s hair. Pubic hair from the victim’s nightgown had the same microscopic characteristics as the defendant’s hair. Bloody fingerprints found on the trunk of a car at the scene matched the defendant’s fingerprints, according to two witnesses. One of the victims had been locked in that car trunk, and the assailant handled the car trunk on two occasions during the course of the attack. While the victims could not identify their assailant, the defendant matched the description they had given, including the presence of a facial scar.” With this evidence, we cannot conclude that there was any reasonable probability that the result in Whitner’s trial would have been any different if the DNA test evidence had been excluded.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Harris v. State, 198 Ga. App. 503 (402 SE2d 62). Accordingly, as there is evidence supporting the trial court’s finding, the trial court did not err by concluding that Whitner failed to establish that he was denied the effective assistance of counsel within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A91A1948, A91A1949.
    CRENSHAW v. GEORGIA UNDERWRITING ASSOCIATION; and vice versa.
    (414 SE2d 915)
   Andrews, Judge.

In 1983 Crenshaw brought this action against Georgia Underwriting Association for damages arising from a refusal to pay a claim on an insurance policy. Crenshaw’s action was dismissed without prejudice in 1989 on grounds that no order had been taken in the case for a period of five years. See OCGA §§ 9-2-60 (b); 9-11-41 (e). Crenshaw’s appeal from the dismissal of this action is Case No. A91A1948. Georgia Underwriting moved to dismiss Crenshaw’s appeal on grounds that he failed to pay costs in the trial court, and that such failure caused an unreasonable and inexcusable delay in the transmission of the record to this Court. See OCGA § 5-6-48 (c). In Case No. A91A1949, Georgia Underwriting appeals from the trial court’s denial of its motion to dismiss Crenshaw’s appeal.

1. We first address the appeal in Case No. A91A1949. OCGA § 5-6-48 (c) provides in part that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs.” Crenshaw’s notice of appeal was filed on August 4, 1989. On October 19, 1989, the clerk of the trial court sent a letter by certified mail to Crenshaw’s attorney giving notice of the costs for preparing the record on appeal. The affidavit of the clerk, which accompanied Georgia Underwriting’s motion to dismiss the appeal, established that the certified letter was sent to the most recent address utilized by Crenshaw’s counsel on pleadings filed in the case; that the mailing was stamped with adequate postage; that it was mailed through the United States Post Office; and, that the letter was subsequently returned to the clerk on or about November 21, 1989, marked unclaimed with an attached claim check form showing first notice on 10/21/89, second notice on 10/26/89 and return on 11/6/89.

A rebuttable presumption is created that a letter has been received through the mail when the evidence reflects that “the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.” (Punctuation and citations omitted.) Edmondson v. Air Svc. Co., 123 Ga. App. 263 (180 SE2d 589) (1971) (applying rebuttable presumption to certified letter returned unclaimed). The rebuttable presumption that mailed notice was received has been applied to attorney fees notices under OCGA § 13-1-11 which like OCGA § 5-6-48 (c) requires that action be taken only after actual receipt of the required notice. Sullivan Enterprises v. Stockton, 118 Ga. App. 542 (164 SE2d 336) (1968).

The clerk’s affidavit was sufficient evidence to establish the elements necessary to create a rebuttable presumption that the letter was delivered to plaintiff’s counsel, and to create a duty to show it was not wilfully refused. See Edmondson, supra at 264. A refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice. Compare OCGA § 13-1-11 (a) (3) (refusal to accept delivery of notice to collect attorney fees equivalent to notice); OCGA § 11-1-201 (26) (notice deemed received under U.C.C. when delivered to place held out as the address for receipt of such communications). Since the record is devoid of any rebuttal evidence produced by the plaintiff, the presumption stands that plaintiff’s counsel received the certified letter. Compare Vines v. Citizens Trust Bank, 146 Ga. App. 845, 847-848 (247 SE2d 528) (1978) (deposition testimony of plaintiff that he did not receive letter rebutted presumption and created an issue of fact).

Georgia Underwriting moved for dismissal of the appeal pursuant to OCGA § 5-6-48 on August 15, 1990, and served Crenshaw directly with the motion. In September 1990, new counsel entered the case on behalf of Crenshaw, and in responses to the motion indicated that Crenshaw had paid the costs in August 1990. after the motion to dismiss was filed, but some ten months after the certified letter on costs was mailed to previous counsel. The trial court denied the motion to dismiss the appeal on March 20, 1991.

“A delay of over 30 days is prima facie unreasonable and inexcusable.” Hatfield v. Great Am. Mgmt. & Investment, 190 Ga. App. 534, 535 (379 SE2d 544) (1989). There is no indication in the record that the trial court conducted a hearing or otherwise considered evidence to make a determination as to whether under the circumstances the delay was unreasonable and, if so, whether it was inexcusable. Georgia Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990). The trial court simply denied the motion to dismiss without elaboration. In determining whether the delay was unreasonable and inexcusable the trial court exercises a legal discretion subject to appellate scrutiny only for abuse. Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976); City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493) (1988). In the absence of findings on these issues, this court is unable to determine whether the trial court properly exercised its discretion. Therefore, Case No. A91A1949 is reversed and remanded with instructions that findings be made on these issues. See Patillo, supra.

2. In view of our holding in Case No. A91A1949, the appeal in Case No. A91A1948 is premature and must be dismissed. If on remand of Case No. A91A1949 the trial court determines that the appeal should be allowed, Crenshaw shall have 30 days to appeal the issues raised in Case No. A91A1948.

Judgment reversed and remanded in Case No. A91A1949. Appeal dismissed in Case No. A91A1948.

Sognier, C. J., Birdsong, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman, concur. Beasley, J. concurs in the judgment only. McMurray, P. J., and Carley, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

As I would affirm in Case No. A91A1949 and reverse in Case No. A91A1948, I respectfully dissent. My view of the case sub judice departs from that adopted by the majority upon the question of the significance to be given the evidence in the affidavit of the clerk concerning the markings upon the returned envelope and claim check.

However, first it should be recognized that this case is not truly a rebuttable presumption of delivery case. Even if the four elements that the majority has recited from Edmondson v. Air Svc. Co., 123 Ga. App. 263 (2) (180 SE2d 589) are conceded, nothing is accomplished. It is uncontroverted that the letter was written, properly addressed, contained correct postage, and was duly mailed in the post office. Clearly, a rebuttable presumption of delivery is established. Equally clear is the fact that the presumption of delivery was fully rebutted by the return of the unopened envelope. I can only express my astonishment that the majority simultaneously acknowledges the return of the letter while holding that the record is devoid of any evidence rebutting the presumption that plaintiff’s counsel received the letter.

The majority also relies on the rule that a refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice. The principle stated by the majority is correct, but there is no probative evidence showing that this principle is applicable to the case sub judice. In other words, there is no probative evidence supporting an hypothesis that plaintiff’s counsel, the addressee, refused to accept delivery of the letter. There are only the representations of some unknown person or persons upon the envelope and “Claim Check” form which are incorporated by reference into the affidavit of the clerk. Such evidence is clearly hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Southern Business Machines of Savannah v. Norwest Fin. Leasing, 194 Ga. App. 253, 256 (2) (390 SE2d 402); Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 171 (2) (390 SE2d 257). Compare Hill v. Federal Employ ees &c. Union, 193 Ga. App. 44, 45 (2b) (386 SE2d 874). As the evidence failed to establish that plaintiff became aware of the notice to pay costs prior to service of defendant’s motion to dismiss, I would hold that the trial court did not err in denying defendant’s motion to dismiss plaintiff’s appeal. Thus, I would affirm the judgment in Case No. A91A1949.

Decided January 29, 1992.

H. Pierre, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Thomas D. Martin, for appellee.

The trial court’s order, dismissing without prejudice plaintiff’s action against defendant, was entered prior to the decision in Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525). It is clear under Loftin that several orders granting leaves of absence to defense counsel, which were written, signed, and entered in the record of the case sub judice, sufficed to avoid operation of OCGA § 9-11-41 (e), the substantial equivalent of OCGA § 9-2-60 (b). Fi/e dormant years not having elapsed since the last of these orders, I would hold that there was no dismissal by operation of law. Thus, I would reverse the judgment in Case No. A91A1948.

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


text:
    A91A2039.
    THE STATE v. OLIVER.
    (415 SE2d 54)
   Birdsong, Presiding Judge.

The State appeals from the trial court’s order which dismissed a count of an indictment alleging John Bradley Oliver violated OCGA § 40-5-58 (c) because the 1990 amendment to OCGA § 40-5-58 eliminated convictions for driving on a suspended license as one of the offenses for which one could be declared an habitual violator. See Galletta v. Hardison, 168 Ga. App. 36 (308 SE2d 47). The record shows that Oliver was indicted for operating a motor vehicle on May 18, 1991, within five years after he had been declared an habitual violator under the provisions of OCGA § 40-5-58 (a) (1). After the trial court granted Oliver’s oral motion to dismiss the habitual violator count because of the change in the law, the State appealed. Held:

On May 16, 1987, Oliver was declared an habitual violator and his driver’s license was revoked because he had been convicted of driving on a suspended license on April 11, 1986, driving under the influence of alcohol on February 28, 1987, and driving on a suspended license on that same date. On January 1, 1991, however, the 1990 amendment (Ga. L. 1990, p. 2048, § 4) to OCGA § 40-5-58 (a) became effective and convictions for driving on a suspended license (OCGA § 40-5-121) were eliminated as offenses which could be used to support habitual violator status.

Decided January 29, 1992.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistan; District Attorney, for appellant.

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

Oliver’s reliance on Galletta v. Hardison, supra, is misplaced. Galletta was an appeal of the decision to declare Galletta an habitual violator and the issue on appeal was whether a similar change in the law was sufficient to make an administrative habitual violator determination invalid. In the instant appeal, Oliver had been declared officially an habitual violator and that decision was no longer subject to administrative appeal. A change in the law after one has been declared an habitual violator does not automatically rescind that status. “If the person is driving despite notification that he may not do so because he has been declared an habitual violator, he is [flouting] the law even if one or more of the underlying convictions is voidable. When continuing to drive instead of challenging the convictions upon notification of habitual violator status ... he is then in violation of OCGA § 40-5-58 (c).” State v. Bell, 182 Ga. App. 860-861 (357 SE2d 596).

It is unnecessary to prove the defendant’s prior convictions in an habitual violator prosecution. The State is required only to prove the defendant was declared an habitual violator and he operated a motor vehicle in this state without having obtained a valid driver’s license. The contemptuous disregard for the law by driving after being declared to be an habitual violator forms the essence of this crime, and this is an offense separate and distinct from the offenses which led tc the driver being declared an habitual violator. Further, OCGA § 40-5-58 (c) is not a recidivist statute and proof of the defendant’s prior convictions is unnecessary. State v. Tart, 183 Ga. App. 737, 738 (35£ SE2d 722).

Accordingly, the trial court erred by dismissing the habitual violator count of the indictment.

Judgment reversed.

Pope and Cooper, JJ., concur.


author: Judge Arnold Shulman.

text:
    A91A2127.
    DOE v. VILLAGE OF ST. JOSEPH, INC.
    (415 SE2d 56)
   Judge Arnold Shulman.

The appellee is a non-profit, charitable corporation which oper ates a boarding school in Atlanta. The appellant’s then 13-year-old daughter (referred to in the litigation as “Jane Doe”) attended this school from October of 1986 through September of 1987. Acting both individually and on her behalf, the appellant brought the present action against the appellee seeking damages for certain emotional trauma allegedly suffered by his daughter as the result of having participated in a consensual sexual relationship with an adult male staff member at the school during this period. The staff member in question, who had been employed by the school as a recreational supervisor, categorically denied having engaged in sexual relations with the child. The appellee moved for summary judgment in the action, and the appellant thereafter dismissed his claim for recovery in his individual capacity. The trial court then granted the appellee’s motion for summary judgment with respect to the appellant’s claim on behalf of his daughter, and this appeal followed.

The appellant testified that he became concerned about the nature of the staff member’s relationship with his daughter during the course of the school year because she frequently talked to him on the telephone on weekends while staying at his (the appellant’s) house, and also because she had some photographs of him, along with a business card pertaining to a part-time job which he apparently held with a radio station. The appellant conveyed his concerns to his daughter’s guidance counselor at the school and was referred by the latter to the school’s director. He testified that the director told him that the staff member was a responsible person who was “engaged to be married or something” and that she did not think he (the appellant) “had anything to worry about.”

This discussion with the director evidently took place early in 1987. It does not appear that the appellant ever brought up the issue again while his daughter was enrolled at the school; and he conceded that except for the factors mentioned above, he had no reason during this period to believe that the staff member’s relationship with his daughter was anything other than professional. It was not until after the daughter transferred to another institution in the fall of 1987 that she told anyone she had engaged in sexual activity with the staff member. It is evident from the appellant’s deposition testimony that a major reason for his earlier concern about the relationship was that the staff member in question is black. The appellant testified that he was “probably” prejudiced against black men and did not want his daughter (who is white) dating blacks.

The school’s director testified that she had conducted an investigation into the child’s allegations but had found “no evidence whatsoever that [the staff member] had acted inappropriately.” While there is evidence that the child told her guidance counselor that she had a “crush” on the staff member, she stated that she never told anyone at the school (including her classmates) that she was involved in sexual activity with him. The child testified that she last engaged in intercourse with the staff member in August of 1987, that she became pregnant by him at about that time, and that the pregnancy terminated in a miscarriage in late October or early November. However, there is no medical or other evidence tending to corroborate the latter testimony. To the contrary, there is evidence that the child underwent a pregnancy test on September 20, 1987, with negative results.

1. The trial court correctly concluded that the appellee could not be held liable for the alleged misconduct of the staff member under the doctrine of respondeat superior.

“This court has repeatedly held that ‘ “(i)n determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual employment.” ’ [Cits.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983) (holding that the telephone company was entitled to summary judgment in an action by a customer to recover for injuries sustained as the result of being assaulted by an employee who had just installed a telephone in the customer’s home). “If . . . the tortious act were committed not by reason of the employment, but rather for purely personal reasons disconnected from the authorized business of the master, the master would not be liable. [Cits.]” Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595, 596 (388 SE2d 871) (1989) (affirming an award of summary judgment to the hospital in a wrongful death action based on a nurse’s conduct in administering a lethal injection to the decedent “to put him out of his misery”). See generally OCGA § 51-2-2.

On the basis of thé foregoing authorities, the alleged misconduct at issue in this case must similarly be considered personal in nature and unrelated to the performance of the staff member’s employment duties. Accordingly, we hold that the appellee was properly granted summary judgment on this theory of recovery. Accord Big Brother/ Big Sister cfee. v. Terrell, 183 Ga. App. 496, 498 (359 SE2d 241) (1987).

2. The appellant contends that fact issues remain as to whethei the appellee was negligent in hiring, retaining or supervising the employee. In order for an employer to be held liable for the crimina' conduct of an employee based on such negligence, it must be showr that the employer knew or should have known of the employee’s criminal propensities. See Southern Bell Tel. &c. Co. v. Sharara supra, 167 Ga. App. at 666; Big Brother/Big Sister &c. v. Terrell supra, 183 Ga. App. at 497 (1). The evidence of record in the presen case establishes without dispute that a records check was conductec on the employee prior to his being hired but that it turned up m information suggesting that he had any criminal record or propensities. The appellant has produced no contrary evidence suggesting that such information was available but overlooked. Compare Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. 181 (387 SE2d 411) (1989). Indeed, the appellant’s counsel did not even question the staff member about his background during his deposition. “The submission of evidence by appellee that it did not know of [the employee’s alleged] criminal propensities after investigating his criminal and employment record and the absence of any evidence controverting appellee’s evidence or indicating that appellee should have known of [his alleged] criminal propensities entitled appellee to summary judgment” on this theory of recovery. Kelley v. Baker Protective Svcs., 198 Ga. App. 378, 379 (401 SE2d 585) (1991). See also Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876 (3) (298 SE2d 600) (1982).

3. The appellant finally contends that the appellee may be held liable for the alleged molestation of his daughter under the theory that, by allowing it to occur, it violated the duty which “ ‘a business inviter owes ... to protect its invitees from abusive language and conduct’ ” on the part of its employees. Reveo Discount Drug Centers of Ga. v. Famble, 173 Ga. App. 330, 332 (5) (326 SE2d 532) (1985), quoting from Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (284 SE2d 74) (1981). However, this duty is based upon the principle that “ ‘[o]ne who maintains a mercantile establishment for the purpose of selling goods owes a duty to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify, and wound the feelings of the customer.’ ” Reveo, supra, 173 Ga. App. at 331-332, quoting from Lemaster v. Millers, 33 Ga. App. 451 (1) (126 SE 875) (1924). The alleged abuse at issue in the present case obviously does not fall into this category. Moreover, “ ‘the gist of th[is] right of recovery ... is based on the right of the invitee to be protected from any tortious misconduct on the part of the corporation from its agents and employees acting within the scope of their duties and about their master’s business’ ” (Emphasis supplied.) Swift v. S. S. Kresge Co., supra, 159 Ga. App. at 572, quoting from Southern Grocery Stores v. Keys, 70 Ga. App. 473 (28 SE2d 581) (1944). Having previously held, in Division 1 of this opinion, supra, that the alleged misconduct of the employee in this case was entirely personal in nature and unrelated to his employment duties, we hold that the appellee was also entitled to summary judgment on this theory of recovery.

4. The appellant’s remaining contentions are rendered moot by the foregoing.

Decided January 29, 1992.

Ronald C. Harrison, for appellant.

Harmon, Smith, Bridges & Wilbanks, Archer D. Smith III, Tyrone M. Bridges, Marian B. Wilbanks, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A2180.
    HARRIS v. THE STATE.
    (414 SE2d 919)
   Birdsong, Presiding Judge.

Willie Gary Harris appeals his judgment of conviction, sentence, and denial of his motion for new trial. Held:

1. The enumeration that the trial court erred in denying appellant’s motion for continuance is without merit. Although the enumeration of error specifically limited its claim of abuse of discretion to the fact that the motion for continuance was denied after a lapse of only ten days from counsel appointment to trial for a serious felony charge, appellant made several assertions in his brief in support of this enumeration including, inter alia, an insufficient case preparation time (ten days from date of appointment to trial, although it is noted that appellant was represented throughout the critical proceedings of this trial by not less than two counsel), a general assertion of bad weather conditions alleged to have hampered the arrival of unspecified witnesses whose expected testimony was not summarized for the record, appellant’s medical condition (the record reflects that although appellant did not testify in his behalf he consulted with his counsel during trial and never requested a recess based on medical discomfort) difficulty in locating witnesses on the State’s witness list, and the omission of Officer Yarborough from the witness list. “The grant or denial of a motion for a continuance is left to the sound discretion of the trial court and it is not to be disturbed unless it clearly appears that there is an abuse of discretion.” Peebles v. State, 260 Ga. 165, 166 (1) (391 SE2d 639). Under the attendant circumstances, appellant has failed to establish that the trial court abused its discretion. Fowler v. State, 195 Ga. App. 874 (2) (395 SE2d 33); Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779) (counsel appointed ten days before trial).

2. Appellant asserts the trial court erred in denying his motion to suppress the defendant’s identification from the line-up, as the eyewitness testimony was impermissibly tainted by suggestive and improper police conduct. We. disagree. See generally Martin v. State, 193 Ga. App. 581 (1) (388 SE2d 420), citing Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401); McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888). The record shows the victim had a substantial period of time in which to view the perpetrator, during which time the victim was lead around the house at gunpoint and verbally threatened. The offense was committed in the daytime and the victim’s observation of the perpetrator was not shown to have been hampered either by inclement weather conditions, lighting, or by any disguise worn by the assailant. The victim’s attentiveness during the incident can be inferred from her clear recollection of the sequence of events that occurred, her notice of the perpetrator’s parked car, her observation of the state of the perpetrator’s hair at the time of the incident, and her attention to the perpetrator’s facial features and weight. The victim’s level of certainty of identification at trial was that of absolute certainty notwithstanding vigorous cross-examination regarding the accuracy of her identification. The length of time between the crime and the identification was not inordinately great. Thus, we find that there exists no substantial likelihood of irreparable pretrial misidentification of appellant or other prejudicial taint of the identification process. Moreover, assuming arguendo a taint in the pretrial identification process had occurred, the witness’ in-court identification may still be admitted if it has an “independent origin” from the illegal identification procedures involved. McCoy, supra at 261. Considering the totality of the circumstances, we find the eyewitness’ identification had such an independent origin.

3. Appellant asserts that the trial court erred by repeatedly asking prosecutorial questions during the trial of the case and by intimating through his actions his opinion as to the guilt of the appellant. See generally OCGA § 17-8-57.

(a) “ ‘ “The trial judge has the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case; and the extent to which the examination conducted by the court shall go is a matter within [its] discretion. And a lengthy examination by the court of a witness called by either party will not be cause for a new trial, even though some of the questions propounded by the court were leading in character, unless the court, during the examination of the witness by himself, expresses or intimates an opinion of the facts of the case, or as to what has or has not been proved, or the examination takes such course as to become argumentative in character.” ’ ” Thomas v. State, 240 Ga. 393, 400 (3) (242 SE2d 1). Examination of the record in toto reveals a possible impatience with appellant’s counsel; but we conclude that none of the remarks of which appellant complains on appeal is so egregious as to constitute a violation of OCGA § 17-8-57 or amount to circumstances wherein the trial court departed from its judicial role and assumed the mantel of a prosecutor. Additionally, we observe that the bulk of the now-challenged questions and remarks did not generate any objection by appellant’s counsel and, except as to a matter hereinafter discussed, no motion for mistrial was made following the trial court’s ruling oh those particular objections which were timely posed. When an appellant could have tendered a timely motion for mistrial or requested a cautionary instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial. See Sanford v. State, 261 Ga. 556 (2c) (408 SE2d 110); Cooper v. State, 260 Ga. 549, 550, n. 2 (397 SE2d 705).

Finally, in the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions and procedural directives of the trial court. Dykes v. State, 191 Ga. App. 879, 880 (2) (383 SE2d 210). In this regard, the trial court in its final charge to the jury included therein a curative instruction that “by no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of the defendant.” Nothing contained on the face of this record is so compellingly erroneous as to preclude the jury from following this curative instruction, and we note that appellant entered no exception to the curative instruction at the conclusion of the court’s charge.

(b) During trial, the trial court questioned appellant’s counsel regarding the signature on a certain document and made inquiry implying that the document may have been signed by counsel’s brother; the trial court stopped just short of compelling appellant’s attorney to become a witness at trial. Counsel entered a timely objection to this procedure. The objection was tacitly sustained, as the trial court immediately instructed the jury to forget the court’s remarks and not to consider them in any way in reaching a verdict. Appellant’s counsel immediately entered a motion for mistrial on the basis that the curative instruction was inadequate to remove the taint. The trial court tacitly denied the motion for mistrial by giving a second curative instruction which, in addition to instructing the jury to forget the remark and not consider it in their verdict deliberation, informed them that the remark “was improper.” Thereafter, appellant did not renew his mistrial motion or his objection. By having failed to renew timely the mistrial motion after the second curative instruction, appellant has failed to preserve these issues for appellate review. Schirato v. State, 260 Ga. 170, 172 (5) (391 SE2d 116); Pless v. State, 260 Ga. 96, 98 (2) (390 SE2d 40).

4. Appellant asserts the trial court erred in ruling that appellant’s request to charge was not timely submitted to the court.

(a) We note that the trial court failed to comply with the requirements in OCGA § 5-5-24 (b) that counsel be informed before closing argument of the trial court’s proposed action on requests for jury instructions. See generally Bentley v. State, 261 Ga. 229, 230 (3) (404 SE2d 101). However, as appellant has failed to raise this matter in an enumeration of error, the issue has not been preserved for appellate review. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

(b) The offense of burglary by intimidation was not reasonably raised by the evidence within the meaning of Alvarado v. State, 194 Ga. App. 781 (391 SE2d 668), aff’d State v. Alvarado, 260 Ga. 563 (397 SE2d 550).

(c) The request for charges at issue was not presented in writing until after closing argument. Accordingly, the request was not timely. See OCGA §§ 17-8-56 (a); 5-5-24 (b); Peebles v. State, supra at 167. An assertion before closing argument that a request for charges may be tendered subsequently is not sufficient. Further, defendant’s request to charge number 3 appears to be merely a reproduction from a book on pattern jury instructions. The last sentence on the page of defendant’s request to charge number 3 pertains to a definition of “force” and is incomplete on its face. Further, the charge request contains a note to “charge only appropriate language.” And the request to charge does not identify which language therein contained is or is not appropriate. In sum, defendant’s request to charge number 3 is both incomplete and not adequately tailored to the case at bar. If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404); Jones v. State, 200 Ga. App. 519, 521 (2c) (408 SE2d 823).

5. Appellant’s assertion that the verdict form submitted to the jury was improper, as it was error to give the jury a verdict form on which both the words “guilty” and “not guilty” were preprinted, is without merit. The verdict form pertinently provided: “VERDICT We, the Jury, find the Defendant (GUILTY OF ARMED ROBBERY) (NOT GUILTY).” The form on its face is not misleading, inaccurate, or suggestive of a verdict. Compare Chapman v. State, 258 Ga. 214, 217 (4) (367 SE2d 541). Perkins v. State, 151 Ga. App. 199 (3), (6) (259 SE2d 193), overruled in part, Chance v. State, 154 Ga. App. 543, 544 (2) (268 SE2d 737), is distinguishable and not suasive.

6. Appellant’s assertion that the trial court erred by allowing trial to proceed without the defendant being arraigned is without merit. The trial judge stated more than once on the record that arraignment had been conducted and defendant had entered a plea of not guilty. Appellant argues, however, that arraignment and plea entry did not occur, as no notation to that effect appears on the indictment. We will not presume error from a silent record. Defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281).

7. Appellant asserts the trial court erred in failing to recuse himself on the grounds that the court had prosecuted appellant on at least two other occasions when the trial judge was the district attorney.

During the motion for new trial hearing, the trial court stated for the record that “I didn’t know Willie Gary Harris when I tried it. I had no recollection of him. So many people coming by I didn’t remember him. His name meant absolutely nothing to me,” and when questioned as to this statement, the court gave its “word” as to the matter. Immediately thereafter appellant’s counsel stated: “And I would accept the court’s explanation of that. We just feel that we’d like to make it a part of the record. ...” However, appellant’s counsel filed no motion for recusal at this time or at any time thereafter with the trial court, and did not request that the record remain open for such purpose. At the onset, we would have difficulty requiring the trial court to disclose sua sponte that which it does not know or once knew and now cannot remember. Moreover, it is to protect appellant against late disclosures that the Superior Court Rules were designed to allow filing of recusal motions five days after discovery of the information relevant thereto.

The record in this case is somewhat hazy as to when appellant first became actually aware that the trial judge had served as the district attorney who had previously prosecuted appellant for certain felony offenses, including inter alia, burglary. However, appellant made an admission in judicio during the hearing on the new trial motion that by at least January 14, 1991, the day of trial, it did have in its possession the documents found in defense Exhibit Number 1, particularly including prior convictions and disposition sheets thereof. Among these documents clearly appears the fact that the trial judge had prosecuted appellant when the trial judge was serving as district attorney. Nevertheless, appellant neither moved for recusal of the trial court after receipt of this information nor argued for recusal in support of its motion for new trial, which had been filed only on the general grounds. Uniform Superior Court Rule 25.1 requires that in the absence of good cause shown motions for recusal must be filed within five days of the movant’s first learning of the purported grounds for disqualification, or at least ten days prior to trial. Smith v. State, 192 Ga. App. 18, 19 (1) (383 SE2d 600). A motion for recusal must be not only legally sufficient but timely. Romine v. State, 251 Ga. 208, 210 (2) (305 SE2d 93). Consistent with the presumption that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment (White v. State, 197 Ga. App. 162, 163 (398 SE2d 35), citing Strickland v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674)), is the rebuttable presumption that counsel has read all documents obtained during the discovery process within a reasonable time after receipt thereof, and in the absence of an express showing on the record to the contrary that such was accomplished before the conclusion of trial. In this regard, we note that an inadequate time in which to read discovered documents was not asserted as a specific ground in support of the motion for continuance. Appellant had timely access to information establishing the trial court’s previous prosecution (while serving as district attorney) of appellant. Nevertheless counsel failed to file a recusal motion and did demand recusal during the hearing on his motion for new trial of June 27, 1991 (over five months from the date he concedes he had possession of the documents in defense Exhibit Number 1). Under the attendant circumstances, we find appellant has failed to raise the issue of trial court recusal at the earliest moment within the meaning of Pope v. State, 257 Ga. 32, 35 (2b) (354 SE2d 429). Appellant has not preserved this issue, as crafted by his enumeration of error, for appellate review.

Decided January 29, 1992.

Kendall, Dixon & Turk, Alvin L. Kendall, Graylin C. Ward, for appellant.

William G. Hamrick, Jr., District Attorney, David P. Oliver, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1609.
    ORDONEZ v. THE STATE.
    (415 SE2d 179)
   Carley, Presiding Judge.

After a jury trial, appellant was acquitted of three drug violations which were alleged to have occurred on April 5, 9 and 18, 1990. However, appellant was found guilty of three drug violations which were alleged to have occurred on the subsequent dates of April 20 and 26 and May 4, 1990. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

Both of appellant’s enumerations' of error relate to his entrapment defense. The trial court’s refusal to give the following requested instruction is enumerated as error: “[T]he critical time to focus upon the issue of entrapment is at the time the informer first contacted the defendant to propose an illegal drug transaction and not at the time of the criminal offense. If after considering all of the evidence or lack of evidence in this case, you have a reasonable doubt that the defendant was not predisposed, that is, ready and willing to enter into an illegal drug transaction as charged in the indictment, at the time the informer first contacted the defendant, then it would be your duty to return a verdict of not guilty.” (Emphasis in original.) After being instructed and having begun its deliberations, the jury asked the trial court the following question: “Please clarify if each offense is separate of the other or is it possible that entrapment could be involved in one but not the others.” The trial court’s refusal to respond to this question by instructing the jury that appellant was either entrapped on all six offenses or not at all is enumerated as error. Since these two enumerations of error are interrelated, they will be considered together.

A defendant’s commission of subsequent criminal acts does not necessarily demonstrate his predisposition to have committed previous criminal acts. “If the ‘creative activity,’ [cit.], of the law-enforcement official generates criminal acts that are ‘not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement,’ [cit.], those [subsequent] criminal acts cannot be used to show predisposition.” Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). See also Sherman v. United States, 356 U. S. 369, 374 (78 SC 819, 2 LE2d 848) (1958). However, it certainly does not follow that a defendant’s non-predisposition to have committed previous criminal acts will necessarily insulate him from guilt for his commission of subsequent criminal acts. According to the weight of authority, “once an entrapment is established, subsequent acts which are part of the same course of conduct are [not] necessarily the products of the entrapment.” People v. Washington, 506 NE2d 1387, 1390 (111. App. 2 Dist. 1987). See also United States v. Khubani, 791 F2d 260 (2d Cir. 1986); United States v. North, 746 F2d 627 (9th Cir. 1984); United States v. Wells, 506 F2d 924 (5th Cir. 1975). “In each of those cases, the jury asked the trial court essentially the same question the jury asked here and . . . was permitted to consider each count separately. Each of the reviewing courts affirmed the defendants’ convictions for subsequent criminal conduct, concluding that whether or not an initial entrapment continues through a series of criminal transactions is a question of fact for the jury to determine. [Cits.]” People v. Washington, supra at 1390.

It may well be true that, “ ‘[n]ormally, predisposition refers to the state of mind of a defendant [immediately] before government agents make any suggestion that he should commit a crime.’ ” (Emphasis supplied.) United States v. North, supra at 630. See also United States u. Lasuita, 752 F2d 249 (6th Cir. 1985). Nevertheless, “[w]e do not think that, if [appellant] was not initially disposed to [deal] drugs, he could not, as a matter of law, develop such a disposition during the later course of dealing. He might well have found such dealing so profitable and easy that he thereafter willingly continued it, regardless of [the] original inducement. . . . The initial entrapment, assuming it existed, [would] not immunize [appellant] from criminal liability for subsequent transactions that he readily and willingly undertook.” United States v. North, supra at 630. See also United States v. Khubani, supra at 264.

“We . . . find no . . . compelling circumstances here which would have required the trial court to conclude that [the] actions [of the State’s informant] had, as a matter of law, induced [appellant] to follow a course of criminal conduct [throughout all six transactions] rather than to commit [only the first three] criminal act[s].” People v. Washington, supra at 1390. Although appellant testified to the contrary, the State’s informant and the undercover officer both testified that, after the first two transactions, which had been arranged by the State’s informant, the undercover officer had dealt directly with appellant in setting up the subsequent transactions. Moreover, the undercover officer indicated that, at least as soon as the fourth transaction, it had been appellant who would initiate the contact between them. See Goolsby v. State, 184 Ga. App. 390, 391-392 (361 SE2d 684) (1987). Compare the dissenting opinion of Judge Pope in Emanuel v. State, 195 Ga. App. 302, 305-306 (393 SE2d 74) (1990), which was adopted as the opinion of the Georgia Supreme Court in Emanuel v. State, 260 Ga. 425 (396 SE2d 225) (1990).

Accordingly, we find no error in the trial court’s refusal, either before or during the jury’s deliberations, to give instructions in accordance with appellant’s requests.

Judgments affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully that the first enumeration of error is without merit, for the requested instruction was not a correct statement of the law and was properly rejected by the trial court.

I concur in the ruling on the second enumeration because that is the prevailing law at the present time. However, when a jury asks for a clarification of the law, it ought to be given. A jury hears the charge only once. It is comprised of a whole series of interconnected legal principles, some of which are totally unfamiliar to the lay jurors. The law of entrapment is a difficult area, as evidenced by the differences of opinion as to its meaning and application expressed in judicial decisions.

In this case defendant was charged with six similar drug offenses which occurred within a month. They all arose out of his effort to get a Pac-Tel phone for his employer. The court instructed the jury on entrapment, couching the instruction in the singular as though it applied separately to each of the separate acts independent of each other. The court spoke of “a crime . . . the crime . . . the act. . . the criminal offense.” Although the jury was dealing with six alleged acts, there was no instruction to convey that there could be any relationship among the six acts with respect to entrapment or predisposition or inducement. They were not told that the legal principle in such cases is that initial entrapment could continue through a series of criminal transactions, which is a question of fact for it to determine. See People v. Washington, 506 NE2d 1387, 1390 (111. App. 2 Dist. 1987).

Decided January 17, 1992

Reconsideration denied January 30, 1992

Steven H. Sadow, for appellant.

Thomas C. Lawler III, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

As stated by the United States Supreme Court in Sherman v. United States, 356 U. S. 369 (78 SC 819, 2 LE2d 848) (1958), in concluding that the defense of entrapment was established as a matter of law by a defendant convicted of three narcotics sales: “It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement.” Id. at 374.

Here, the jury apparently found predisposition for the later acts, of which defendant was found culpable, unrelated to the unlawful inducement which rendered him not culpable of the earlier acts. We must assume the jury considered- that the “creative activity” of idea origination and inducement (Sherman, supra at 372) ended and predisposition arose after the third violation.


author: McMurray, Presiding Judge.

text:
    A90A0872.
    COKER v. K-MART CORPORATION.
    (415 SE2d 198)
   McMurray, Presiding Judge.

Our prior judgment in Coker v. K-Mart Corp., 197 Ga. App. 701 (399 SE2d 249), wherein this Court reversed the trial court, having been reversed by the Supreme Court of Georgia in K-Mart Corp. v. Coker, 261 Ga. 745 (410 SE2d 425), our judgment is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

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

Decided January 30, 1992.

D. William Garrett, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, John C. Stivarius, for appellee.


text:
    A91A1582.
    PAPPAS v. SOUTHEAST UNIVERSAL DEVELOPMENT, INC.
    (415 SE2d 190)
   Birdsong, Presiding Judge.

Tina Pappas appeals from a judgment following a jury trial in favor of Southeast Universal Development, Inc. (“Southeast”), in Southeast’s quantum meruit action to recover the value of certain improvements to Pappas’ property. See OCGA § 9-2-7.

She contends that the trial court erred by denying her motion in limine and by overruling her objections to the admission of other evidence. She also contends that there was no evidence supporting the jury’s verdict. Held:

1. Pappas’ motion to disqualify Southeast’s appellate counsel based upon her perceived conflict of interest is denied. The materials submitted by Pappas merely establish that Southeast’s counsel represented a joint venture in which Pappas had an interest in matters unrelated to this litigation. She was never his client, and there was no conflict of interest.

2. Pappas contends the trial court should have excluded all evidence concerning the cost of Southeast’s materials and workmanship because recovery under quantum meruit is limited to the value received by Pappas (see Pembroke Steel Co. v. Technical. Sales Assoc., 138 Ga. App. 744 (227 SE2d 491)), and therefore the trial court erred by denying her pretrial motion in limine. While Pappas correctly states the measure of damages, her argument is incorrect because Southeast’s materials and workmanship are relevant to some extent to the value of the improvements made to Pappas’ property. Maloy v. Ewing, 157 Ga. App. 95 (276 SE2d 145). Additionally, the record shows the evidence which Pappas sought to exclude was used by Southeast’s expert witness in his testimony as part of the basis for establishing the value to Pappas of the repairs made to her property. Moreover, when this evidence was admitted, the trial court instructed the jury the evidence was relevant only to the extent it gave the jury a basis for the value of the improvements, but it was the jury’s responsibility to determine the value of the improvements to Pappas. This limiting instruction was followed later by other instructions on the proper measure of damages in this case. The cases cited by Pappas (see, e.g., City of Gainesville v. Edwards, 112 Ga. App. 672 (145 SE2d 715)) do not stand for the proposition that evidence of cost is never admissible in a quantum meruit case. Accordingly the trial court did not err by admitting this evidence, and Pappas’ first and third enumerations of error are without merit.

Decided January 30, 1992.

Cornelison & Associates, Rex P. Cornelison III, Stephen M. Levinson, for appellant.

Venema, Towery, Thompson & Chambliss, Adrian F. Lanser III, for appellee.

3. Although Pappas argues that no evidence supported the jury’s verdict, the record shows otherwise. The transcript shows Southeast’s expert testified about the value of the improvements to the property and a real estate appraiser also testified about the value of the property before and after the repairs. The verdict was within the range of the values established in the testimony. Under the circumstances there was evidence to support the verdict, and as “ ‘[valuation] of services rendered ... is exclusively a matter for jury determination’ ”

(Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 29 (338 SE2d 496)), we are not authorized to substitute our judgment for that of the jury. “On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App 432 (326 SE2d 777).” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282). Therefore, this enumeration of error is also without merit.

4. Although Pappas’ final enumeration of error asserts that the trial court erred by admitting prejudicial evidence which was not relevant to the issues, her argument essentially restates the arguments supporting her first three enumerations of error and does not identify the evidence which she deems objectionable. Consequently, to the extent that this enumeration is not disposed of by our holdings in Divisions 1 and 2 above, it is deemed abandoned since merely restating the enumeration of error is not argument (Summerfield v. Decinque, 143 Ga. App. 351 (238 SE2d 712)) and Pappas makes no other specific argument, cites no authority relevant to this enumeration, and makes no reference to the transcript. Court of Appeals Rule 15 (c) (2); Sep-1 ulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (316 SE2d 554).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2147.
    TOLBERT v. THE STATE.
    Decided January 30, 1992.

      John H. Tarpley, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.
    (415 SE2d 192)
   Birdsong, Presiding Judge.

Marshall Tolbert appeals his conviction for rape. He alleges that the trial court erred by refusing to give the following requested charge taken from Simmons v. State, 99 Ga. 699, 703 (27 SE 755): “I charge you that the testimony of the person alleged to have been raped should always be scrutinized with care; and when there is much in the facts and circumstances to discredit her testimony, including evidence presented by the defendant, it should be deemed insufficient to support a verdict of guilty.” Held:

The trial judge refused to give the charge because it was “old law.” Pretermitting the continued vitality of this and other dated statements based upon Lord Hale’s view of the crime of rape (see, e. g., Warren v. State, 255 Ga. 151, 153-155 (336 SE2d 221)), the requested charge “is taken from the discussion of the evidence in Simmons v. State, [supra].” The language in the Simmons case was quoted with approval in Slaughter v. State, 181 Ga. 32, 37 (181 SE 292), in discussing the evidence in that case. It'was not approved as an instruction to the jury in either case.

“It is the duty of the jury to weigh the facts and circumstances which discredit the testimony of the prosecutrix, and to determine whether they will believe her in spite of these discrediting facts and circumstances. It was not error in the present case to refuse to give this requested instruction.” Overton v. State, 230 Ga. 830, 834 (199 SE2d 205). “[L]anguage which is appropriate when contained in an opinion by a reviewing court may be improper when embodied in a jury charge.” (Citation and punctuation omitted.) Lofton v. State, 157 Ga. App. 447, 448 (278 SE2d 94).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1724.
    DAVIS v. THE STATE.
    (414 SE2d 902)
   Andrews, Judge.

Davis was sentenced in 1985 to ten years probation for drug possession without an adjudication of guilt under the provisions of the First Offender Act of OCGA § 42-8-60. On January 28, 1991, Davis was arrested for violation of his probation for possession of drugs which had been found in his residence. Thereafter, the State filed a petition for an adjudication of Davis’ guilt and for the imposition of a sentence and Davis filed a motion to suppress the items which had been taken in the search. The trial court denied the motion, found that Davis had violated the terms of his probation and revoked his first offender sentence. Davis filed an application for discretionary appeal, the application was granted and the issue presently before us is whether the denial of Davis’ motion to suppress was proper.

The evidence before the court at the hearing on the motion to suppress was that at approximately 3:30 p.m. on January 28, 1991, defendant Davis’ ten-year-old stepson, Darrin Davis, dialed 911 and spoke with Deputy Kirby in the Douglas County Sheriff’s Department. Darrin told the deputy that he knew that drugs were in his house; that the drugs belonged to his mother and father; and that he “would like to get them some help.” He said that his mother would be home at approximately 4:30 p.m. and asked for someone to come and help him before she got home that day.

Deputy Kirby dispatched Deputy Cheryl Smith to Davis’ home with instructions that she needed to arrive there quickly because Darrin’s mother would be home at 4:30 p.m. Because Deputy Smith had difficulty in locating Davis’ house, Deputy Kirby called Darrin and asked him to wait outside. Darrin complied with the deputy’s request.

When Deputy Smith arrived, Darrin led her into a bedroom and showed her a small makeup mirror with a white powdery substance on it, a razor blade, and a bag of marijuana. After seeing these items, the deputy telephoned the station and requested that Captain Wheeler join her at the house.

Captain Wheeler arrived at Davis’ house before Darrin’s mother got home and Deputy Smith gave him the narcotics which she had seized and he placed them in his automobile. At that point, Darrin invited Wheeler into the house and he waited with Deputy Smith and Darrin for Darrin’s mother to come home.

Darrin’s mother arrived at approximately 4:30 p.m. With her consent, her purse was searched and additional contraband was seized. She was arrested and she refused to permit the officers to search the house. She summoned Davis home and he was arrested and also refused to consent to a search of the premises.

1. In all three enumerations of error, Davis challenges the validity of the search and the denial of his motion to suppress. He first contends that the trial court erred in denying the motion to suppress since Darrin, a ten-year-old child, did not have the authority to consent to the search.

Assuming that the officers’ action here constituted a search within the meaning of the Fourth Amendment, we examine first the trial court’s findings of fact, which were supported by the record. “On a motion to suppress evidence, the trial judge sits as the trier of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them.” (Citations and punctuation omitted.) State v. White, 197 Ga. App. 426, 427 (398 SE2d 778) (1990). In finding that Darrin had sufficient legal authority over the house to consent to the search, the trial court observed that Darrin appeared bright, articulate and educated. The trial judge found that Darrin’s daily routine demonstrated that he had the requisite authority over the house to consent to the search in that he was a “latchkey” child, who regularly stayed home after school by himself, used a key to let himself into the house, called his mother from her bedroom to inform her when he arrived safely and was then home alone from after school until approximately 4:30 p.m. (about an hour and-a-half). The trial court also found that Darrin had been educated about drugs and their harmful effects at school and that he called the sheriff’s department because of his desire to help his parents, whom he reasonably believed to be involved in drug usage. The court also found that Darrin invited Deputy Smith into the house and pointed out what he believed to be drugs.

Testimony at the hearing indicated that Darrin was not allowed to invite friends to the house in his mother’s absence, although he was permitted to invite friends there when his parents were home. He had also been instructed to call 911 if trouble arose when his parents were not home.

Based on these facts, the trial court did not err in denying the motion to suppress and ruling that Darrin had sufficient authority to consent to the search. In order for a third party to validly consent to a search, it is necessary that he possess common authority over, or some other sufficient relationship to the premises or objects to be inspected. United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974); Peek v. State, 239 Ga. 422 (2) (238 SE2d 12) (1977).

Atkins v. State, 173 Ga. App. 9 (325 SE2d 388) (1984), affirmed and remanded, 254 Ga. 641 (331 SE2d 597) (1985), outlined the mandatory factors to be considered in determining whether a minor has the requisite common authority to consent to a search and established a totality of the circumstances approach to the determination. ‘In cases where the person consenting to the search has not attained the age of eighteen, the courts have measured the minor’s control over the area searched by examining whether the minor lived on the premises, whether the minor had a right of access to the premises and the right to invite others thereto, whether the minor was of an age at which he or she could be expected to exercise at least minimal discretion; and whether officers acted reasonably in believing that the minor had sufficient control over the premises to give a valid consent to search.” Atkins, supra, 173 Ga. App. 9, 11.

Although, on appeal, the Georgia Supreme Court remanded the case to the trial court for a further suppression hearing regarding the minor’s right of access and right of invitation, in doing so, it stated: “[W]e find that the Court of Appeals correctly identified the factors which should be considered in making a determination as to validity: the minor’s age, address, right of access, and right of invitation. As suggested by the Court of Appeals, an analysis of these factors will indicate the minor’s relationship to the premises or effect sought to be inspected, which is the fundamental consideration in any third party consent search.” Id. at 642.

We do not interpret Atkins as mandating a mechanical application of the criteria. Instead, the case-by-case analysis which Atkins explicitly adopted, is consistent only with a totality of the circumstances approach. See also Rajappa v. State, 200 Ga. App. 372 (408 SE2d 163) (1991).

Evaluating the instant case with a totality of the circumstances analysis compels the conclusion that Darrin had the requisite authority and control over the house to consent to the search. The evidence established that the Atkins requirements were substantially met and that Darrin’s individual personality and daily routine established that he had sufficient control over the premises to give valid consent to search. Furthermore, the police officers acted reasonably in assuming that Darrin had sufficient control over the premises (see Illinois v. Rodriguez,_U. S.__(110 SC 2793, 111 LE2d 148) (1990)), and exercised such discretion and control with regard thereto that he could consent to the search. In the absence of his parents, Darrin possessed sufficient common authority of the premises to consent to the search. Accordingly, the trial court did not err in refusing to suppress the evidence.

2. We need not address Davis’ second and third enumerations because of our conclusion in Division 1.

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Pope, Beasley, JJ., and Judge Arnold Shulman concur. Sognier, C. J., McMurray, P. J., and Cooper, J., dissent.

McMurray, Presiding Judge,

dissenting.

In Atkins v. State, 173 Ga. App. 9 (325 SE2d 388), the police searched the defendant’s premises pursuant to the oral and written consent of the defendant’s 17-year-old brother. They discovered and seized evidence which was used against the defendant at trial. The defendant moved to suppress the evidence, taking the position that his “brother, a minor, did not have sufficient legal authority over the home to permit him to give a valid consent to search the premises.” The motion was denied. On appeal, this Court declined to hold that a minor cannot, as a matter of law, give a valid consent to search. Instead, this Court opted to take a more studied approach, scrutinizing “those indicia of authority used by several of our sister states: the minor’s age, address, right of access and right of invitation.” This Court concluded that the defendant’s 17-year-old brother was authorized to consent to a search of the defendant’s residence.

In concluding that the search in Atkins was legal, this Court surveyed the case law of other jurisdictions and observed: “In cases where the person consenting to the search has not attained the age of eighteen, the courts have measured the minor’s control over the area searched by examining whether the minor lived on the premises; whether the minor had a right of access to the premises and the right to invite others thereto; whether the minor was of an age at which he or she could be expected to exercise at least minimal discretion; and whether officers acted reasonably in believing that the minor had sufficient control over the premises to give a valid consent to search.”

Examining these factors in light of the evidence adduced below leads me to the conclusion that defendant’s stepson did not have authority to consent to a search of the premises. True, defendant’s stepson lived on the premises. And he was permitted to enter his parents’ bedroom after school for the limited purpose of telephoning his mother. But he was not allowed to invite friends into the house without his parents’ permission.

More importantly, I do not believe that a ten-year-old child can oe expected to exercise “at least minimal discretion” in matters such is this. And I fail to see how any police officer could reasonably beieve that a ten-year-old child, no matter how bright, has sufficient ruthority over premises to give a valid consent to search. Compare Rajappa v. State, 200 Ga. App. 372 (2) (408 SE2d 163) (defendant’s 15-year-old daughter “could be expected to exercise at least minimal iiscretion” and police could reasonably believe she had control over ;he premises because she said defendant was out of town and police observed that adults on the premises allowed her to handle the police nterview without assistance). I must conclude, therefore, that the consent to search defendant’s premises was not valid.

My conclusion in this regard is bolstered by the fact that Darrin vas defendant’s stepson — not defendant’s sibling. Thus, unlike Atzins v. State, 173 Ga. App. 9, supra, in which the consenting minor was the defendant’s brother, Darrin’s right to use the premises was of necessity less than the right of defendant. See in this connection, Atkins v. State, 173 Ga. App. 9, 11, supra (“In some cases, the courts have balanced the minor’s right to the use and occupation of the premises against the concomitant right of the one against whom the fruits of the consent search are used.”)

Decided January 14, 1992

Reconsideration denied January 31, 1992

Jay W. Bouldin, for appellant.

David McDade, District Attorney, for appellee.

I would hold that the trial court erred in failing to grant the motion to suppress evidence. Accordingly, I respectfully dissent.

I am authorized to state that Chief Judge Sognier and Judge Cooper concur in this dissent.

       But see Brown v. State, 193 Ga. App. 26 (2) (386 SE2d 903) (1989); Neal v. State, 159 Ga. App. 450 (3) (283 SE2d 671) (1981).


author: Pope, Judge.

text:
    A91A1495.
    PITTS v. THE STATE.
    (415 SE2d 58)
   Pope, Judge.

Defendant was convicted by a jury of aggravated assault and simple assault. He appeals his convictions and the denial of his motion for new trial, raising as his sole enumeration of error the trial court’s denial of his motion for a continuance. On the morning of the second day of trial, defendant moved for a continuance based on the absence of his witness, Dorothy Cooper, who had purportedly been admitted to Grady Hospital the previous afternoon. In support of his motion, defendant presented evidence that Ms. Cooper had been subpoenaed to appear at trial; that when the case was called for trial the previous day, the witness was in the courtroom; and, that the witness became ill after court recessed and was taken to the hospital by defendant. Although defendant testified that Ms. Cooper was present at the time of the alleged incident, he did not proffer evidence as to the facts expected to be proved by the witness.

The trial court denied defendant’s continuance motion, ruling that defendant had failed to offer evidence sufficient to meet the requirements of OCGA § 17-8-25. Specifically, defendant failed tc prove: (1) the medical inability of the witness; (2) her absence was no1 with the permission, directly or indirectly, of the defendant; (3) hei testimony could be procured at the next term of court; (4) the motior was not being made for purposes of delay; and, (5) the witness woulc support the defendant’s claim of self-defense. Defendant’s counse' later attempted to introduce additional evidence pertaining to the medical condition of Ms. Cooper, but the trial court denied defendant’s request to reopen the continuance motion.

Decided January 31, 1992.

Andrei G. Howze, Elizabeth Markowitz, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Carl P. Greenberg, Assistant District Attorneys, for appellee,

“ ‘OCGA § 17-8-25 contains eight statutory requirements which must accompany an application for a continuance. (Cit.)’ [Cit.] Each of these requirements must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness. [Cit.]” Brown v. State, 169 Ga. App. 520, 521 (1) (313 SE2d 777) (1984). See also Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986).

“ ‘A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. [Cit.] Where the moving party fails to make a proper showing of the requirements set forth in [OCGA § 17-8-25], the denial of a continuance motion cannot be said to be an abuse of discretion.’ [Cit.]” Gallimore v. State, 166 Ga. App. 601 (1) (305 SE2d 164) (1983). Compare McGuire v. State, 185 Ga. App. 233 (1) (363 SE2d 850) (1987).

We reject defendant’s argument that, pursuant to OCGA § 17-8-20, defendant should have been granted an opportunity to renew his continuance motion later in the day after defense counsel procured additional evidence proving the medical condition of Ms. Cooper. Although it appears that defendant’s counsel was only informed as to Ms. Cooper’s unavailability at 9:00 a.m., immediately prior to moving for a continuance, defendant had certainly been aware of the witness’ condition the previous day when he accompanied the witness to the hospital. Thus, defendant’s claim of due diligence must fail. See generally Lucas v. State, 174 Ga. App. 580 (1) (330 SE2d 792) (1985).

We also note that defendant’s claim that the witness’ testimony was material to his defense is not supported by the record. The statement made by defendant after arrest and his testimony at trial indicate that even if Ms. Cooper’s testimony had corroborated defendant’s version of events, the facts established would still not have supported a defense of self-defense. Hence, the witness’ testimony could not be material to defendant’s defense. See Daniel v. State, 180 Ga. App. 179 (4) (348 SE2d 720) (1986).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A91A1526.
    HICKEY v. THE STATE.
    (415 SE2d 60)
   Beasley, Judge.

Appellant, Tyrone Curtis Hickey, was convicted of burglary, OCGA § 16-7-1, and enumerates-as error the admission of evidence oí an independent crime.

Appellant was convicted of burglarizing Perry High School on September 2, 1987. He gained entrance by removing a windowpane in the principal’s office. A latent palm print on it matched appellant’s palm print. A small amount of money was stolen, and several tickets to a football game were taken from the bookkeeper’s desk. The stolen tickets were identified, and individuals presenting them at the football game testified they bought them from appellant, who was not a student at the school.

Under USCR 31.3, the State filed notice of its intention to present evidence of four transactions: a burglary at Perry Elementary School on November 11, 1987; burglaries at Perry Middle School on September 24, 1987, and May 11, 1987; a burglary at the Houston County Vocational School on June 16, 1983. The court allowed only evidence of the elementary school burglary.

Witnesses testified that entrance to the elementary school was gained through breaking a classroom windowpane and unlocking the window. A VCR machine and tape were taken from the school library, Legible fingerprints were taken from the box which held the videotape, but these prints were not appellant’s, and his fingerprints were not found at the scene. A personal check of a school employee payable to “SB & T” was taken from the secretary’s desk, and three checks from the school’s check ledger payable to a plumbing contractor were also taken. Appellant was arrested after attempting to cash the school employee’s check, and he was charged with forgery. One of the school’s checks to the plumbing contractor was found in his possession. Another check to the plumbing contractor was cashed at a food store in Perry, and appellant was identified as the person cashing thaí check. The two schools were approximately one-half mile from appellant’s residence;

Appellant argues that the evidence was insufficient to establisl that he was the perpetrator of the other crime and that there were insufficient similarities between it and the offense charged, so that i1 could not be said that proof of the former tended to prove the latter The preconditions undoubtedly must be met. State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

Decided January 31, 1992.

Bond & Zimmerman, Diane M. Zimmerman, for appellant.

Edward D. Lukemire, District Attorney, for appellee.

Conceding that the State’s evidence showed that he was in recent possession of the property stolen from the elementary school, appellant maintains that the State failed to present evidence that he was the burglar. To the contrary, recent possession of stolen goods may raise an inference that the possessor is the one who stole the goods. Thomas v. State, 237 Ga. 690, 692 (II) (229 SE2d 458) (1976); see Myles v. State, 186 Ga. App. 817, 818 (2) (368 SE2d 574) (1988). “[T]he standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crime. [Cit.]” Carter v. State, 192 Ga. App. 726, 729 (8) (386 SE2d 389) (1989). There was sufficient circumstantial evidence that appellant perpetrated the other crime.

The following similarities connected the independent crime and the crime charged: both were burglaries of schools; the schools were within close proximity to each other and to appellant’s home; the burglaries were committed within two months of each other; both burglaries were at night; the burglar gained entrance to the building through a window on each occasion; appellant was found to be in recent possession of the property stolen during each burglary.

The State’s proof of the details of both crimes, and the manner in which they both were committed, evinced a sufficient similarity between the two so as to have warranted admission of evidence concerning the former crime at appellant’s trial for committing the latter.

Finally, appellant argues that the independent crime was not relevant to an issue in the case, and that even if it was, the prejudicial impact outweighed the probative value. However, the two burglaries revealed a common plan, scheme, design, or modus operandi. See Lyles v. State, 215 Ga. 229, 234 (2) (109 SE2d 785) (1959); Carter v. State, supra; see generally Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991). By the independent crime, the appellant left what the jury could reasonably infer was a composite footprint which matched the one left by the perpetrator of the Perry High School burglary. Thus, there was a legitimate purpose for the proof of the independent crime. See Williams v. State, 261 Ga. 640, fn. 2 (409 SE2d 649) (1991). As in Carter, the prejudicial impact of this evidence did not outweigh its probative value.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Andrews, Judge.

text:
    A91A1540.
    MELENDY v. THE STATE.
    (415 SE2d 62)
   Andrews, Judge.

Melendy was convicted by a jury of driving a vehicle únder the influence of alcohol in violation of OCGA § 40-6-391 (a) (4).

1. The defendant claims the trial court erred by failing to grant his motion for a directed verdict of acquittal on grounds that the evidence was insufficient as a matter of law. The evidence shows that police responded to a report that a car was stalled in traffic, and upon arriving at the scene observed the defendant pouring gasoline into the tank of a car stopped in the road. As the officer pulled up behind the car, the defendant got in the driver’s side of the car, attempted to start the car, and then got out of the vehicle as the officer approached him. The officer asked the defendant what happened and the defendant responded that he was on his way home from a football game when the car ran out of gas. The defendant was unable to produce his driver’s license or other identification. There was no one else in or near the car. After detecting a strong odor of alcohol about the defendant and other signs of intoxication, the officer placed the defendant under arrest for driving under the influence. When asked if there was anyone who could move the car, the defendant replied, “no.”

An intoximeter test administered after the arrest measured the defendant’s blood-alcohol content to be 0.17 percent. At trial, a witness for the defendant testified that on the day of the arrest he drove the defendant’s car home from the football game while the defendanl was a passenger. The witness claimed when the car ran out of gas he walked home to get money for gas, and upon returning he saw the police and left.

A conviction for driving or being in actual physical control of £ moving vehicle while under the influence of intoxicants may be basec on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt Johnson v. State, 194 Ga. App. 501-502 (391 SE2d 132) (1990); Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988). Although no om testified they saw the defendant move the car, evidence established i was the defendant’s car; he was the only person at the scene, and h( was observed pouring gas into the tank and attempting to crank thf car as it sat stalled in a lane of traffic. “The jury was authorized na to accept an alternate hypothesis offered by [the defendant].” (Pune tuation and citation omitted.) Fuller v. State, 166 Ga. App. 734, 735 (305 SE2d 463) (1983). The circumstantial evidence was sufficient t( support a finding by a rational trier of fact that while under the influ ence of alcohol, the defendant moved the car to the location where i was first observed by the officer. Johnson, supra; Jackson v. Virginia 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was no.error in the trial court’s denial of the motion for a directed verdict.

Decided January 31, 1992.

Nancy R. Murphy, for appellant.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellee.

2. The trial court did not err by refusing to give a charge requested by the defendant that “a defendant cannot be convicted of driving under the influence for operating a non-moving vehicle.” The jury was charged that “ [i]t shall be unlawful for any person to drive or be in actual physical control of any moving vehicle while there is .12 percent or more weight of alcohol in his blood,” and that the State must prove every material allegation of the accusation and every essential element of the crime charged beyond a reasonable doubt. The charge given adequately covered the subject matter of the requested charge. Phillips v. State, 185 Ga. App. 54, 55 (363 SE2d 238) (1987).

Judgment affirmed.

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