text:
    A92A0971.
    CONSOLIDATED ELECTRIC SUPPLY, INC. v. BISHOP CONTRACTING COMPANY, INC.
    (423 SE2d 415)
   Johnson, Judge.

Consolidated Electric Supply, Inc., supplied materials for the construction of a YWCA Emergency Shelter in Cobb County. When Blake & Kale Electrical Contractors, Inc., the electrical subcontractors, failed to pay for the materials, Consolidated brought an action against Aetna Casualty & Surety Company on a payment bond which it had issued on the project. Aetna filed a third-party complaint against Bishop Contracting Company, Inc., the general contractor, pursuant to an indemnification agreement it had executed with Aetna regarding the payment bond. Bishop asserted in its answer that the action was barred by the one-year statute of limitation contained in OCGA § 36-82-105. In its original answer Aetna did not raise a statute of limitation defense, but it later amended its answer to include that defense. Bishop filed a motion for summary judgment based on the one-year statute of limitation. The motion was granted by the trial court, and Consolidated appeals. We reverse.

OCGA § 36-82-101 provides that: “No contract with this state or with a county, municipal corporation, or any other public board or body thereof for the doing of any public work shall be valid for any purpose unless the contractor shall comply with Code Section 13-10-1.” OCGA § 13-10-1 refers to the posting of performance and payment bonds, and it exactly tracks the language of OCGA § 36-82-101 regarding which entities are required to obtain bonds and the nature of the projects contemplated by the statute.

Following the filing of Bishop’s motion for summary judgment, Consolidated amended its complaint by deleting reference to OCGA § 36-82-101, but maintained its claim for payment under the bond. Bishop argues that the bond was given pursuant to OCGA § 36-82-101, and offers as proof the affidavit of E. Neil Bishop, President and Chief Executive Officer of Bishop Contracting Company, Inc. which states: “The governmental funding agency for the Project which is the subject matter of this action required performance and payment bonds as specified by OCGA Sections 36-82-101 and 13-10-1.” Therefore Bishop concludes that the one-year statute of limitation in OCGA § 36-82-105 should apply.

The assertions contained in the affidavit 'of E. Neil Bishop are conclusory facts and conclusions of law which cannot be used in support of a motion for summary judgment. Peterson v. Midas Realty Corp., 160 Ga. App. 333 (287 SE2d 61) (1981). There is nothing in the record before us which establishes how the project was to be funded. Similarly we do not have before us any evidence that the “government funding agency” referred to in the affidavit requiring issuance of a bond.

From the evidence in the record before us, it is clear that Cobb County was not a party to the construction contracts. On the face of the bonds themselves, which are a part of the record, Cobb County is identified as “Local Agency.” Yet the bonds state that: “Principal (defined as Bishop) entered into a certain contract with Local Agency dated the 23rd day of August, 1988, a copy of which is hereto attached and made a part hereof. . . .” A second bond incorporating a contract dated July 29, 1988 had identical language. The contracts for the project incorporated by reference into the bonds, identify the parties, however, as “Owner,” identified as YWCA of Cobb County and “Contractor,” identified as Bishop. Change orders were authorized by Barbara Bruegge, Director of YWCA of Cobb County and the Certificate of Substantial Completion indicates that acceptance is to be made by the YWCA. These documents neither solicit nor require participation from Cobb County. Since no state, county, or municipal corporation was a party to the contract triggering the provisions of the statute, the only remaining issue to be addressed is whether the YWCA of Cobb County is a public board or body as contemplated by the statute.

Decided October 2, 1992.

Zachary & Segraves, Finn Duerr, for appellant.

OCGA § 36-82-101 et seq. is based on the federal Miller Act, 40 USC § 270a through 270d. The federal statute provides that an appropriate bond must be issued “Before any contract... for the construction, alteration or repair of any public building or public work of the United States. . . .” 40 USC § 270a. Both the federal and Georgia statutes are intended to provide subcontractors providing goods and labor on government projects with a security interest similar to those they would have on private projects. However, neither the federal statute nor the Georgia “Little Miller Act” define “public works” or “public board.” Entities which have been held by Georgia courts to fall within the purview of the statute include a board of education, held to be a public board within the meaning of the OCGA § 36-82-101 in Lance Roofing Co. v. Bd. of Ed. &c., 235 Ga. 590 (221 SE2d 23) (1975); Lance Roofing Co. v. Bd. of Ed. &c., 138 Ga. App. 364 (226 SE2d 161) (1976); a city housing authority, held to be a public body within the meaning of the statute in Housing Auth. of Douglas v. Marbut Co., 127 Ga. App. 379 (193 SE2d 574) (1972); the Georgia Department of Transportation, a division of the State of Georgia, held to fall within the ambit of the statute in USF&G Co. v. Rome Concrete Pipe Co., 256 Ga. 661 (353 SE2d 15) (1987). From the examples in these opinions, it is clear that the nexus between public works and/or public bodies for purposes of the applicability of OCGA § 36-82-101 is closely aligned to the provision of essential government services. The federal Miller Act and its Georgia counterpart are not intended to be applied to any project which may incidentally be the recipient of some public funding.

Nothing in the record of this case indicates that the YWCA of Cobb County provides essential government services or is a division of state or local government. We hold that the YWCA of Cobb County is not a public board as contemplated by OCGA § 36-82-101 et seq., and the statute of limitation contained therein is inapplicable to this case. The judgment of the trial court in granting Bishop’s motion for summary judgment based on the statute of limitation contained in OCGA § 36-82-105 must be reversed.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Varner, Stephens, Wingfield & Humphries, William W. Hopson, Dorothy H. Bishop, for appellee.

       OCGA § 36-82-101 et seq. tracks the language of the federal Miller Act. The Georgia statute has been referred to by the parties and in previous cases construing that statute as the “Little Miller Act.”


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0978.
    MAXSON v. THE STATE.
    (423 SE2d 292)
    Decided October 2, 1992.

      Arthur J. Shelfer, Jr., for appellant.

      H. Lamar Cole, District Attorney, James E. Hardy, Mark E.

      Mitchell, Assistant District Attorneys, for appellee.
   Johnson, Judge.

Danny Lee Maxson was convicted by a jury of aggravated assault and possession of a firearm during the commission of a crime. Maxson appeals from his convictions.

In his sole enumeration of error, Maxson contends that the trial court erred in denying his motion for a directed verdict of acquittal. Although Maxson admits shooting the victim, he argues that the State failed to rebut his theory of self-defense because the State’s own evidence established that the victim had a knife on his person and was intoxicated at the time of the shooting. This enumeration is without merit.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Johnson v. State, 201 Ga. App. 88, 89 (1) (410 SE2d 189) (1991). Evidence in this case indicated that Maxson, who had been drinking beer excessively, began to get “rowdy” in a bar while in possession of a .22 caliber gun. Two witnesses testified that Maxson threatened to shoot a man in the bar. Thereafter, Maxson gave the victim a ride home in Maxson’s truck. During the ride Maxson became angry with the victim for refusing to get out of the truck. Max-son pointed his gun at the victim and ordered him to get out of the truck. Maxson claims the victim then threatened him with a knife. Maxson admits that he then shot the victim in the shoulder.

Reviewing the evidence in the light most favorable to the jury’s verdict we find that a rational trier of fact could have found Maxson guilty of aggravated assault and possession of a firearm during the commission of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying Maxson’s motion for a directed verdict of acquittal.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1008.
    DUKES v. THE STATE.
    (423 SE2d 295)
   Johnson, Judge.

Peggy Dukes, Angela Jett and Jenny Erwin were indicted for possession of cocaine. Erwin entered a guilty plea to the charge and was the State’s primary witness at the trial of Dukes and Jett. Erwin testified that she, Dukes and Jett smoked cocaine at Dukes’ apartment. They then left the apartment in Erwin’s automobile and purchased more cocaine. The threesome smoked the cocaine in the car, after which they were arrested by police officers who found cocaine and a device for smoking cocaine in the car. According to Erwin, these events took place over a period of less than one hour. Dukes and Jett presented no evidence. The jury returned a verdict of guilty of possession of cocaine against both Dukes and Jett. Dukes appeals her conviction.

1. Dukes asserts in her first enumeration of error that her character was impermissibly placed in issue when the trial court allowed Erwin to testify that she, Dukes and Jett smoked cocaine in the apartment prior to their arrest. “When transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction as that for which the accused is being tried, they are admissible as a clear exception to the general rule of inadmissibility of other transactions. [Cits.] The allegedly separate events are admissible in evidence when they are part of a continuous course of conduct, closely connected in time, place and manner of commission. [Cits.]” Kennedy v. State, 193 Ga. App. 784, 785-786 (1) (389 SE2d 350) (1989). Erwin testified that she, Dukes and Jett smoked cocaine in Dukes’ apartment, and, less than an hour later, they were arrested after purchasing and smoking more cocaine. These incidents were part of a continuous course of conduct; they are so connected in time and event as to be part of the same transaction. Thus, the trial court did not err in allowing Erwin’s testimony.

Although not enumerated as error, Dukes also argues that Erwin’s testimony was evidence of a similar transaction and the State failed to give proper notice of its intent to present such evidence. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. [Cit.]” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991). Moreover, this argument was not raised in the court below and therefore cannot be considered for the first time on appeal. Miller v. State, 201 Ga. App. 374, 375 (2) (411 SE2d 112) (1991).

Decided October 2, 1992.

Whelchel, Dunlap & Gignilliat, W. Andrew Maddox, for appellant.

C. Andrew Fuller, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

2. Dukes contends that the trial court erred in refusing to give her requested charge to the jury that the owner of a vehicle is presumed to be in possession of the vehicle’s contents. “In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), of reserving the right to object on motion for new trial or on appeal.” (Citations and punctuation omitted.) Concepcion v. State, 200 Ga. App. 358, 361 (3) (408 SE2d 130) (1991); Crosby v. State, 188 Ga. App. 191, 194 (6) (372 SE2d 471) (1988). Here, upon inquiry by the trial court, Dukes’ counsel neither objected to the court’s failure to give the charge now complained of, nor reserved the right to later object to the charge. As Dukes waived the right to object to the charge, we are without authority to address this enumerated error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1091.
    FULMER v. THE STATE.
    (423 SE2d 300)
   Johnson, Judge.

Broadus Walton Fulmer was convicted of kidnapping and rape. His motion for a new trial was denied and he appeals.

1. Fulmer contends that the trial court erred in admitting testimony from a forensic serologist as to the average length of time that spermatozoa remain in the vaginal cavity after sexual intercourse because the State did not provide this information to Fulmer in response to his pre-trial request, pursuant to OCGA § 17-7-211, for discovery of the State’s written scientific reports. As the information testified to by the expert witness was not in writing, OCGA § 17-7-211 does not apply. State v. Mulkey, 252 Ga. 201 (1) (312 SE2d 601) (1984); Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983). Accordingly, the trial court did not err in allowing this testimony.

2. Fulmer enumerates as error the trial court’s refusal to suppress two incriminating statements made by him while in custody. Fulmer claims that the State failed to show that the statements were made voluntarily or that he waived his constitutional rights. A trial court’s factual and credibility determinations as to the voluntariness of an incriminating statement and as to a defendant’s knowing and intelligent waiver of his rights must be accepted by appellate courts unless such determinations are clearly erroneous. Stacy v. State, 201 Ga. App. 256 (1) (410 SE2d 812) (1991); Gurlaskie v. State, 196 Ga. App. 794 (2) (397 SE2d 66) (1990). Fulmer, the officer who conducted both interviews of him and an officer who was present at one of the interviews testified at the Jackson v. Denno hearing. Fulmer claimed that he did not remember being interviewed because he had taken pain medication for gunshot wounds inflicted by his daughter, the kidnap and rape victim. The officer who interviewed Fulmer testified that prior to both interviews Fulmer was advised of his Miranda rights, no threats or promises were made to Fulmer, he appeared to understand his rights and so stated, and he agreed to talk to the officer. The State played a tape recording of the first interview for the court. The officer who witnessed the second interview verified that at that interview Fulmer was advised of his rights and made a knowing and voluntary waiver of those rights. Under these circumstances, the trial court’s finding that Fulmer freely and voluntarily waived his constitutional rights was not clearly erroneous. See Askew v. State, 193 Ga. App. 61 (3) (387 SE2d 25) (1989).

Decided October 2, 1992.

Charles R. Sheppard, for appellant.

3. Fulmer next argues that the trial court erred in denying his motion for a mistrial on the ground that the testimony of a defense witness improperly placed his character into evidence. During cross-examination by the prosecutor, the witness testified that Fulmer had touched him “in private places.” Fulmer objected to the testimony and moved for a mistrial; The court denied Fulmer’s motion, but gave curative instructions to the jury telling them that the testimony was improper and directing them to disregard it. “Where a witness voluntarily injects into the trial improper and prejudicial matters, whether a mistrial must be granted or whether the effect can be corrected by instructions to the jury is a matter within the discretion of the trial court. The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact.” (Citations and punctuation omitted.) Hicks v. State, 196 Ga. App. 25, 26 (2) (395 SE2d 349) (1990). Here, the trial court gave curative instructions that were sufficient to prevent the testimony from having a prejudicial impact on the jury’s verdict. Accordingly, the court did not err in denying Fulmer’s motion for a mistrial.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Katherine F. Bond, Assistant District Attorneys, for appellee.


author: Beasley, Judge.

text:
    A92A1098.
    DALCOR MANAGEMENT, INC. v. SEWER ROOTER, INC.
    (423 SE2d 419)
   Beasley, Judge.

Attorney fees and interest are the issues of concern brought to this court.

Sewer Rooter sued to recover $31,019.31 on an account, plus interest, attorney fees and expenses of litigation for work it had performed in investigating and making emergency repairs to a broken sewer line on Dalcor’s property. Dalcor’s defense was that certain of the services were unauthorized or unnecessary and that the reasonable value is considerably less than the amount invoiced.

The trial court granted partial summary judgment to Sewer Rooter for services invoiced at $20,019.31, plus interest accruing 30 days from the date of each invoice pursuant to OCGA § 7-4-16, and 15 percent attorney fees under OCGA § 13-1-11. A factual question, whether the hauling away of 40 tank truck loads of sewage at $275 per load (total $11,000) was necessary and reasonable, was reserved for trial.

A bench trial yielded an award to Sewer Rooter of $7,100 for pumping and hauling sewage (reduced by $275 to accommodate a miscalculation in the summary judgment order), prejudgment interest of $7,054.62, and attorney fees of 15 percent of the principal. Both judgments are appealed.

1. Sewer Rooter’s summary judgment motion was not accompanied by a “statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried,” as required by USCR 6.5. Sewer Rooter supplemented its motion with a statement which set forth its theories of recovery but did not specify a claim for prejudgment interest and attorney fees. Dalcor contends that the lack of notice was prejudicial and that summary judgment should have been barred for these items.

“A plaintiff who is entitled to a summary judgment on a document establishing ‘evidence of indebtedness,’ within the meaning of OCGA § 13-1-11 (a) ‘is also entitled to a judgment for attorney fees thereon.’ [Cit.]” Woods v. Gen. Elec. Credit Auto Lease, 187 Ga. App. 57, 61 (2) (369 SE2d 334) (1988). Interest and attorney fees in connection with collection of the indebtedness were not separate “theories of recovery” as contemplated under Rule 6.5. Nor was respondent Dalcor deprived of notice that these damages were being sought since they and their statutory bases were specified in the complaint. The failure to state those claims in “ ‘ “a separate pleading resulted in no confusion or disadvantage to [respondent] in defending the motion.” (Cit.)’ ” Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (3) (380 SE2d 61) (1989).

2. Dalcor contends that attorney fees were not authorized under OCGA § 13-1-11 because Sewer Rooter failed to comply with the notice requirements of OCGA § 13-1-11 (a) (3). It requires the holder or his attorney to “notify in writing . . . [the] party sought to be held on such obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that . . . the party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees.” See General Elec. Credit Corp. v. Brooks, 242 Ga. 109 (242 SE2d 596) (1978).

Plaintiff Sewer Rooter’s attorney provided written notice in a letter referencing each unpaid invoice and foregoing OCGA § 13-1-11 attorney fees if the indebtedness was paid within ten days of the letter’s receipt. The fact that the demand was made in the name of the first corporate entity did not render the notice insufficient. That name appeared only on the first job invoice which, along with all other subsequent invoices on Sewer Rooter’s forms was referenced in the demand letter.

Notice and the opportunity to pay without incurring attorney fees was also given in the complaint. See Shier v. Price, 152 Ga. App. 593, 595 (2) (263 SE2d 466) (1979). Notice requirements were satisfied as what was done instituted at least substantial compliance with OCGA § 13-1-11 (a) (3). See Albany Prod. Credit Assn. v. Sizemore, 175 Ga. App. 826 (334 SE2d 872) (1985).

3. Sewer Rooter was forced to place the matter in the hands of an attorney to collect on the invoices, the majority of which were not in dispute.

Dalcor nevertheless claims that an award of attorney fees was unauthorized because Sewer Rooter necessitated the litigation as a result of its own bad faith and stubborn litigiousness. It cites no legal basis to support its position that it is not bound by its contractual obligation for attorney fees. They were sought and properly awarded solely under OCGA § 13-1-11, not under OCGA § 13-6-11, which allows for recovery of bad faith expenses of litigation in a contract action “where the plaintiff has specially pleaded and has made prayer therefor. . . .” Bad-faith attorney fees are not in issue here.

4. Dalcor contends interest pursuant to OCGA § 7-4-16 should have been precluded because the damages were not liquidated.

“Prejudgment interest is allowable only where the amount recovered is liquidated, i.e., certain and fixed, ‘a sum which cannot be changed by the proof.’ [Cit.]; OCGA § 7-4-15.” Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 51 (3) (305 SE2d 864) (1983). “ ‘A debt is liquidated when it is certain how much is due and when it is due. (Cit.)’ [Emphasis in original.] [Cit.] In the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable.” Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988).

Decided October 2, 1992.

Smith & Fleming, Robert O. Fleming, Jr., for appellant.

Jonathan Goldberg, for appellee.

The invoices covered by summary judgment were a due and payable liquidated debt on a commercial account, subject to prejudgment interest under OCGA § 7-4-16. See American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 710 (391 SE2d 688) (1990).

However, the entire debt was not liquidated; the sewage removal charges were contested as unreasonable and adjusted. The award as to them was based by the court on the theory of quantum meruit. That amount owed was in dispute and changed by the proof. The amount claimed was rendered unliquidated by the defense, which contested value, so OCGA § 7-4-15 prejudgment interest was not authorized. Accord Spears v. Allied Engineering Assoc., 186 Ga. App. 878 (2) (368 SE2d 818) (1988). Compare Jordan Bridge Co. v. I. S. Bailey, Jr., Inc., 164 Ga. App. 124 (296 SE2d 107) (1982), where the amount due was uncertain only because of an offset rather than a challenge to the value of the debt itself.

The judgment is affirmed on condition that Sewer Rooter write off $7,054.62 improperly awarded as prejudgment interest under OCGA § 7-4-16; otherwise judgment reversed.

5. Appellee’s motion for frivolous appeal damages is perforce denied.

Judgment affirmed on condition.

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


text:
    A92A1116.
    TUCKER v. THE STATE.
    (423 SE2d 422)
   Johnson, Judge.

David Tucker was convicted by a jury of six counts of burglary and one count of theft by bringing stolen property into the state. He appeals his conviction.

In his sole enumeration of error, Tucker contends that the circumstantial evidence presented at trial which corroborated the testimony of his accomplice was insufficient to support the jury’s guilty verdicts. We disagree. “ ‘Although a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. (Cit.)’ [Cit.]” Sanchez v. State, 203 Ga. App. 61, 62 (1) (416 SE2d 139) (1992). “Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.” (Punctuation and citations omitted.) Edwards v. State, 200 Ga. App. 580, 584 (4) (408 SE2d 802) (1991). Vernon “Buddy” Ryals testified at trial that he and Tucker committed a series of burglaries in August and September 1991, stealing jewelry, silverware, VCRs and other items which they would exchange for crack cocaine and cash. The pair would travel in Tucker’s red Chevy Nova to rural residences identified by Tucker. They would then attempt to pry open a door or window with a screwdriver. If that method of entry failed, they would kick a door or window out in order to gain entry. Ryals identified a large yellow-handled screwdriver as the instrument which they used to pry open doors and windows. A screwdriver, such as the one described by Ryals, was found by police in Tucker’s car at the time of his arrest. Numerous victims testified that their doors appeared to have been pried open with a screwdriver or similar instrument. A car stereo, which was identified as one of the stolen items, was found installed in Tucker’s car. Tucker’s car was seen by a testifying detective at the location described by Ryals as the location in Florida where the goods were traded for drugs.

Although he did not admit stealing the goods, Tucker corroborated Ryals’ testimony himself by admitting that he had voluntarily transported Ryals to sell various items which other witnesses testified had been stolen from their homes. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation and citations omitted.) Bennett v. State, 202 Ga. App. 699 (415 SE2d 310) (1992).

“The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter óf law, that the verdict is contrary to the evidence.” (Punctuation and citations omitted.) Sanchez, supra at 63. Reviewing the evidence in the light most favorable to the jury’s determination, we conclude that the evidence was sufficient to authorize the jury’s finding that Tucker was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 2, 1992.

Andrews & Seery, S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, Mark Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1282.
    HARMON v. THE STATE.
    (423 SE2d 302)
   Carley, Presiding Judge.

Appellant was tried before a jury on an accusation charging him with violating “§ 33-5-10 of the Ordinance[s] of Fulton County in that he did locate an adult entertainment premises within 1000 feet of the boundaries of a residence.” He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds. The evidence is undisputed and shows the following: Appellant’s application for a liquor license was granted and, in January 1990, he opened a bar and restaurant. Then, as now, § 33-5-11 (5) of the Fulton County ordinances enumerated certain acts which “[n]o licensee shall permit on the licensed premises any person to perform. . . .” The prohibited conduct under § 33-5-11 (5) includes certain sexual acts, the touching or caressing of particular body parts, and partial or total nudity. However, the language of § 33-5-11 (5) tracks that of former OCGA § 3-3-41, which was held unconstitutional in Harris v. Entertainment Systems, 259 Ga. 701 (386 SE2d 140) (1989). Acting upon the assumption that § 33-5-11 (5) would be no more constitutional and enforceable than the state statute, appellant began to feature nude dancing at his establishment in August 1990. In September 1990, § 33-5-10 of the Fulton County ordinances, relating to the location of premises for which issuance of a license to serve liquor was being sought, was amended to add a new subsection (b). That amendment provides, in relevant part, that “[n]o adult entertainment premises shall be licensed to sell alcoholic beverages if it shall be located within 1000 feet of the boundaries of any residential . . . zoning district. . . .” It was appellant’s alleged violation of this amendment to § 33-5-10 which underlay the instant prosecution.

It is readily apparent that nothing in § 33-5-10 (b) purports to prohibit any act whatsoever by appellant in his capacity as the holder of an existing liquor license. By its terms, that ordinance relates solely to the county’s issuance of a liquor license and provides that no such license shall be issued to adult entertainment premises located within certain geographic areas. Under this ordinance, appellant would not be entitled to a liquor license for his adult entertainment premises if he were seeking one from the county. However, appellant has a liquor license which predates § 33-5-10 (b) and nothing under the terms of that ordinance prohibits him from featuring nude dancing at his bar and restaurant. It is § 33-5-11, not § 33-5-10, which enumerates those acts which no holder of a liquor license shall allow to occur on the licensed premises. Accordingly, if appellant is guilty of any criminal offense, it must be by virtue of his violation of § 33-5-11, since § 33-5-10 (b) merely restricts the county’s administrative act of issuing liquor licenses rather than the conduct to be condoned by licensees on licensed premises.

The county cannot forgo an attempted prosecution of appellant under the possibly unconstitutional § 33-5-11 by urging that § 33-5-10 (b) is itself a criminal provision which prohibits appellant, in his capacity as a holder of an existing liquor license, from featuring nude dancing at his bar and restaurant. Ordinances “are to be liberally construed in favor of those accused thereunder. . . .” Pennington v. City of Sparta, 15 Ga. App. 287 (2) (82 SE 826) (1914). Under the applicable rules of construction, § 33-5-10 (b) is clearly nothing more than a mere administrative licensing ordinance rather than a criminal provision. “ ‘Where, as here, the language of [an ordinance] is plain, unambiguous and positive, and is not capable of two constructions, no court has a right to construe it to mean anything other than what it declares, and this rule, of course, precludes the courts from construing it according to what is supposed to be the legislative intent.’ [Cit.]” Atlanta & West Point R. Co. v. Underwood, 218 Ga. 193, 196 (2) (126 SE2d 785) (1962).

It follows that appellant’s conviction must be reversed. His act of featuring nude dancing at his bar and restaurant may have been in violation of § 33-5-11 (5), but he was not tried and convicted for violating that ordinance. He was found guilty of violating § 33-5-10 (b), but that ordinance proscribes no act which appellant was shown to have committed. “ ‘Just as “Conviction upon a charge not made would be sheer denial of due process,” so is it a violation of due process to convict and punish a man without evidence of his guilt.’ [Cit.]” Bullock v. City of Dallas, 248 Ga. 164, 170 (4) (281 SE2d 613) (1981).

2. Appellant’s remaining enumerations of error are moot.

Judgment reversed.

Pope and Johnson, JJ., concur.

Decided October 2, 1992.

Richard G. Harwell, Sr., George E. Butler II, for appellant.

James L. Webb, Solicitor, R. Lee O’Brien, Jr., Helen A. Roan, Assistant Solicitors, for appellee.


text:
    A92A1341.
    JEFFERSON v. THE STATE.
    (423 SE2d 425)
   Beasley, Judge.

Jefferson was convicted of 16 counts of armed robbery, 5 counts of rape, 10 counts of aggravated assault, 3 counts of aggravated sodomy, and 23 other offenses for which he was sentenced to 24 life terms and 375 years to run consecutively. The convictions and judgment were affirmed on appeal by this court. Jefferson v. State, 199 Ga. App. 594 (405 SE2d 575) (1991). The sentence was affirmed by the superior court’s sentence review panel. He filed a “petition to correct void sentences” pro se in the sentencing court. He appeals pro se from the order denying that petition.

1. Although appellant did not challenge the validity of his sentence in his first appeal, “ ‘if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time.’ [Cit.]” Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991). See also McCranie v. State, 157 Ga. App. 110, 111 (3) (276. SE2d 263) (1981), which holds that although habeas corpus would have been an appropriate remedy to determine the validity of a sentence, it is not necessarily an exclusive or sole remedy; such an action may be brought in the trial court.

2. Appellant enumerates as error the trial court’s failure to conduct a presentence hearing as required under OCGA § 17-10-2 (a).

Immediately after receipt of the verdict, appellant was called to stand before the court and the court, after commenting briefly, summarily imposed upon him “the maximum sentence that . . . can [be] impose[d] in each of these crimes to run consecutive.” '

OCGA § 17-10-2 (a) mandates a presentence hearing to determine the appropriate punishment. The judge is to give opportunity for the parties to offer additional evidence and argument in extenuation, mitigation, and aggravation of punishment. It is mandatory. DeLoach v. State, 142 Ga. App. 666, 667 (2) (236 SE2d 904) (1977); Raymond v. State, 168 Ga. App. 487, 488 (309 SE2d 669) (1983).

No such hearing was conducted, and neither party protested nor even spoke. However, the “[f]ailure to follow the mandate of [OCGA § 17-10-2 (a)] is neither harmless nor waived by failure to object to procedure.” Sprouse v. State, 242 Ga. 831, 834 (5) (252 SE2d 173) (1979). See also Howard v. State, 161 Ga. App. 743 (6) (289 SE2d 815) (1982), applying Sprouse, a death penalty case, to non-capital felony prosecutions. Accord Brinson v. State, 201 Ga. App. 80 (2) (410 SE2d 50) (1991). Accordingly, the judgment of sentence is reversed and the case is remanded to the trial court for resentencing in accordance with OCGA § 17-10-2 (a).

Decided October 2, 1992.

John A. Jefferson, pro se.

Michael C. Eubanks, District Attorney, Richard E. Thomas, As sistant District Attorney, for appellee.

3. Appellant contends that the trial court erred in imposing recidivist punishment where he had not been indicted as a recidivist. The issue may recur in resentencing so it is addressed.

OCGA § 17-10-1 (a) (1) authorizes the trial judge to impose sentence “within the minimum and maximum prescribed by law as the punishment for the crime.” The recidivist statute, OCGA § 17-10-7, mandates the imposition of maximum punishment in certain instances with respect to multiple offenders.

In imposing sentence the court remarked, “Mr. Jefferson, you have been convicted of the most heinous criminal acts I have ever come in contact with in my fifty-two years as a member of this bar and as Judge of this Court. You’re a recidivist criminal. Your conduct speaks for itself. . . . There are simply no mitigating circumstances in this case. . . . I’m going to give you the maximum sentence that I can impose in each of these crimes to run consecutive.”

Appellant’s prior felony convictions were not used against him during sentencing for legislatively-imposed recidivist punishment. That is, the Court did not fix the term on the basis that it was required to do so as a matter of public policy under OCGA § 17-10-7. Instead, the trial court imposed maximum punishment allowable by law based on an exercise of its judicial discretion as applied to the facts of the case and the aggravating factor of defendant’s history of crime. See Brown v. State, 144 Ga. App. 509, 510 (241 SE2d 621) (1978); compare State v. Freeman, 198 Ga. App. 553 (402 SE2d 529) (1991). The legislative branch’s determination that repeat offenders should bear a certain more severe penalty when they are indicted for this at the request of the executive branch (district attorney), which has been unable to rehabilitate them through its corrections department, does not deprive the judicial branch of the discretion to impose the same degree of punishment because of a background which includes criminal behavior. See OCGA § 17-10-2 (a).

Judgments of conviction affirmed; sentences are reversed; and case remanded.

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


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A92A1418.
    DUKE v. THE STATE.
    (423 SE2d 427)
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of misdemeanor obstruction of an officer in violation of OCGA § 16-10-24 (a). She appeals from the judgment of conviction and sentence entered by the trial court on its finding of her guilt, and enumerates only the general grounds.

The evidence in the instant case, when construed most favorably for the State, would authorize a finding that, when officers went to appellant’s home with a warrant for the arrest of another individual, she knowingly lied and informed them that the arrestee was not there. Citing Samples v. State, 151 Ga. App. 179 (259 SE2d 178) (1979), appellant urges that this evidence is not sufficient to authorize her conviction, because she merely lied to the officers and did not employ words which could be construed as “forcible resistance or opposition to the officers] in the performance of [their] duties.” (Emphasis supplied.)

Samples was decided under former OCGA § 16-10-24. In 1986, however, former OCGA § 16-10-24 was stricken and replaced by existing OCGA § 16-10-24. Ga. L. 1986, p. 484. Existing OCGA § 16-10-24 (b) now provides that the act of “offering or doing violence to the person” of an officer who is in the performance of his official duties is guilty of a felony. There is certainly no evidence that appellant offered to do any violence to the officers by threatening them with physical force. However, appellant was not convicted of felony obstruction in violation of existing OCGA § 16-10-24 (b). She was convicted of misdemeanor obstruction in violation of existing OCGA § 16-10-24 (a). That statute provides that a “person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties [other than by offering or doing violence to his person] is guilty of a misdemeanor.” Accordingly, Samples is inapplicable because “the offense of misdemeanor obstruction [under existing OCGA § 16-10-24 (a) no longer] contain[s] the element of ‘violence’ (as does the offense of felony obstruction [under existing OCGA § 16-10-24 (b)]). . . .” Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399) (1990).

Despite the fact that former OCGA § 16-10-24 was replaced in 1986 and it is now necessary to show that violence was offered or done only in the case of felony obstruction, Samples has continued to be cited as authority for the proposition that a conviction for misde meanor obstruction under existing OCGA § 16-10-24 (a) requires evidence of forcible resistance or opposition. See Hendrix v. State, 202 Ga. App. 54 (1) (413 SE2d 232) 1991); Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990); Patterson v State, 191 Ga. App. 359 (1) (381 SE2d 754) (1989). To the extent that these or any other cases stand for the proposition that a conviction for misdemeanor obstruction under existing OCGA § 16-10-24 (a) requires evidence that violence was offered or done, they are erroneous and hereby overruled. A conviction for felony obstruction under existing OCGA § 16-10-24 (b) requires proof that the accused offered or did violence to the person of an officer, but a conviction for misdemeanor obstruction under existing OCGA § 16-10-24 (a) does not. Williams v. State, supra at 156 (1).

In Hudson v. State, 135 Ga. App. 739, 743 (3) (218 SE2d 905) (1975), it was held that the act of wilfully lying to an officer, who is attempting to execute an arrest warrant, as to the present location of the arrestee “could hinder an officer while he was attempting to carry out his duties of serving a warrant.” Hudson was decided under former OCGA § 16-10-24 and appellant urges that its holding is erroneous because it ignores the element of force which was required to secure a conviction under that former statute. However, even assuming that Hudson was erroneously decided under former OCGA § 16-10-24, it is nevertheless clear that force or violence is not an element of misdemeanor obstruction under existing OCGA § 16-10-24 (a) and that verbal exchanges without threats of force and violence can authorize a conviction under that statute. See Herren v. State, 201 Ga. App. 509, 510 (1) (411 SE2d 552) (1991); Bailey v. State, 190 Ga. App. 683 (379 SE2d 816) (1989). Wilfully lying to an officer, who is attempting to execute an arrest warrant, as to the present location of the arrestee does not constitute a mere verbal exchange. As verbal threats of force and violence can hinder an officer and authorize a felony conviction under existing OCGA § 16-10-24 (b), lying with the intent of misdirecting him as to the performance of his official duties can certainly constitute a hinderance and authorize a misdemeanor conviction under existing OCGA § 16-10-24 (a).

Whether or not appellant’s lie had the effect of hindering or obstructing the officers in making the arrest was for the trior of fact to decide. Sapp v. State, 179 Ga. App. 614, 615 (1) (347 SE2d 354) (1986). “The trial court was authorized to find that appellant’s [lie as to whether the arrestee was present in her home] . . . actually hindered and obstructed [the] [o]fficer[s] ... in [their efforts to make the arrest]. Therefore, applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of obstruction of an officer.” Bailey v. State, supra at 684.

Decided October 2, 1992.

Garland B. Cook, Jr., for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I agree with the majority’s analysis except with respect to Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990). Samples was not cited for the proposition that there had to be violence to the officer or the threat of violence to the officer, but rather “forcible resistance or opposition” such as the flight from the officer after being ordered to halt. The last paragraph of Cason confirms this. As said earlier in that opinion, “[s]uch actions [of forcible resistance or opposition] may take the form of . . . flight from the officer after being ordered to halt.”

It should not be considered overruled because it did not require evidence that violence was offered or done. It affirmed the conviction upon finding sufficient the “[e]vidence that [Cason] fled from the officer after being ordered to remove his hand from his pocket and step forward. . . .” (Emphasis supplied.)


text:
    A92A1429.
    CRAIG v. THE STATE.
    (423 SE2d 417)
   Johnson, Judge.

Deborah Craig appeals her conviction of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and driving with a blood-alcohol concentration greater than 0.12 grams (OCGA § 40-6-391 (a) (4)). This appeal follows the denial of a motion for a new trial.

1. Craig contends that the trial court erred in granting the state’s motion in limine excluding testimony of witnesses being offered for the purpose of showing personal bias against Craig on the part of the arresting officers. Prior to trial, Craig indicated that she planned to introduce testimony showing that the arresting officer’s wife had worked with Craig’s mother three years before the arrest, and that the unsatisfactory work relationship had caused the officer to indicate that he would seek to retaliate in some fashion against either Craig or her mother. Craig also intended to offer evidence that she had spurned social advances by the officer who operated the intoximeter machine, and that this rebuff may have caused him to harbor some prejudice against her. Further, both of the officers had previously had contact with the defendant in connection with “other problems that she’s had in a criminal nature.”

The evidence introduced at trial established that Craig was stopped after the car she was driving was observed weaving in traffic and crossing the centerline several times. A field test indicated the presence of alcohol and Craig was placed under arrest. She was transported to the police department where the results of an intoximeter test revealed a .14 blood-alcohol level. No evidence was proffered which would intimate that either the officer making the arrest or the one administering the intoximeter test deviated from standard procedures at any time.

“Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” Horne v. State, 125 Ga. App. 40, 41 (186 SE2d 542) (1971). The trial court excluded evidence which it deemed irrelevant to the proof of the essential elements of the offense, and which might have come perilously close to impermissibly placing the defendant’s character in evidence if explored in their entirety. “Evidence must relate to the questions being tried by the jury. . . .” OCGA § 24-2-1. Accordingly, the trial court did not err in excluding the evidence regarding the defendant’s previous encounters with the arresting officers.

2. Craig also asserts that the trial court erred in denying her motion to strike four jurors for cause who indicated during voir dire that they were opposed to the use of alcohol. “Whether to strike a juror for favor lies within the sound discretion of the trial court, and absent manifest abuse of that discretion, appellate courts will not reverse.” (Punctuation and citations omitted.) Gilstrap v. State, 199 Ga. App. 223 (1) (404 SE2d 629) (1991). The voir dire portion of the trial was not reported. “[W]e will not presume error from a silent record. The defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.” (Punctuation and citations omitted.) Wood v. State, 199 Ga. App. 252 (1) (404 SE2d 589) (1991). The State appears to stipulate that four potential jurors indicated their disapproval of the use of alcohol but states that all four potential jurors responded affirmatively when asked by the court if they could lay aside their opinions about alcohol and try the case based solely on the evidence. Absent a record evidencing the alleged error of the trial court, there is nothing before us which establishes that the trial court abused its discretion in refusing to strike these veniremen for cause.

Decided October 2, 1992.

Moore & Moore, Theron M. Moore, for appellant.

Robert E. Turner, Solicitor, Cynthia T. Adams, Carl A. Veline, Jr., Assistant Solicitors, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1471.
    WALKER v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (423 SE2d 299)
   Carley, Presiding Judge.

Appellant-plaintiff filed suit against John Doe and appellee-defendant served in its capacity as her uninsured motorist carrier. Appellee answered in its own name and moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

There was no physical contact between John Doe’s and appellant’s vehicles. The statutory law regarding uninsured motorist coverage provides that “physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” OCGA § 33-7-11 (b) (2). Under the undisputed evidence of record, there is no eyewitness corroboration such as would satisfy OCGA § 33-7-11 (b) (2). See Rogers v. Schuman-Mann Supply Co., 197 Ga. App. 59 (1) (397 SE2d 463) (1990); National Sur. Corp. v. O’Dell, 195 Ga. App. 374, 375-376 (393 SE2d 504) (1990). Compare Garrett v. Standard Guar. Ins. Co., 201 Ga. App. 251 (410 SE2d 806) (1991).

However, appellee’s liability is contractual, not statutory. Accordingly, unless the policy issued by appellee to appellant actually limits uninsured motorist coverage in the manner authorized by OCGA § 33-7-11 (b) (2), appellant’s failure to have produced corroborative evidence in accordance therewith would be immaterial. “[Ujnder the specific terms of the policy issued to [appellant] by appellee, she [may be] afforded more liberal uninsured motorist coverage than would be mandated by OCGA § 33-7-11 (b) (2). . . . ‘Under basic principles of contract law it is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from, or more liberal than, those prescribed in the statute or statutes.’ [Cit.] Thus, . . . ‘(w)hereas under OCGA § 33-7-11 (b) (2) . . . ,) the contract between [appellant] and (appellee) could have been written so as to exclude (her) from coverage . . . , the . . . language of the contractual provisions ... of the policy (that appellee issued) [may bring] (her) within the document’s coverage.’ [Cit.]” (Emphasis supplied in part.) Maxwell v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 545, 546-547 (2) (396 SE2d 291) (1990).

Decided October 2, 1992.

Lamb & Associates, T. Gordon Lamb, S. Robert Hahn, Jr., for appellant.

Bovis, Kyle & Burch, W. Bruce Barrickman, Michaela S. Young, John K. Fitzgerald, for appellee.

The burden was on appellee, as the movant for summary judgment to show that no genuine issue of material fact remained. In support of its motion, however, appellee did not introduce a copy of the policy that it issued to appellant and a copy of that policy does not otherwise appear of record. It follows that appellee failed to show the applicability of the corroboration requirement authorized by OCGA § 33-7-11 (b) (2) and that the trial court erred in granting summary judgment in favor of appellee. Compare Carter v. Early Am. Ins. Co. of Montgomery, Ala., 191 Ga. App. 820 (383 SE2d 185) (1989); Lauer v. Bodner, 137 Ga. App. 851, 852 (2) (225 SE2d 69) (1976).

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A1590.
    OKROSS v. THE STATE.
    (423 SE2d 291)
   Johnson, Judge.

Stephen Okross was convicted by a jury of driving under the influence and striking a fixed object. He appeals from his conviction and the denial of his motion for new trial.

We are troubled by the procedural posture of this case. An order denying Okross’ motion for a new trial was entered by the trial court on March 5, 1992. That order was vacated, however, on March 12, 1992. Okross alleges in his appeal that the motion for a new trial “was denied on April 2, 1992 at an evidentiary hearing.” Overlooking that a hearing on a motion for new trial in this case would not be an evidentiary hearing since there is no assertion of newly discovered evidence, no order reflecting the denial of the motion is included in the record on appeal.

“Even without a motion to dismiss the appeal, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt.” (Citations and punctuation omitted,) Royal v. State, 189 Ga. App. 756, 757 (1) (377 SE2d 526) (1989). In Royal as well as in Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987) and Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988), the notice of appeal preceded the entry of the denial of a motion for new trial. In all those cases the notice of appeal became effective upon the entry of the final judgment.

Decided October 2, 1992.

Fletcher W. Griffin III, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

This court endeavors to review criminal appeals on their merits. See Eller, supra. Despite numerous inquiries from the office of the clerk of this court, no final order denying the motion for new trial has been submitted to supplement the record prior to our consideration of the case. According to the records of the Clerk of the State Court of Gwinnett County, no such order has been filed. In the absence of a final order, we are constrained to hold that no final judgment has been entered in the case and jurisdiction remains vested in the trial court.

Appeal dismissed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1647.
    HOLLAND v. THE STATE.
    (423 SE2d 694)
   Beasley, Judge.

Michael Holland and his cousin Mark were jointly indicted for manufacturing marijuana. OCGA § 16-13-30 (j) (1). Michael was convicted and challenges the sufficiency of the evidence and the validity of certain jury charges.

1. The evidence proves that Michael manufactured marijuana.

On a tip, sheriff’s deputies, GBI agents, and drug task force members found marijuana growing in two wooded patches near Michael’s home. It is on seven acres owned by his father which had been used by family as a residence for forty to fifty years.

One patch was located along an old firebreak about 600 yards from the house. A trail or path led from the back of the house to this patch and ended at the last plant. The officers arrested Mark after observing him pull up some marijuana plants from this patch. He stated that he was stealing Michael’s plants.

An officer testified that Michael denied any knowledge of this marijuana plant and said that wire cages in his yard were for tomato plants. The officer asked Michael to show him the tomato plants, and Michael led him through a path of dog fennel to them. A trail leading from the tomato plants disclosed the other marijuana patch, with plants growing inside wire cages similar to those in the back yard. It was less than 100 yards from the house.

Twenty-one marijuana plants weighing two pounds ten ounces were seized from the patches. Drying marijuana leaves (less than one ounce) were found in a disabled vehicle parked in the yard.

Michael testified that as he was being arrested, he saw an officer put the wire in the yard and that he had been told this officer was out to get him. He responded to cross-examination about the paths from his yard to the marijuana patches that “[t]here are paths all over that place out there. There’s three wheeler- paths, there’s paths, dog paths. They searched all the paths.” When asked whether he believed that someone, such as the officer, would come out to his land and plant the marijuana, he responded that it was possible.

To warrant a conviction on circumstantial evidence alone the proved facts must not only be consistent with guilt but they must exclude every other reasonable hypothesis save that of guilt. Head v. State, 169 Ga. App. 947, 949 (315 SE2d 669) (1984). Whether there exist reasonable hypotheses save that of guilt is for the jury, unless the verdict is insupportable as a matter of law. Butler v. State, 150 Ga. App. 751, 753 (258 SE2d 691) (1979).

The verdict is not insupportable as a matter of law. “[T]he ‘beaten path’ doctrine . . . allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband. [Cits.]” Franklin v. State, 166 Ga. App. 375, 376-377 (1) (304 SE2d 501) (1983); compare Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979). Construed in a light most favorable to the verdict, the evidence as a whole was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jones v. State, 201 Ga. App. 102, 103 (2) (410 SE2d 199) (1991).

2. There is no merit in the contention that the trial court erred in instructing the jury on parties to a crime, in accordance with OCGA § 16-2-20 (a), (b) (1), (3), and (4), and OCGA § 16-2-21.

Given the proximity of the patches to Michael’s residence and the paths to them and his control of the premises, and given the fact that Mark knew of one of the marijuana patches and was seen pulling such plants in it, even if resident Michael did not plant or tend the patch, the jury could have found that Michael was at least an indirect party to the act of manufacturing marijuana.

“ ‘(W)here the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge (as to parties to a crime). . . .’ [Cit.]” Lovell v. State, 189 Ga. App. 311, 312 (1) (375 SE2d 658) (1988).

3. It was not reversible error to refuse to instruct the jury that a mere suspicion of guilt is not sufficient to authorize a conviction. But it would have been the better practice to grant the request. (See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 18 (1991).) Muckle v. State, 165 Ga. App. 873, 875 (1) (303 SE2d 54) (1983), upon which appellant relies, states the legal principle contained in the request and cites OCGA §§ 24-4-5 and 24-4-6. The principles in those Code sections were charged, in essence as to the first and verbatim as to the second. The court instructed the jury on the presumption of innocence, the evidentiary burdens placed on the State, the definition of a reasonable doubt, and the requirement that to warrant a conviction on circumstantial evidence the proved facts must exclude every reasonable hypothesis save that of guilt. Thus the quantum of proof necessary was adequately included. See Kendrick v. State, 123 Ga. App. 785, 789 (3) (182 SE2d 525) (1971).

4. Appellant sought an instruction, which was refused, that “[i]n making a determination of whether any other reasonable hypothesis exists, the defendant’s explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted. [Cits.]” This principle is stated in Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981). In none of the cases appellant cited is this principle of law discussed as a jury charge. This, of course, does not mean that it would not be a proper jury charge in an appropriate case. However, this is not one of them.

Appellant’s explanation, to the effect that the police were responsible for the wire cages in his yard and marijuana on his land, was not consistent with the circumstantial evidence properly admitted. That is, it was not “a plausible explanation of the circumstances relied upon by the State. . . .” Elam v. State, 125 Ga. App. 427, 430 (2) (187 SE2d 920) (1972). Consequently, this charge was not adjusted to the evidence. See Joiner v. State, 163 Ga. App. 521, 523 (5) (295 SE2d 219) (1982).

The appellant’s evidence conflicted with that of the State, and the trial court did charge the jury that it should reconcile conflicting evidence to make all witnesses speak the truth so that perjury would be imputed to none of them, and to accept that evidence most reasonable and credible to them if it is in irreconcilable conflict. See Kendrick, supra.

5. Holland contends that the trial court erred in refusing to give his request to charge that the jury could find him guilty of possession of marijuana as a lesser included offense of manufacture.

We have no record of the charge conference. After charging the jury, the trial court asked if there were any exceptions to the charge. Appellant responded that since the trial court charged the jury that there may or may not be an independent crime of possession of marijuana “that could show motive, bent, scheme, what have you, then they could be authorized to convict him of possession of marijuana, which is a lesser included offense of manufacture.”

As authority for his request to charge, and in argument both at trial and on appeal, appellant cites State v. Alvarado, 260 Ga. 563 (397 SE2d 550) (1990). In his appellate brief he argues:

“Since the trial court charged the jury that they had heard evidence of an independent crime from that with which the appellant was charged, i.e., possession of marijuana, it was incumbent upon the trial court to charge the jury the lesser included offense of marijuana possession as requested. . . .

“It is clear in this case that the appellant’s request to charge . . . was warranted by the evidence, is a correct statement of law and, according to State v. Alvarado, supra, the failure to charge it was reversible error.” This argument is without merit.

Alvarado was charged with trafficking in cocaine. Only a single amount of cocaine was evidenced. Whether defendant actually or constructively possessed that cocaine was a contested issue of fact with evidence on both sides of the question. A finding of constructive possession would have warranted a conviction only of the lesser included offense of its simple possession. This evidentiary alternative (actual or constructive possession) necessitated the charge because it produced a legal alternative (trafficking or possession).

Holland appears to want the jury to be authorized to convict him of possessing the marijuana in the automobile instead of manufacturing the marijuana growing on the patches of land. That would end up in no verdict on the charge involving the growing marijuana and a conviction for an act with which he was not charged. Based on the indictment, the jury could only consider guilt or innocence with respect to the growing marijuana. Only if Holland had been charged also with a crime in connection with the marijuana in the automobile, would he be entitled to an instruction to the jury authorizing it to find him guilty of such. Holland has confused the office, in this case, of the evidence concerning the marijuana in the automobile. It tended to prove his growing of plants on his property because it was harvested, drying marijuana. This evidence could not serve as a basis for a conviction of an uncharged crime.

Alvarado, the single authority cited by appellant, does not support his theory. Nor does its rule require a charge on the lesser offense of possession of the growing marijuana. Alvarado states and applies the rule “that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” Id. at 564. The automobile marijuana, which the court instructed could only be considered as evidence of “identity, motive, plan, scheme, bent of mind or course of conduct” with respect to the growing marijuana, was not evidence of its simple possession by Holland as opposed to evidence of its manufacture by him. There was no issue of fact, as in Alvarado, occasioned by a conflict in evidence as to whether Holland grew the marijuana, directly or indirectly, or only possessed it. The evidence showed only that Holland either grew the marijuana or he did not. It would not support a third legal alternative, that he merely possessed but did not grow it.

In Alvarado, on the other hand, the State’s evidence showed either that Alvarado actually possessed the cocaine, in which case he would be guilty of trafficking, or that he only constructively possessed the cocaine, in which case he would be guilty of possession but not trafficking. (Of course, there is the alternative of “not guilty” of either crime.) Whether, based on the evidence, it was actual or constructive was a jury question.

The evidence in this case, and particularly the automobile marijuana which Holland relies on, did not raise a fact issue for jury resolution as to whether he “knowingly grew or manufactured marijuana,” as the judge charged, or possessed marijuana. If the jury accepted the state’s version of the facts, it would have to find that Holland manufactured marijuana, directly or indirectly as a party. A jury does not have the discretion to find defendant guilty of a lesser crime when it finds the elements which support the crime charged. That is, the evidence did not support an alternative finding, that he merely possessed but did not grow it. In contrast, in Parker v. State, 256 Ga. 543, 548 (2) (350 SE2d 570) (1986), cited approvingly in Alvarado, the evidence did support alternative findings.

If the evidence in this case required possession to be charged, it would have to be charged with every charge of manufacture, delivery, distribution, dispensing, administration, purchase, sale, or possession with intent to distribute, as a matter of law, whenever defendant possessed that drug, even if there is no issue as to whether he or she manufactured or only possessed. Inherent in any of these acts would be simple possession by defendant as a direct or indirect party to the crime. OCGA §§ 16-2-20; 16-2-21. But that possession “merges with or is included within” the greater crime, when there is evidence of the greater crime and no countervailing evidence of the lesser. See Varnes v. State, 159 Ga. App. 452, 453 (2) (283 SE2d 673) (1981).

See our other cases applying Alvarado: Walton v. State, 201 Ga. App. 118 (410 SE2d 339) (1991), and Harris v. State, 202 Ga. App. 618, 621 (4b) (414 SE2d 919) (1992).

Judgment affirmed.

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

Decided October 2, 1992.

Neil L. Heimanson, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.


author: Pope, Judge.

text:
    A92A1034.
    EMPIRE FIRE & MARINE INSURANCE COMPANY v. DOBBINS.
    (423 SE2d 396)
   Pope, Judge.

This case involves the application of a “radius of use” exclusion from coverage contained in a business automobile policy issued by appellant/defendant Empire Fire & Marine Insurance Company to appellee/plaintiff Bruce Dobbins d/b/a Dobbins Brothers Garage covering several commercial vehicles used in plaintiff’s garage. The final page of the policy contains the following language:

“THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

“RADIUS OF USE — LIMITATION

“For the reduced premium in the declarations or in an attached endorsement,

“A. The insurance coverages under this policy do not apply: when a covered auto is operated beyond the mileage limitation shown under ‘Radius of Use’ in Item 4 of the declarations or in an attached endorsement.

“B. ‘Radius of Use’ will be determined from the location where the covered auto is principally garaged.”

The declarations page states that the radius of use is 200 miles.

On March 7, 1989, one of the insured vehicles was stolen in Jacksonville, Florida, more than 200 miles from Chickamauga, Georgia, where the auto was principally garaged. Pursuant to the exclusion from coverage set forth above, the defendant refused to pay plaintiff’s claim for theft coverage and plaintiff filed suit. This case was tried before a jury, which returned a judgment in the amount of $35,000 for plaintiff. Defendant appeals that judgment and the denial of its motion for directed verdict.

In two prior decisions interpreting Georgia law, radius of use limitations have been upheld. In Wallace v. Va. Surety Co., 80 Ga. App. 50 (55 SE2d 259) (1949), the insured sued his insurer for declaratory judgment concerning the construction of a radius of use provision. The automobile covered by the policy was driven outside the radius of use area during a trip to Miami, but was within the radius of use area at the time of the collision. The trial court granted declaratory judgment in the insurer’s favor and this court upheld that judgment. In that case, in addition to the language suspending coverage for accidents and losses occurring outside the radius of use area, the policy contained the following language: “ ‘In consideration of the premium at which the policy is written, it is agreed that the automobile or automobiles described in the policy will be used and operated entirely within a radius of 500 miles of the place where such automobile or automobiles as described in said policy are principally garaged.’ ” Id. at 51. We held the quoted language created a promissory warranty that the insured violated by sending the automobile to Miami, Florida. Therefore, we found that for purposes of that trip, the insurer was entitled to declare the policy void. Id.

In Canal Ins. Co. v. Baldree, 489 F2d 1393 (5th Cir. 1974), the former Fifth Circuit Court of Appeals had occasion to construe Georgia law concerning a policy provision virtually identical to the policy language in this case — the policy contained a radius of use limitation but did not include a promise by the insured not to operate the vehicle outside the radius of use area. The court held that such a policy provision suspended coverage while the vehicle was operated outside the radius of use area. Id. at 1395.

Plaintiff contends the enactment of compulsory insurance laws renders geographical exclusions in insurance policies void as against public policy. In particular, plaintiff argues that, at the time of his loss, Georgia law mandated that all motorists must have no-fault coverage in the minimum amounts set forth in OCGA § 33-34-4 and, because the exclusion would suspend that required coverage, it is void as against public policy. We agree with plaintiff that we must reconsider our enforcement of geographical restrictions in light of the recent trend among states of enacting compulsory insurance laws.

“Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy. Donaldson v. Pilot Life Ins. Co., 177 Ga. App. 748, 749 (341 SE2d 279) [(1986)].” Simmons v. Select Ins. Co., 183 Ga. App. 128, 129 (1) (358 SE2d 288) (1987). The Georgia Supreme Court has held that compulsory insurance statutes do not prohibit exclusions per se, and that each exclusion must be individually evaluated to determine if it is against public policy. Southern Guar. Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987) (upholding a family exclusion clause in an automobile liability policy). To determine if public policy is violated by a particular exclusion, Georgia courts must determine if there will be prejudice to innocent members of the public or if there is unfair exposure of the insured to unanticipated liability. Id.

Decided September 8, 1992

Reconsiderations denied October 5, 1992

Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., William E. Gray II, Linda M. Fitzgerald, Michael T. Thornton, for appellant.

Hatcher, Johnson & Meaney, James A. Meaney III, for appellee.

We hold that the radius of use limitation in question is not violative of public policy as applied in this case. Plaintiff’s claim arises out of the comprehensive coverage of the policy, not the liability coverage. Georgia’s former No-Fault Act established statutory minimum coverage only for certain liability claims. Thus, the purposes underlying the No-Fault Act are not nullified by allowing the parties to contract for comprehensive claims to be excluded from coverage if the loss occurs outside the radius of use area. Innocent members of the public are not injured by the application of this exclusion since only the insured may make a comprehensive coverage claim for loss by theft. Furthermore, there is no unfair exposure of the insured to liability since the exclusion was attached as an endorsement to his policy and contained the following caveat at the top of the page: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” Accordingly, we hold that the trial court erred in denying defendant’s motion for directed verdict.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

      Effective October 1, 1991, the Georgia Legislature repealed the No-Fault Act.

         We note that if this case had involved a liability claim covered by the former No-Fault Act, the exclusion would be void as to all liability claims falling within the statutory minimum coverage. See Equity Mut. Ins. Co. v. Spring Valley &c., 747 P2d 947 (Okla. 1987).

       Although plaintiff testified he did not receive a copy of the insurance policy in question until after the loss occurred, there was no evidence presented that defendant caused him not to receive a copy of the policy. Parties to a contract are presumed to know the contents thereof.


text:
    A92A1077.
    CONNELL v. MURRAY.
    (423 SE2d 304)
   Johnson, Judge.

Lenny Connell died testate on September 18, 1990. Melvin Murray was appointed temporary administrator of Connell’s estate on March 1, 1991. On that same date, Murray filed a personal injury lawsuit against himself as temporary administrator of the estate. Thereafter, Mary Connell, the decedent’s mother, qualified as executor of the estate and the temporary letters of administration issued to Murray were revoked. Attorneys for the estate filed a motion to dismiss Murray’s complaint on the ground that Murray could not be both plaintiff and defendant in the same action. Murray then filed a motion to substitute Mary Connell as the defendant in his action. The trial court entered an order denying the motion to dismiss and granting Murray’s motion to substitute. Mary Connell appeals from that order.

Decided October 5, 1992.

Simpson & Gray, Ralph F. Simpson, Elizabeth B. Gibbs, for appellant.

Moore & Studstill, Mitchell 0. Moore, William S. Perry, O’Neal, Brown & Sizemore, Manley F. Brown, for appellee.

A person cannot sue himself; the same person cannot be both plaintiff and defendant in the same action, even in different capacities. Perdue v. McKenzie, 194 Ga. 356, 364 (2) (21 SE2d 705) (1942); Langford v. Johnson, 46 Ga. App. 444 (3) (167 SE 779) (1933). Murray’s action against himself was therefore void from its inception and the trial court erred in not dismissing it. Because the action was void from its beginning, the trial court had no authority to substitute Mary Connell as the defendant. Accordingly, the trial court also erred in granting Murray’s motion to substitute.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1456.
    HOUSTON v. THE STATE.
    (423 SE2d 431)
   Johnson, Judge.

Donald Houston appeals from his conviction of child molestation and the denial of his motion for a new trial. Houston contends that the trial court erred in ordering him to proceed to trial unassisted by counsel without establishing that he had made a voluntary and knowing waiver of his right to counsel. Houston’s contention is meritorious.

Houston appeared in court on the date of his trial without an attorney. At that time, the trial judge refused to appoint a lawyer to represent Houston and refused to continue the case to allow Houston the opportunity to retain an attorney. The court stated that over a year earlier, at his arraignment, Houston was instructed to hire an attorney because the public defender had determined that Houston was not indigent and therefore did not qualify for the public defender’s services. Further, the court said that since the arraignment the public defender had determined that Houston still was not indigent. The record contains no evidence, however, that the court itself ever questioned Houston as to his financial situation or attempted to make a determination, independent of the public defender’s claims, as to whether Houston was indigent. Moreover, the record contains no evidence that the judge ever asked Houston his reasons for appearing in court without an attorney. Although the court refused to appoint an attorney to represent Houston or to continue the case, it did have an attorney sit with Houston and advise him during the trial. Nonetheless, the court clearly ruled that the attorney, acting “as a friend of the court,” was merely sitting with Houston and was not being appointed to represent him. The trial transcript shows that the attorney actively participated in the trial by questioning both state and defense witnesses, although it is clear from the record that he was not given time to prepare a defense for the trial.

“A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. This right attaches at the pleading stage of the criminal process and may be waived only by voluntary and knowing action. Waiver will not be lightly presumed and a trial judge must indulge every reasonable presumption against waiver. . . . For a non-indigent defendant, such as appellant, the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.” (Emphasis in original.) (Punctuation and citations omitted.) Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990). In the instant case, the record fails to disclose whether the trial court even attempted to ascertain whether Houston acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney was attributable to reasons beyond Houston’s control. Instead, the court simply told Houston he should have hired an attorney during the year between his arraignment and trial, without ever determining the reasons why Houston had appeared for his trial without counsel. “Under these circumstances, the trial court abused its discretion when it forced defendant to proceed to trial without the assistance of counsel.” (Citations omitted.) Callaway, supra at 608.

Decided October 5, 1992.

Willie J. Woodruff, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, for appellee.

Moreover, we find that this abuse of discretion was not cured either by the court’s order that an attorney “sit” with Houston during the trial or by the attorney’s active participation in the trial. The trial court’s ruling and the attorney’s conduct amounted to a denial of assistance of counsel. “The benefit of counsel guaranteed by the Georgia Constitution is not satisfied merely because the defendant is represented by counsel on his trial, but his counsel is entitled to a reasonable time after his employment to prepare a defense in order that he may adequately and effectively represent his client. [Cit.]” Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987). Here, the attorney was not given a reasonable time to prepare a defense on behalf of Houston. Accordingly, the trial court erred in failing to insure that Houston knowingly and voluntarily waived his right to counsel.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0765.
    PLATT v. NATIONAL GENERAL INSURANCE COMPANY.
    (423 SE2d 387)
   Birdsong, Presiding Judge.

Following denial of her motion for new trial, appellant Vanessa C. Platt has appealed the judgment entered in superior court, pursuant to jury verdict, in behalf of appellee/defendant National General Insurance Company.

Appellant was injured after a car in which she was a passenger struck a tree. She filed suit seeking certain PIP benefits from her father’s insurance policy. In addition to asserting an affirmative defense to appellant’s suit, appellee filed a counterclaim for declaratory judgment contesting the issue of appellant’s residency and entitlement to uninsured motorist benefits under the policy. Appellant also sought declaratory judgment as to whether she was a resident relative entitled to uninsured motorist benefits. The PIP question was resolved and the remaining issues were tried before a jury. Appellant claimed she was a resident of her father’s household at the time of the incident and therefore was covered by the policy. Appellee disputed that appellant was a resident of her father’s household, and further asserted that, assuming she was such a member, nevertheless the policy was void due to fraud and misrepresentation by appellant’s father in failing to disclose on his insurance application that appellant was a member of his household. The jury was instructed to render a verdict upon written interrogatories. A verdict was returned that appellant was not a resident of her father’s household at the time of the accident, and that the policy was not procured by fraud. Held:

1. Appellant asserts the trial court erred in admitting into evidence and allowing to be taken out with the jury during deliberation a statement of a witness to the accident. The major issue surrounding this witness’ testimony is whether appellant told him, at the time of the accident, that she was residing with her mother in Alpharetta or with her father in Snellville, Georgia. The trial court admitted the witness’ pretrial statement as an exception to the hearsay rule and allowed it to go to the jury on the basis that, after a proper foundation was established, it was offered under the legal theory of past recollection recorded. See generally Green, Ga. Law of Evidence (3rd ed.), Witnesses, § 130; Agnor, Ga. Evidence (2d ed.), §§ 4-10; 11-38.

The witness apparently had given his oral statement to an insurance investigator, which was recorded and promptly transcribed. Four days later, the transcript of the statement was presented to the witness for authentication. The last page of the transcript contains the following self-verifying statements in question and answer form: “Q. All right, is everything you have said been true and accurate to the best of your ability? A. To the best of my knowledge, that’s correct. Q. Have you understood all of my questions? A. Yes. Q. You understood this conversation was recorded? A. Right.” The transcript was signed by the witness, dated, and witnessed by the investigator immediately following this conclusory statement: “I have read completely these sixteen pages and agree that it is my statement.”

As the transcript of the witness’ statement was neither offered nor admitted in evidence as a business record, for purposes of impeachment, or as part of the res gestae pertaining to the accident, we are not required to adjudicate these issues on appeal. Further, although the transcript contains certain irrelevant information, as no motion was made to excise this information from the transcript neither is this issue preserved for appellate adjudication.

(a) The record reflects appellee apparently allowed the witness to examine his statement transcript prior to trial and; by that procedure, attempted to refresh the witness’ recollection of appellant’s residency statements so that the witness could testify thereto. Such a form of refreshment or revival of present recollection is acceptable under OCGA § 24-9-69. However, this procedure failed to refresh adequately the witness’ recollection. Thus, after testifying on direct examination that he was “sure” he had asked appellant, at the scene of the accident, where she lived and he “believe[d] she said Alpharetta,” the witness clarified these statements by testifying during cross-examination that he did not now remember appellant telling him she lived in Alpharetta when he pulled her out of the car. Thereafter, appellee commenced to lay a foundation for the admission of the witness’ statement as past recollection recorded. During the course of this procedure, the witness was questioned concerning and attempted to explain the current extent of his recollection regarding the matter as follows: “I’m sure that I asked her where she lived when we were there. And as far as an answer, I can’t tell you what she said any time during the whole time that we were out there.” On further redirect examination, the witness testified his recollection of the events the night of the incident would have been clearer and fresher in March 1990 (when he gave and later initialed his transcribed statement) than they are today (June 1991). He also was asked whether it was his .testimony at trial that appellant had told him she was from Alpharetta, and his response was “I wish I knew.” He immediately added that “7’m sure I told him [the insurance investigator] that she told me she lived in Alpharetta. But this long a time, I actually cannot recall whether she told me that or not.” (Emphasis supplied.) The combined effect of the above testimony was not only to confirm the witness’ lack of in-court recall but to constitute the witness’ in-court verification of his knowledge of the correctness of the memorandum as to the relevant information therein recorded, that is, he adequately testified to his willingness “to swear positively from the paper,” within the meaning of OCGA § 24-9-69. See Clackum v. State, 55 Ga. App. 44, 49 (7) (189 SE 397); Green, supra at § 130. “ ‘A witness can not, without finally testifying from his recollection of the facts, swear from a written memorandum without showing that he made the memorandum or at some time knew it to be correct.’ ” Proctor & Gamble Co. v. Blakely Oil &c. Co., 128 Ga. 606, 617 (2) (57 SE 879). A witness may have knowledge of the correctness of the memorandum “from having made the memorandum, or from having examined it when he had a distinct recollection of the facts to which it referred and at that time found it to be correct.” Green, supra at 257; compare Smith v. City of Atlanta, 22 Ga. App. 511, 512 (4) (96 SE 334). “If the witness made the memorandum himself, his knowledge of its correctness is sufficiently shown by his testimony that he remembers making a correct record of the facts and recognizes as such record the memorandum produced.” Green, supra at 257-258. But, “[i]n order for a memorandum to be used as a record of past recollection, the testimony must show that the witness, when his recollection of the facts was fresh, made or checked the memorandum.” Green, supra at 258. Under the attendant circumstances, the signed and initialed, self-verifying transcript of the witness’ recorded oral testimony was at least the effective equivalent of a memorandum personally prepared by a witness for purposes of establishing past recollection recorded. Thus when the witness testified he was sure he told the investigator the appellant lived in Alpharetta, in essence he was vouching that the transcript of his personally made oral statement correctly recorded what he had stated regarding the matter at issue. Further, as testified to by the witness, his recollection of the events was both clearer and fresher at the time the statement was given and transcribed, and the transcript on its face reveals, as testified to by the witness, that it had been completely read, signed, each page initialed, and its correctness agreed to by the witness on March 20, 1990, only 18 days after the incident. Accordingly, although it would be preferable to ask the witness specifically at trial whether he had told the truth as he then perceived it when he gave his oral statement and whether the transcript constituted an accurate recording in toto of what he had personally stated, the trial court nevertheless could find an adequate foundation had been established to qualify the transcribed statement as past recollection recorded pursuant to OCGA § 24-9-69.

(b) Although the documents used to refresh or revive a witness’ present recollection generally cannot be admitted in evidence (Nationwide &c. Ins. Co. v. Rhee, 160 Ga. App. 468, 472 (10) (287 SE2d 257); compare Woodward v. City Council &c., 117 Ga. App. 857 (162 SE2d 304)), when a foundation is established for the use of the documents for purposes of past recollection recorded, both the testimony of the witness as to the relevant facts contained in the document (Cooper v. State, 174 Ga. App. 464, 466 (3) (330 SE2d 402); Mabry v. Henley, 123 Ga. App. 561, 566 (1c) (181 SE2d 884); Bridges v. Mutual &c. Acc. Assoc., 49 Ga. App. 552 (2) (176 SE 543); Veal v. Wood, 29 Ga. App. 94 (1) (113 SE 818)) and the document itself (Black &c. v. Thornton, 30 Ga. 361, 378 (1); Clackum v. State, supra at 50 (7); Stansall v. Columbian Nat. Life Ins. Co., 32 Ga. App. 87, 90 (122 SE 733) (dictum); Bank of South Carolina v. Brown, Dudley 62, 64 (Ga. Superior Ct.) (dictum); Agnor, supra at § 11-38, p. 353; cf. Southern R. Co. v. Cowan, 52 Ga. App. 360, 368 (6) (183 SE 331) (card was inadmissible only because a proper foundation for past recollection recorded had not been laid); but see Ingram v. Hilton &c. Co., 108 Ga. 194 (3) (33 SE 961); Woodward, supra; Green, supra at 258 are admissible. However, care should be taken to avoid needless repetition and cumulativeness in the admission of such evidence.

(c) Appellee relies inter alia upon Vinyard v. State, 177 Ga. App. 188 (338 SE2d 766) to support the contention that not only is the document admissible but it should be allowed to go out with the jury during the deliberation. We find Vinyard, supra, and Whitehead v. Seymour, 120 Ga. App. 25, 27 (2) (169 SE2d 369) to be distinguishable from and not controlling in this case. Unlike the letter in Vinyard and the ordinances in Whitehead, the transcript in this case was in fact a “reduction to writing of an oral statement” and was unequivocally utilized as a “statement in lieu of testimony,” albeit on the theory of past recollection recorded. Vinyard, supra at 190. By way of dictum in Stansall, supra at 90, this court opined that past recollection recorded documents can be read aloud by the witness and shown to the jury or otherwise put in evidence. However, contrary to appellee’s assertions, Stansall does not establish that such documents should also be allowed to go out with the jury during deliberation. It is a far different matter for the proponent, after laying a proper foundation for admissibility as past recollection recorded and placing the transcript or document in evidence, to cause it to be read to the jury from the witness stand or shown by passing it around the jury box under controlled conditions or by exhibiting it in open court in the form of an enlarged reproduction than to allow the document to accompany the jury into the deliberation room. In the latter situation a fair risk exists the jury will place undue emphasis on the statement being used in lieu of testimony merely because it accompanies them into the deliberation room for their reading at will. Transcripts, such as the one under review, which depend entirely for their value on the credibility of the maker and have been introduced solely for purposes of past recollection recorded are substantially equivalent in effect to interrogatories and depositions (compare Royals v. State, 208 Ga. 78, 81 (2) (65 SE2d 158); Laster v. State, 163 Ga. App. 294, 295 (2) (293 SE2d 75)). “Such written testimony may have an unfair advantage over oral testimony by speaking to the jury more than once,” and it is error to permit the jury to take such written testimony into the jury room. Royals, supra; but compare Waldrup v. Baker, 180 Ga. App. 121 (348 SE2d 566) (statements admissible as prior inconsistent or prior consistent statements of a witness and admissible as substantive evidence). Accordingly, under the facts of this case, the trial court erred in allowing the transcripts to accompany the jury into the deliberation room over timely and specific objection.

However, the record reveals that, before the transcript was admitted in evidence and allowed to accompany the jury, the witness testified as to its relevant content at length and without objection. As this testimony was legal in itself because of its probative value but was inadmissible until the proper foundation for its admissibility had been laid, failure to object timely and specifically to its admissibility due to want of adequate foundation constituted waiver. Compare Mable v. State, 261 Ga. 379, 381 (1) (405 SE2d 48) with Patton v. Bank of LaFayette, 124 Ga. 965 (7) (53 SE 664); see Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395). As there was before the jury considerable unstricken witness testimony regarding appellant’s residency statements in the transcript, for example, that “the girl actually told me she lived in Alpharetta herself,” any error caused by allowing the transcript into the jury room was harmless. We will not grant a new trial or reverse a case for error unless it is shown that the error is harmful, and evidence is harmless where evidence of the same fact has been admitted and is legitimately before the jury. Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642); see generally OCGA § 9-11-61.

2. Appellant asserts that the trial court erred by allowing the issue of fraud and misrepresentation in the procurement of the policy to be considered by the jury, and by charging the jury on the issues of fraud and misrepresentation, and as to the general law of contracts.

The evidence that appellant’s father signed an application for insurance that did not list appellant as a member of his household had some independent relevancy. From this evidence, the jury could reasonably infer that as of the date that the application was filled out by appellant’s father, appellant was not a resident of his household. Once appellant’s status as a nonresident of her father’s household was established, such status could be presumed to continue until the contrary was established. See Esco v. Jackson, 185 Ga. App. 901, 906 (2) (366 SE2d 309). Thus, the evidence regarding the failure to list her name as a member of the household on the insurance application was properly before the jury for consideration. Georgia rules of evidence favor the admissibility of any relevant evidence, no matter how slight its probative value; even evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. West v. Nodvin, 196 Ga. App. 825, 828 (3b) (397 SE2d 567). And we will not reverse the correct decisions of the trial court regardless of the reasons given therefor. National Consultants v. Burt, 186 Ga. App. 27, 28 (2) (366 SE2d 344).

As uninsured motorist insurance coverage can be rejected (OCGA § 33-7-11), it is not a form of mandatory insurance coverage to which the defense of misrepresentation would be precluded as a matter of public policy. Compare Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887); see also Clabo v. Tennessee &c. Ins. Co., 202 Ga. App. 110 (413 SE2d 476). The cases cited by appellant, including Pearce v. Southern &c. Ins. Co., 246 Ga. 33 (268 SE2d 623); Georgia Farm &c. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725); and Mercer v. Woodard, 166 Ga. App. 119 (303 SE2d 475), which do not pertain to the fraud and misrepresentation defense in cases involving uninsured motorist coverage, are distinguishable and not controlling. Accordingly, the fraud and misrepresentation defense was properly submitted to the jury.

Further, the jury returned a verdict, which included inter alia a finding, by way of interrogatories to the jury, that “we, the jury, do not find that the policy in question was procured by fraud.” As the jury returned a verdict in favor of appellant as to the issue of fraud, we find that and appellate issues pertaining to the admission of evidence and the charges given regarding fraud or misrepresentation were rendered moot. Moreover, we find entirely speculative appellant’s contention that the collateral effect of the issue of fraud being heard by the jury resulted in a finding of nonresidency. As above discussed, the manner in which the application was filled out had some relevancy regarding the issue of residency; and, in any event, this court will not speculate as to the manner in which the jury reached its actual verdict, or to its conclusions as to the interrogatories submitted to it (submitted incidentally without objection as to their form by either side). Dimauro v. State, 185 Ga. App. 524, 525 (3) (364 SE2d 900). Suffice it to state that appellant has failed to affirmatively establish by the record an existence of prejudicial error warranting case reversal. An appellant must show both error and harm to prevail. Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892).

Decided September 8, 1992

Reconsideration denied October 6, 1992

J. Douglas Sexton, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Saveli & Williams, Richard G. Farnsworth, Delores A. Young, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.