text:
    A90A0321.
    MUMFORD v. PHILLIPS.
    (395 SE2d 45)
   Carley, Chief Judge.

Appellant-plaintiff filed a mechanic’s lien for labor and materials employed in his repair of an outboard motor that he had originally sold to appellee-defendant. Appellee answered and filed a counterclaim for breach of warranty. The case was heard by the trial court sitting without a jury. As to appellee’s counterclaim, the trial court awarded $5,000 in actual damages for breach of warranty, $5,000 in punitive damages, and $1,000 in attorney’s fees. This $11,000 was then reduced by $1,130, the amount that the trial court found was owed appellant for non-warranty repairs he had made on the motor. A $9,870 judgment was accordingly entered for appellee and appellant appeals.

1. Appellant enumerates as error the trial court’s award to appellee of $5,000 in actual damages, urging that there is no evidence to authorize the award of such an amount.

Appellee elected to affirm the contract whereby he purchased the motor and to sue appellant for damages for breach of warranty. The evidence authorized the trial court to find that appellant had misrepresented the motor as being “new” when he sold it to appellee. However, there is absolutely no evidence to authorize an award of $5,000 as damages for this breach of warranty. “The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” OCGA § 11-2-714 (2). There was no evidence to authorize a finding that $5,000 represents the difference between the value of the motor as accepted and its value had it in fact been “new.”

The evidence also authorized the trial court to find that appellant had extended a twelve-month warranty of repair on the motor. Again, however, there is absolutely no evidence to authorize an award of $5,000 as damages for appellant’s breach of this warranty. “There was . . . evidence as to the purchase price of the [motor but not] its value without the [necessary repairs].” Patron Aviation v. Teledyne Indus., 154 Ga. App. 13, 16 (3) (267 SE2d 274) (1980).

There being no evidence to authorize an award to appellee of $5,000 as actual damages for appellant’s breach of warranty, the judgment as to those damages must be reversed.

2. Since the award of $5,000 in actual damages is unauthorized and must be reversed, there is no basis for the award of punitive damages and attorney’s fees and those awards must also be reversed. However, in the event that a retrial is held, we would point out that, contrary to appellee’s contentions, Webster v. Webster, 250 Ga. 57 (295 SE2d 828) (1982) did not authorize the trial court to make an award of attorney’s fees without any evidence ever having been presented as to the actual cost of legal representation and the reasonableness of that cost. The Webster decision concerned OCGA § 19-6-2 (a) (1), which applies to an award of attorney’s fees in a divorce or alimony action. OCGA § 19-6-2 (a) (1) has no applicability in this case and, consequently, Webster is likewise inapplicable. Accordingly, in the event of a retrial, no award of attorney’s fees should be made unless there is evidentiary support for such an award. See generally Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 442 (3) (385 SE2d 307) (1989).

Decided May 29, 1990.

Joel E. Williams, Jr., for appellant.

Paul W. Calhoun, Jr., for appellee.

Judgment reversed.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A90A0394.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (395 SE2d 264)
   Carley, Chief Judge.

Lamar Blackwelder was injured in an automobile collision between the truck that he was operating and a vehicle that was being operated by Florrye Spivey. Blackwelder was afforded no-fault coverage under a policy that had been issued by appellant-plaintiff Southern Guaranty Insurance Company of Georgia (Southern Guaranty). Ms. Spivey was afforded liability coverage under a policy that had been issued by appellee-defendant Georgia Farm Bureau Mutual Insurance Company (Farm Bureau). As the result of his injuries, Blackwelder received $4,380 in no-fault benefits from Southern Guaranty. Because the truck that Blackwelder had been operating weighed more than 6,500 pounds when unloaded, Southern Guaranty gave notice of its potential subrogation claim to Farm Bureau. Thereafter, Farm Bureau settled with Blackwelder for the full limits of Ms. Spivey’s policy and received a release.

On these facts, Southern Guaranty brought this subrogation action against Farm Bureau, seeking to recover the $4,380 in no-fault benefits that it had paid to Blackwelder. Farm Bureau answered and subsequently moved for summary judgment. The trial court granted summary judgment in favor of Farm Bureau, holding that Southern Guaranty had no enforceable subrogation rights because Blackwelder had not been fully compensated for his injuries. It is from this order granting Farm Bureau’s motion for summary judgment that Southern Guaranty brings this appeal.

This case is controlled by our recent decision in Southern Gen. Ins. Co. v. Cotton States Mut. Ins. Co., 193 Ga. App. 240 (387 SE2d 435) (1989). Accordingly, the trial court’s order evinces an erroneous reliance upon the provisions of former rather than existing OCGA § 33-34-3 (d) (1). “Under [existing OCGA § 33-34-3 (d) (1)], it would appear that the complete compensation of the injured insured is a condition precedent to the no-fault carrier’s right to seek subrogation only in the event that the tortfeasor is uninsured and is not a self-insurer. The owner and operator of the [vehicle] that struck [Blackwelder] is insured. Therefore, it would appear to follow that [Blackwelder’s] complete compensation is not a condition precedent to [Southern Guaranty’s] right to seek subrogation and that [the trial court’s] reliance upon the holdings in [cases construing former OCGA § 33-34-3 (d) (1)] is misplaced.” (Emphasis in original.) Southern Gen. Ins. Co. v. Cotton States Mut. Ins. Co., supra at 240-241.

Decided May 29, 1990.

Michael L. Wetzel & Associates, Michael L. Wetzel, for appellant.

Fain, Major & Wiley, Donald M. Fain, Roger W. Orlando, for appellee.

However, the trial court’s grant of summary judgment was nevertheless correct because “it is otherwise clear that [Southern Guaranty] has no viable subrogation claim against [Farm Bureau]. ‘Nothing contained in [OCGA § 33-34-3 (d) (1)] shall be deemed to increase or enlarge the bodily injury liability, personal injury protection, or medical payments limits of any policy of motor vehicle liability insurance in this state.’ OCGA § 33-34-3 (1) (2). Because [Farm Bureau] has already exhausted the . . . limits of the liability policy that it issued to [Ms. Spivey], any subrogation claim by [Southern Guaranty] against [Farm Bureau] would necessarily constitute an unauthorized attempt to increase or enlarge the limits of that policy. The legislative intent of OCGA § 33-34-3 (d) (2) is clear. A liability carrier has potential exposure in connection with the tort claim of the injured party and with the subrogation claim of the no-fault carrier up to the limits of the liability policy. However, the no-fault carrier’s potential subrogation claim is extinguished by the liability carrier’s exhaustion of the policy limits in payment of the tort claim of the injured party.” (Emphasis in original.) Southern Gen. Ins. Co. v. Cotton States Mut. Ins. Co., supra at 241.

A judgment that is right for any reason will be affirmed. Regardless of the trial court’s rationale, its grant of summary judgment in favor of Farm Bureau was correct and that judgment, accordingly, is affirmed.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A0501.
    CRISP v. THE STATE.
    (395 SE2d 47)
   Banke, Presiding Judge.

At the conclusion of a bench trial, the appellant was found guilty of one count of trafficking in cocaine, as well as five additional counts of violating the Georgia Controlled Substances Act and two counts of possessing a firearm during the commission of a felony. He brings this appeal from the denial of his motion for new trial.

The appellant was among several persons who were arrested on November 6, 1987, during a raid on a suite of rooms registered to a Patricia Partridge. The raid occurred after the manager of the hotel became suspicious that illegal activity might be taking place in the suite and requested police assistance in evicting its occupants. The appellant was charged with possession of cocaine and marijuana and possession of a firearm during the commission of a felony in connection with this incident.

On June 4, 1988, the manager of another hotel discovered the appellant unconscious in a room registered to one Timothy Roberts, who is a co-defendant in the present case. Upon regaining consciousness, the appellant told police he did not know where he was nor how he had gotten there. The appellant was also charged with possession of cocaine and possession of a firearm during the commission of a felony in connection with this incident, as well as with possession of diazepam.

The appellant was again arrested on October 3, 1988, after an informant in the custody of the Fulton County police made arrangements over the telephone to meet with him and co-defendant Roberts for the purpose of purchasing a quantity of cocaine. When the appellant and Roberts arrived at the designated meeting place for the transaction, the police converged on them, seizing a quantity of cocaine from the front seat of their vehicle and also seizing a pistol from each of them. In connection with this arrest, the appellant was charged with trafficking in cocaine, possession of cocaine, possession of cocaine with intent to distribute, and possession of a firearm during the commission of a felony. Held:

1. The appellant contends that the trial court erred in denying his motion to suppress the cocaine seized from his person and presence during the course of the three arrests. We need not address the legality of the searches of the two hotel rooms, because the appellant was not a registered guest at either hotel and because he failed to demonstrate any connection with the premises, other than his mere presence there at the time the searches were conducted, which would enable him to claim a reasonable expectation of privacy therein. See Sanders v. State, 181 Ga. App. 117, 118 (351 SE2d 666) (1986). See also Delgado v. State, 192 Ga. App. 356 (384 SE2d 680) (1989); Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387) (1978). Compare Minnesota v. Olson 495 U. S. _ (110 SC _, 109 LE2d 85) (1990) (holding that an overnight guest in a private residence does have a reasonable expectation of privacy in the premises). With respect to the search of the pickup truck, we hold that probable cause existed for the warrantless arrest of the appellant and his companion on the occasion in question and that the search of the vehicle was consequently authorized as a search incident to that arrest. See generally Butler v. State, 185 Ga. App. 478 (1) (364 SE2d 612) (1988); Smith v. State, 135 Ga. App. 424 (218 SE2d 133) (1975). In this connection, we reject the appellant’s contention that the state failed to make an adequate showing of the informant’s reliability. Police officers were present when the informant made his arrangements to meet the appellant and Roberts for the purpose of purchasing cocaine from them, and the events which subsequently transpired provided a substantial basis for concluding that the informant’s information was reliable. See generally Butler v. State, supra.

2. The appellant contends that the trial court erred in refusing to dismiss the charges against him on grounds of prosecutorial vindictiveness. Originally, the appellant was charged in three separate indictments with the drug charges arising from each of his three separate arrests. Subsequently, a fourth indictment was returned consolidating all the drug charges from the three original indictments and adding to them the firearms charges, which had not been included in the original indictments. The appellant contends that the decision to consolidate the drug charges and to add the firearms charges was made in retaliation for certain pre-trial evidentiary challenges which he had asserted. The state denied any such motive, and the trial court was not required under the circumstances to conclude that the appellant was the victim of prosecutorial vindictiveness. Accord United States v. Goodwin, 457 U. S. 368 (102 SC 2485, 73 LE2d 74) (1982); Bordenkircher v. Hayes, 434 U. S. 357 (98 SC 663, 54 LE2d 604) (1978).

3. The appellant contends that the trial court erred in denying his motion to sever the offenses. We disagree. Given the similar nature of the charges arising from each of the three arrests and the presence of other common factors, such as the use of beepers, weapons and hotel rooms and the involvement of co-defendant Roberts, the trial court was authorized to conclude that the various offenses constituted a series of related or connected acts. See generally Haisman v. State, 242 Ga. 896 (3) (252 SE2d 397) (1979). Accordingly, the appellant’s motion for severance was properly denied.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided May 29, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Desiree L. Sutton, R. Stephen Roberts, Assistant District Attorneys, for appellee.


text:
    A90A0537.
    VINEYARD v. THE STATE.
    (395 SE2d 49)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of arson in the first degree. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The admission into evidence of appellant’s confession is enumerated as error. The contention is that it was induced by a hope of benefit and was, therefore, involuntary.

A polygraph examiner testified that he had told appellant that a certain detective was the person who could “help” him. Appellant relies upon this testimony as evidence that his confession was involuntary and inadmissible. When read in context, however, it is clear that the examiner was merely testifying that he had told appellant that he was not involved in the prosecution of the case and that questions should be directed to the detective. The examiner never indicated that the detective would do anything to benefit appellant, and both the examiner and the detective testified that they did not offer appellant any hope of benefit or reward. In fact, appellant’s only testimony in this regard is that he was told that if someone else started the fire and he provided such information, there would be a reward. “While OCGA § 24-3-50 prohibits the introduction of a statement induced ‘by the slightest hope of benefit,’ the hope contemplated must be induced by another. [Cit.] . . . The trial court’s findings regarding factual determinations and credibility when considering the admissibility of a confession will be upheld on appeal unless- clearly erroneous. [Cit.] . . . [W]e find no error in the admission of the statement.” Bryant v. State, 193 Ga. App. 840, 841 (2) (389 SE2d 405) (1989).

2. Appellant enumerates the general grounds, urging that the evidence is insufficient to authorize a finding that, under the circumstances, it was “reasonably foreseeable that human life might be endangered.” OCGA § 16-7-60 (a) (5).

The fire was set in a carpet plant where appellant was employed. At the time the fire was set, the plant was occupied by several employees. Although a wall separated the employees from the actual fire, they were in close proximity thereto and toxic smoke filled the area. “This evidence clearly established the reasonable foreseeability of danger to human life. . . .” Bell v. State, 249 Ga. 644, 646 (2) (292 SE2d 402) (1982). “[T]his constituted serious endangerment of life, and the jury, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], could rationally determine beyond a reasonable doubt that appellant committed this act.” Sweet v. State, 191 Ga. App. 516, 520 (8) (382 SE2d 376) (1989).

Decided May 29, 1990.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A0595.
    COASTAL TRANSPORT & TRADING COMPANY v. CARPENTER.
    (395 SE2d 266)
   Deen, Presiding Judge.

On October 9, 1985, Alvin B. Carpenter was involved in an accident while driving a truck for Coastal Transport & Trading Company (Coastal). He received workers’ compensation benefits (medical and wages), and returned to work on January 6, 1986. His benefits were apparently terminated at that time. He made no complaints of pain and was able to fully perform his assigned duties. He was terminated from his employment for other reasons on January 23, 1986, and began working for another employer a few days later. He filed a change of condition claim shortly after he quit his second job. The ALJ entered an award in Carpenter’s favor. The employer appealed to the full Board, and it reversed, finding that Carpenter could perform his normal duties when he returned to work for Coastal, that he performed his duties without complaint of pain or loss of time for his second employer, and that his termination from his jobs was not related to his earlier injury. The Board cited the opinion of an orthopedic surgeon who examined him on July 6, 1986, and felt that the claimant “was poorly motivated to cooperate with the examination, and that a return to the work force would constitute excellent therapy for him.” Carpenter then appealed to the superior court, which affirmed. The claimant then requested a determination by the Alternative Resolution Unit, under Rule 100, as to the compensability of approximately $4,000 in charges for chiropractic care. These charges were incurred two months after his discharge from Coastal and continued to the date the request was made. Neither party requested a hearing, and the ALJ entered an award finding that the chiropractor’s bills were not compensable. On appeal, the Board adopted the ALJ’s findings after a de novo review of the evidence. Carpenter appealed to the superior court, which held that there was no evidence to support the Board’s award and remanded to the Board for the receipt of further evidence. This court granted Coastal’s application for an appeal. Held:

Decided May 29, 1990.

Dillard & Landers, Daniell S. Landers, for appellant.

Lester B. Johnson III, for appellee.

In denying the compensability of the chiropractor’s bills, the ALJ reviewed the Board’s prior findings denying the change of condition award, the findings of the physician who examined him, and the physician’s conclusions that the medical examination failed to reveal any significant abnormalities. The ALJ went on to find that the chiropractor’s treatment was not related to his October 9, 1985, on-the-job injury, and that the employer/insurer was not responsible for these bills.

The superior court, in hearing workers’ compensation appeals, is bound by the “any evidence” rule. Galmon v. Seabreeze Mfg. Co., 181 Ga. App. 132 (351 SE2d 521) (1986); Banks v. Royal Globe Ins. Co., 160 Ga. App. 18 (286 SE2d 309) (1981). Final awards of the Workers’ Compensation Board are conclusive and binding as to all questions of fact. OCGA § 34-9-105 (a). The judgment finding that no change of condition had occurred following Carpenter’s return to work was therefore binding upon the ALJ in making his determination as to the non-compensability of the medical bills in question, as they were incurred more than two months after the claimant’s return to work. The ALJ also noted that a physician’s July 1986 examination revealed no abnormality and that any further chiropractic therapy would be of little benefit. As the ALJ and the Board were bound by prior conclusive determinations in this case that no change of condition had occurred, the superior court erred in remanding the case for further evidence. Ansa Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989).

Judgment reversed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0620.
    CAMPBELL v. BAUSCH.
    (395 SE2d 267)
   Sognier, Judge.

Sandra Campbell brought suit against Russell N. Bausch in three counts, alleging lie had converted stock certificates, funds in a business checking account, and accounts receivable. Bausch answered and counterclaimed, alleging he was Campbell’s business partner and was entitled to half the net profits of the business, and setting forth claims for slander, intentional infliction of emotional distress, and abusive litigation. Both parties sought damages and attorney fees. The trial court directed a verdict in favor of Bausch on Campbell’s claim for conversion of the stock certificates, and a jury returned a verdict in favor of Bausch on the remainder of Campbell’s claims and on his counterclaim for abusive litigation. Campbell appeals.

The evidence adduced at trial established that appellant had a romantic relationship with appellee and was living with him at the time she gave him approximately $6,000 to purchase certain stock for her through his broker, which he did. When the parties’ relationship ended appellant requested the stock certificates, but she did not receive them until several months later because they had been issued in appellee’s name, necessitating reissuance through the broker. After the stock was transferred to appellant, she continued to hold it through the time of trial, and its value declined considerably.

1. Appellant contends the trial court erred by directing a verdict for appellee on her claim for conversion of the stock because questions of fact existed whether the parties intended that the stock be issued in her name rather than that of appellee, and whether appellee deliberately withheld the stock from her. The trial court granted appellee’s motion for a directed verdict, however, on the ground that sufficient proof of value of the stock had not been introduced to authorize the jury to award damages.

Where the plaintiff elects to sue for damages rather than return of the property, proof of the value of the property is an essential element of an action for conversion. Sisk v. Carney, 121 Ga. App. 560, 563 (4) (174 SE2d 456) (1970). Appellant argues that pursuant to OCGA § 44-12-152 she was entitled to recover as damages “the amount of the highest value which [she] is able to prove existed between the time of the conversion and the trial.” Id. Even were we able to ascertain the date of the alleged conversion in the case sub judice, however, we could not agree with appellant that OCGA § 44-12-152 applies once the property has been returned to its rightful owner. That construction would allow appellant to recover possession of the allegedly converted property prior to trial, permit it to deteriorate in value to nothing, and recover damages based on the loss in value while the property was in her possession. Rather, we agree with appellee and the trial court that the measure of damages in OCGA § 44-12-152 applies only when the property is still “unlawfully detained,” id., and since in the case sub judice the property had been returned, appellant could recover damages for the diminution in value of the stock only for the time period between the alleged conversion and the property’s return.

Appellant admitted the stock was returned in February 1989, but introduced no evidence showing the value of the stock at that time. The only evidence of value introduced was the purchase price of the stock and its value in April 1989, two days before trial and two months after its return. Accordingly, since appellant “did not meet the burden of providing the jury ‘data sufficient to enable them to estimate with reasonable certainty the amount of damages,’ ” Accent Walls, Inc. v. Parker, 162 Ga. App. 633, 634 (1) (292 SE2d 509) (1982), the trial court did not err by directing a verdict for appellee on this issue.

2. In her second enumeration of error, appellant maintains the trial court erred by denying her motion for a directed verdict on appellee’s claim for attorney fees and expenses for abusive litigation.

(a) In view of our holding in Division 1, supra, we need not address appellant’s argument that the trial court’s erroneous direction of a verdict in favor of appellee on the claim for conversion of the stock certificates impermissibly influenced the jury to find for appellee on the abusive litigation claim.

(b) Appellant also argues, however, that the evidence tendered was inadequate to show the amount of the attorney fees to which appellee was entitled. See Price v. Mitchell, 154 Ga. App. 523, 526 (6) (268 SE2d 743) (1980).

During the trial of the Yost claim (Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986)), appellee’s counsel testified to his experience and his usual hourly rate, which he also testified was reasonable and customary for the type of services provided by attorneys of his experience in this area of civil law. He also produced statements evidencing actions taken and time expended. It is well established that a party’s “attorney himself is competent to testify as to his opinion on reasonable fees ([Cit.]).” Altamaha &c. Center v. Godwin, 137 Ga. App. 394, 397 (224 SE2d 76) (1976). Moreover, after being qualified as an expert, appellant’s counsel estimated that in his opinion approximately one-fourth to one-third of the total hours had been spent in prosecution of the Yost claim. Thus, unlike the situation in Augusta Tennis Club, Inc. v. Leger, 186 Ga. App. 440, 443 (5) (367 SE2d 263) (1988), cited by appellant, the proof was adequate to show what portion of the total attorney fees was allocable to the claim supporting the award of attorney fees. We find the evidence presented sufficient in this case to enable the jury to properly calculate an award of attorney fees. See generally Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987).

Decided May 29, 1990.

Bobby L. Cobb & Associates, Bobby L. Cobb, for appellant.

Moore & Rogers, Robert D. Ingram, C. Gregory Ragsdale, for appellee.

Judgment affirmed.

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


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A0640.
    THE STATE v. ANDERSON.
    (395 SE2d 50)
   Sognier, Judge.

Following a search of the premises of the Eastman Knights Club, Vanessa Anderson, who was present at the club at the time of the search, was charged with possession of cocaine and unlawful sale of distilled spirits. The State appeals from the trial court’s order granting Anderson’s motion to suppress the fruits of the search of her purse.

The record reveals that GBI Agent Greg Harvey applied for a warrant to search the club premises and curtilage, and in support of his application submitted an affidavit in which he averred that in the last few days (1) a law enforcement officer twice had purchased distilled spirits at the club and had seen persons possessing and using controlled substances on the premises and in the parking lot; (2) a reliable informant had observed the sale of distilled spirits on the premises; and (3) Harvey had personally observed the sale of distilled spirits at the club. The magistrate issued a warrant authorizing the “search [of] any person or vehicle found on the premises or curtilage” of the club for “alcoholic beverages and marijuana.” Appellee was present at the club when the no-knock warrant was executed, and a search of her purse yielded one piece of crack cocaine.

Even though the warrant authorized the search of “any person” found on the premises, we have held that such language may not be used to broaden the scope of a search of persons not named in the warrant beyond the limits set by OCGA § 17-5-28, which “describes the maximum extent to which the particularity of description required by the Fourth Amendment may be encroached upon by the practical necessities of the search environment. [Cits.]” Wallace v. State, 131 Ga. App. 204, 205 (1) (205 SE2d 523) (1974). In the absence of independent probable cause for a warrantless search of a person present at the time of the search but not named in the warrant, id., the search of such a person is authorized only if the State can demonstrate that the law enforcement officer acted under either of the two justifications provided in OCGA § 17-5-28: (1) to protect himself from attack; or (2) to prevent disposal or concealment of any contraband specifically described in the warrant. E.g., Smith v. State, 139 Ga. App. 129, 131 (1) (227 SE2d 911) (1976). The personal boundaries of a person not named in the warrant include personal belongings such as a purse. Childers v. State, 158 Ga. App. 613, 614 (281 SE2d 349) (1981).

Decided May 29, 1990.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assis tant District Attorney, for appellant.

In the instant case, there is no evidence appellee’s purse was searched because the officers had a reasonable suspicion she might be armed. Instead, the State contends the search of her purse was proper because she might have concealed marijuana or half pints of liquor inside the purse. We do not agree. The record does not reveal that appellee was anything other than a visitor to the club. See id. at 615. While the State’s brief contains allegations regarding her relationship to the club owners, we cannot consider factual statements in the briefs that are not supported by the record. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988). Since no testimony was presented at the motion hearings, there is no competent evidence in the record to establish a nexus between appellee and the alleged illegal activities at the club, and thus no reasonable basis for suspecting she might be concealing either liquor or marijuana, the contraband named in the warrant. See Childers, supra at 614-615; compare Bonds, supra. Absent any other evidence showing independent probable cause for a warrantless search of appellee, see Wallace, supra at 205 (1), we find the officer did not have probable cause to search appellee’s purse, and accordingly we affirm the trial court’s ruling.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I am constrained to concur with the majority’s affirmance of the trial judge’s grant of the motion to suppress in this case because, as pointed out by the majority, no testimony was presented at the motion hearings and “we cannot consider factual statements in the briefs that are not supported by the record.” (Majority opinion p. 794.) However, I am also constrained to opine that if there had been uncontradicted probative evidence of the allegations contained in the brief, this case would be controlled by Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988) and it would have been error to grant the motion to suppress.

Steven M. Harrison, for appellee.


text:
    A90A0642.
    KENNEDY v. THE STATE.
    (395 SE2d 270)
   Deen, Presiding Judge.

A Chatham County jury found appellant Kennedy guilty of the offenses of armed robbery, possession of a firearm during the commission of armed robbery, aggravated assault upon a police officer, and possession of a firearm during the commission of aggravated assault. After denial of his motion for new trial, Kennedy appeals, enumerating two errors: (1) the convictions and sentences for Counts 3 and 9 (those specifying possession of a firearm during commission of a felony) violate the double jeopardy clause of the Fifth Amendment; and (2) allegedly incomplete jury instructions on aggravated assault caused appellant’s right to a unanimous jury verdict to be denied. Held:

1. Georgia courts have expressly ruled contrary to appellant’s contention in his first enumeration of error. “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” McMachren v. State, 187 Ga. App. 793, 796 (371 SE2d 445) (1988). Moreover, there is no double jeopardy problem: “ ‘The offense of possession of a firearm during the commission of a felony does not merge into the felony upon convictions for both. In 1976, the General Assembly amended Ga. Code Ann. § 26-9908a [OCGA § 16-11-106], the Code section which defines the offense of possession of a firearm during the commission of a felony. The amendment provides: “Notwithstanding any prior court decision to the contrary, any crime committed in violation of this section shall be considered a separate offense.” [Cit.]’ “Thus there is express legislative intent to impose double punishment for conduct which violates both [OCGA § 16-11-106] and other felony statutes.” Wilson v. Zant, 249 Ga. 373, 380 (290 SE2d 422) (1982).” Miller v. State, 250 Ga. 436, 437 (298 SE2d 509) (1983), quoting Wiley v. State, 250 Ga. 343 (296 SE2d 714) (1982).

Thus it has been held that separate convictions for possession of a firearm and armed robbery violate neither Georgia statutes nor the Georgia Constitution. Likewise, citing United States Supreme Court decisions, including Blockburger v. United States, 284 U. S. 299, 304 (52 SC 180, 76 LE 306) (1932), Georgia’s Supreme Court held in Wilson v. Zant, supra at 379, 380: “[C]onvictions for both murder and possession of a firearm during the commission of a felony are not constitutionally prohibited . . . because the two offenses . . . have distinct statutory elements . . . [A]s we have previously noted, our statutory, substantive double jeopardy provisions . . . have expanded the proscription against multiple punishment for the same conduct beyond that required by the United States and Georgia Constitutions . . . Yet . . . [the 1976 amendment to Code Ann. § 26-9908a, now OCGA § 16-11-106] provides: ‘Notwithstanding any prior court decision to the contrary, any crime committed in violation of this section shall be considered a separate offense.’. . . As we have already noted, such double punishment is not constitutionally prohibited.”

Decided May 29, 1990.

Kenneth Kondritzer, for appellant.

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

We find no merit in appellant’s first enumeration.

2. Scrutiny of the record indicates that appellant did not make a timely submission of his requests for jury instructions but proffered them after the close of the evidence.

According to the trial transcript, the court gave individual instructions on each of the two counts of aggravated assault with which appellant had originally been charged in the indictment; each instruction was appropriate to the count to which it pertained. Moreover, the transcript reveals, the court expressly stated to the jurors: “In any of these verdicts that I’m going to talk about, your verdicts must be unanimous [in order] to convict.” We find appellant’s second enumeration also to be devoid of merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A0065.
    DOUGLAS v. GILBERT.
    (395 SE2d 9)
   McMurray, Presiding Judge.

Plaintiff Gilbert filed her complaint in this action for damages against defendant Douglas on May 20, 1988. The claim arose from an automobile collision which occurred on May 21, 1986. On June 2, 1988, notorious service upon defendant was attempted by a Fulton County Marshal leaving the complaint and summons with Ruth Hatcher at her home, located at 568 Church St., Atlanta, Fulton County, Georgia. Defendant answered and raised several jurisdiction defenses regarding insufficiency of service, improper venue and lack of jurisdiction over the person of the defendant.

During a deposition taken September 2, 1988, defendant stated that he lived in Greenville, Meriwether County, the mailing address being P. 0. Box 348; and defendant further testified that his apartment was on Hill Street, about a block from the post office, and that the number on the door was 348. Defendant also explained that his father resided at the Fulton County address and that he had not lived there, but at the Meriwether County address, since approximately June of 1986.

Plaintiff did not obtain service upon defendant in Meriwether County. On December 20, 1988, defendant filed his motion to dismiss on the grounds of lack of jurisdiction over the person of defendant, insufficiency of process and service of process, and the running of the statute of limitation. Affidavits and other evidence were filed in support of and in opposition to defendant’s motion to dismiss. This interlocutory appeal is taken from the denial of defendant’s motion to dismiss. Held:

Implicit in the state court’s denial of defendant’s motion to dismiss is a factual finding that on the date of the filing of this action, May 20, 1988, defendant resided at the Fulton County address. Franek v. Ray, 239 Ga. 282, 283-285 (236 SE2d 629). The primary issue presented on appeal is whether there is any evidence authorizing the state court’s resolution of the factual issue concerning defendant’s residence in favor of plaintiff. Specifically, we are concerned with whether the circumstantial evidence upon which plaintiff relied is sufficient to overcome the direct, positive testimony upon which defendant relies.

Plaintiff relies upon the affidavits of two persons and certain documentary evidence. First, the affidavit of the marshal who delivered the documents into the hands of Ruth Hatcher states only that she was told the documents would be passed on to defendant and provides no direct evidence concerning the location of defendant’s residence.

The affidavit of the Postmaster of the United States Post Office for Greenville (Meriwether County), Georgia stated that post office box 348 (which defendant had identified as his address) was not rented in defendant’s name and had been rented to the same family for the past thirteen years. However, the postmaster also stated that no record was made as to an addressee on mail going to a post office box.

Plaintiff also relied on a number of items of documentary evidence. Defendant’s Georgia driver’s license, reflects the Fulton County address. However, the license was issued on May 6, 1986, two years prior to the date at issue.

The remaining documents presented by plaintiff are all connected with defendant’s employment and all show the Fulton County address. Defendant’s application for employment is dated May 21, 1986. Two tax forms signed by defendant are dated September 15 and 16, 1988. Additionally, two workers’ compensation forms and a health insurance form are dated in June of 1987. However, according to the affidavit of the president of defendant’s employer, addresses were not updated by the employer so that the address shown on these forms merely reflected that which appears on the 1986 employment application.

In addition to his own statements and those of his employer, defendant presented the affidavits of four other individuals who provided direct evidence as to the location of defendant’s residence. Ruth Hatcher stated that she told the marshal who left the suit papers that defendant did not reside with her at the Fulton County address. Defendant’s father stated that he (the father) had resided at the Fulton County address for fifteen years and that defendant had lived there only for two or three days in May of 1986. Two of defendant’s neighbors at the Meriwether County address stated that they live near defendant, know defendant and his family, and see defendant on a daily basis. One of the neighbors states that defendant has lived at the Meriwether County address for two to three years while the second neighbor does not state the duration of defendant’s residence near her.

“The test is whether the circumstantial evidence is ‘perfectly consistent’ or ‘inconsistent’ with the direct evidence. [Cits.]” Mealer v. Gen. Cinema &c. Ga., 190 Ga. App. 419, 420 (379 SE2d 192). “[Circumstantial evidence which could be taken as inconsistent with the direct, positive testimony is sufficient to get the case to a jury. However, the rule where the circumstantial evidence is consistent with the direct, positive testimony is different. ‘Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.’ Myers v. Phillips, 197 Ga. 536, 542 (29 SE2d 700) (1944).” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 781 (257 SE2d 186).

Applying this test to the facts, we find plaintiff’s circumstantial evidence insufficient to create an issue of fact concerning the location of defendant’s residence on the date this action was filed. Even if, as plaintiff contends, the credibility of defendant and Ruth Hatcher is viewed as having been compromised, there remains positive, uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by plaintiff, which shows that defendant resided at the Meriwether County address. Plaintiff’s circumstantial evidence did not create an issue of fact.

Decided May 7, 1990

Rehearing denied May 30, 1990.

Jenkins & Eells, Frank E. Jenkins III, Sharon C. Barnes, for appellant.

Nadler, Beskin & Scott, Gary M. Nadler, for appellee.

Pursuant to the Constitution of the State of Georgia of 1983, Art. VI, Sec. I, Par. VIII, and the Uniform Transfer Rules (see 251 Ga. 893), particularly Rule T-4, defendant’s motion to dismiss must be treated as a motion to transfer. Since the uncontradicted evidence shows that the State Court of Fulton County, Georgia, lacks venue and personal jurisdiction of defendant, it was error to deny defendant’s motion. The State Court of Fulton County, Georgia, is directed to transfer the case sub judice to the Superior Court of Meriwether County, Georgia, in the absence of any State Court of Meriwether County, Georgia.

Judgment reversed and case remanded with direction.

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


text:
    A90A0486.
    PADGETT v. M & M SUPER MARKET, INC.
    (395 SE2d 245)
   Sognier, Judge.

Margie Padgett appeals from the grant of summary judgment in favor of M & M Super Market, Inc., in this slip and fall case.

Appellant presented evidence that on the afternoon of November 21, 1987, she slipped and injured herself while walking through the produce department of appellee’s grocery store with her daughter. Appellant stated in her deposition that afterwards, she looked down and saw what she characterized as “a dirty piece of brown lettuce” on the floor beside her foot. Appellant’s daughter, Frances Padgett, confirmed the presence of the “very dark lettuce” in her affidavit and averred that after she and appellant spoke to the manager on duty, Curtis Richardson, he returned with them to the produce department and picked up several other pieces of produce on the floor in that area, “stating, T told those guys to clean this area up earlier.’ ”

In his deposition, Richardson denied making the statement averred to by Padgett and stated that when he examined the area where appellant claimed she had fallen, he did not see anything on the floor. He also stated that an outside contractor had cleaned the floors before the store opened at 8:00 a.m. and that the employees in the produce department followed a set schedule sweeping the floor every hour “[bjecause it’s constantly things being fell [sic] on the floor in the produce department.” Based on store records Richardson stated that the produce department floor had been swept at 2:00 p.m. and that he spoke with appellant and Padgett at 2:20 p.m., after appellant’s fall.

Appellant contends the trial court erred by granting summary judgment in favor of appellee. We agree and reverse. “Negligence issues are not susceptible of summary adjudication except in plain, palpable and indisputable cases. [Cits.]” Southerland v. Dalton Paving &c., 186 Ga. App. 743, 744 (368 SE2d 193) (1988). “The evidence must be construed most favorably to the party opposing the motion for summary judgment; this party must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. [Cits.]” Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989). Applying this well established rule, it is apparent that a reasonable inference can be drawn from the spontaneous statement attributed by Padgett to Richardson while he was acting within the scope of his authority as manager of appellee’s store, that appellee through its employees had actual knowledge that produce, including the lettuce on which appellant slipped, was present on the floor of the produce department. Richardson’s statement clearly constituted an admission against interest by an employee-agent and would be admissible either under OCGA § 24-3-33 or under the res gestae exception, OCGA § 24-3-3. Although Richardson denied making the statement, Padgett’s affidavit containing Richardson’s statement is sworn testimony of personal knowledge that Richardson earlier made a statement inconsistent with the sworn testimony he later gave in support of the motion for summary judgment, see Lowe v. Hadley, 193 Ga. App. 525 (388 SE2d 394) (1989), and as such was sufficient to permit appellant, as the non-moving party, to withstand appellee’s motion for summary judgment. Id. Although appellee argues that an inference can be drawn from Richardson’s statement which is consistent with his deposition testimony (that “those guys” had obeyed the order to “clean this area up,” giving rise to the possibility that the piece of lettuce on which appellant fell had been dropped after the ordered cleaning), determination of which inference to draw from Richardson’s statement, as well as resolution of the factual question whether Richardson made the statement at all, is for the jury, not the trial court.

“ ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ [Cits.] In the instant case the evidence does not mandate a judgment as a matter of law; a scrupulous sifting and weighing of the evidence by a jury is required.” Bragg v. Missroon, 186 Ga. App. 803, 805-806 (368 SE2d 564) (1988). Accordingly, the trial court erred by granting summary judgment in favor of appellee.

Decided May 17, 1990

Rehearing denied May 30, 1990.

Kennedy, Lewis, Smart & Brannon, Don Smart, for appellant.

Brannen, Searcy & Smith, Leesa A. Bohler, Wayne L. Durden, for appellee.

Judgment reversed.

Carley, C. J., and Pope, J., concur. McMurray, P. J., disqualified.


text:
    A90A0031.
    In the Interest of J. D., a child.
    (395 SE2d 280)
   Carley, Chief Judge.

A delinquency petition was filed, alleging that the sixteen-year-old appellant had committed the criminal offense of armed robbery. Acting pursuant to OCGA § 15-11-39, the juvenile court conducted a hearing to determine whether the offense should be transferred for prosecution in the superior court. The juvenile court ordered the transfer and appellant appeals from that order.

1. The State contends that error, if any, in ordering the transfer should be considered harmless, insofar as the superior court nevertheless has concurrent jurisdiction over the offense of armed robbery. This assertion is without merit. “Where courts have concurrent jurisdiction, the first court to take jurisdiction will retain it. [Cit.]” J. G. B. v. State of Ga., 136 Ga. App. 75, 77 (2) (220 SE2d 79) (1975). “[Jurisdiction, once exercised, becomes exclusive rather than concurrent, subject to the right of either court to transfer to the other.” J. T. M. v. State of Ga., 142 Ga. App. 635, 638 (2) (236 SE2d 764) (1977). It was the juvenile court that first assumed jurisdiction over appellant. Accordingly, its jurisdiction was exclusive, unless and until the case was properly transferred to the superior court. It follows that the question of whether the juvenile court was authorized to transfer the case to the superior court must be addressed, since, if it was erroneous to do so, that error would clearly not be harmless.

2. Although OCGA § 15-11-39, by its terms, no longer requires that a transfer be based upon an express showing and determination that the child is not amenable to treatment or rehabilitation, amenability to treatment has nevertheless been subsumed within the concept of the “interest of the child.” See In re E. W., 256 Ga. 681 (2) (353 SE2d 175) (1987). However, our Supreme Court has also held that, to warrant a transfer, the State need not always prove that the child is not amenable to treatment and that the juvenile court’s order need not always reflect why the child is not amenable to treatment. “We intended such requirements to be necessary only in cases where the [S]tate seeks the transfer based at least in part on the child’s non-amenability to treatment in the juvenile system, and the juvenile court relies in part on the juvenile’s non-amenability to warrant the transfer. [Cit.]” State v. M. M., 259 Ga. 637, 639 (1) (386 SE2d 35) (1989).

In the instant case, the juvenile court relied, in part, upon appellant’s non-amenability to treatment as a basis for ordering the transfer. Accordingly, the juvenile court was required to state in its transfer order the reasons why it found that appellant was not amenable to treatment. The juvenile court’s order does contain the requisite findings, concluding that appellant was not amenable to treatment for the following reasons: “1) Nature of alleged offense; 2) Involvement with adult co-perpetrators. . . .” On appeal, appellant does not contend that the evidence would not authorize the juvenile court to make these findings. Instead, it is urged only that these findings are otherwise insufficient to support the juvenile court’s ultimate conclusion that appellant is not amenable to treatment.

Appellant cites J. G. B. v. State of Ga., supra at 77 (2), for the proposition “that the number and severity of the offenses, standing alone, can [not] establish the absence of amenability to rehabilitation.” (Emphasis supplied.) In the instant case, however, the juvenile court did not rely solely upon the fact that appellant had committed the serious offense of armed robbery. As noted, the juvenile court also found that appellant had committed that serious offense with adult co-perpetrators. A finding that a sixteen-year-old has committed the offense of armed robbery in conjunction with adult co-perpetrators clearly does not demand the conclusion that the child is necessarily amenable to treatment as a juvenile. It is the juvenile court that actually has the child before it. Consequently, that court is in a much better position than an appellate court to make the subjective determination whether any given sixteen-year-old child who has been shown to have joined with adult co-perpetrators in the commission of a serious offense, such as armed robbery, is amenable to treatment as a juvenile or is only amenable to that same treatment which will be afforded to those adults with whom he chose to act.

Appellant also cites C. L. A. v. State of Ga., 137 Ga. App. 511, 512 (4) (224 SE2d 491) (1976). In that case, this court reversed a transfer order on the ground that the juvenile court had relied “in part upon the nature of the crime. This alone is not sufficient to satisfy the requirements of the statute. [Cit.]” (Emphasis supplied.) Appellant urges that C. L. A. should be read for the proposition that a finding of non-amenability to treatment is not authorized if it is based “in part” upon the serious nature of the crime and also “in part” upon the child’s participation therein with adult co-perpetrators. Admittedly, there is certain other language in C. L. A. which might support such an interpretation of the holding in that case. See C. L. A. v. State of Ga., supra at 512 (3). It is also readily apparent, however, that the language from C. L. A. that is quoted above is internally inconsistent. The juvenile court could not have based its finding of non-amenability to treatment upon one factor “alone” if the juvenile court had relied upon that factor “in part.” Accordingly, we have undertaken a review of the record in C. L. A. That review demonstrates that, as in J. G. B., supra, the juvenile court in C. L. A., relied solely upon the nature of the crime as the basis for its finding of non-amenability. Thus, C. L. A. is also distinguishable from the instant case and is not authority for the proposition that, as a matter of law, a finding of a juvenile’s non-amenability to treatment can not be based upon a showing of. his participation in a serious crime with adult co-perpetrators.

Decided May 30, 1990.

M. E. Thompson, Jr., for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

As previously noted, the juvenile court has the child before it when it makes the determination that a transfer is warranted. If the juvenile court makes the determination that the commission of the serious offense of armed robbery by a sixteen-year-old acting in concert with adult co-perpetrators warrants the conclusion that the child is not amenable to treatment as a juvenile, then we, as an appellate court, will not second-guess that determination. Accordingly, the order of transfer in the instant case is affirmed.

Judgment affirmed.

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


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0044.
    HULSEY v. STANDARD GUARANTY INSURANCE COMPANY.
    (395 SE2d 282)
   Beasley, Judge.

Hulsey was sued due to an automobile collision. His uninsured motorist carrier, Standard, was also served as provided by OCGA § 33-7-11 (d). It filed an answer in Hulsey’s name and provided him with legal representation. Hulsey, by his own retained counsel, filed a counterclaim which resulted in a money judgment for Hulsey. The original plaintiff was deemed to be an uninsured motorist and the court entered judgment against Standard for the amount awarded against this tortfeasor. Pursuant to OCGA § 9-11-60 (d), the court set aside the judgment against Standard because it was not a party against whom a judgment could be entered.

The issue on appeal is whether an uninsured motorist carrier is subject to judgment in favor of its insured when it is served by the original plaintiff and its insured prevails against the tortfeasor plaintiff but the carrier has not filed an answer or otherwise appeared in its own behalf. Appellant’s sole source of authority for his position is State Farm &c. Ins. Co. v. Yancey, 188 Ga. App. 8 (371 SE2d 883) (1988), aff’d 258 Ga. 802 (375 SE2d 39) (1989), but the issue was not reached in that case. Nor was it reached in Travelers Ins. Co. v. Segan, 190 Ga. App. 66 (378 SE2d 367) (1989), but in Division 1 the court anticipated the holding in this case.

Hulsey contends that service subjects the carrier to the jurisdiction of the court as a party in the suit, so that its failure to answer amounts to default. That is not what the statute provides. It is remedial for the carrier. Service under OCGA § 33-7-11 (d) is in the nature of notice and merely gives the carrier the right to “file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.” J. C. Penney &c. Ins. Co. v. Williams, 149 Ga. App. 258, 260 (1) (253 SE2d 878) (1979) (quoting predecessor statute to OCGA § 33-7-11 (d)). The option of becoming a party is thus left to the carrier. It is “permitted” to become a party; it has the “option” and “may elect” to do so. Londeau v. Davis, 136 Ga. App. 25 (1) (220 SE2d 43) (1975).

The statute, by which the plaintiff is required to serve- the carrier, does not by its operation subject the defendant’s uninsured motorist carrier to party status in every case. Whether this would be wise or not, considering that it would add to each such tort suit a separate issue of contract liability not involving the original parties, the point is that the legislature has not so provided. “A statute should be given logical meaning unless a contrary legislative intent plainly and unequivocally appears from the statute and must square with common sense and sound meaning.” Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88) (1978).

The trial court was correct in its final ruling, and Hulsey will have to assert his rights under his insurance contract with Standard in another action.

Judgment affirmed.

Pope, J., concurs. Deen, P. J., concurs specially.

Decided May 30, 1990.

Ronald L. Hilley, for appellant.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for appellee.

Deen, Presiding Judge,

concurring specially.

While concurring fully, it is done nevertheless reluctantly. We are requiring Hulsey to file two lawsuits when one should do, but that seems to be the law.


text:
    A90A0432.
    INMAN v. THE STATE.
    (395 SE2d 52)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of molesting her three-year-old daughter. She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant enumerates as error the denial of her motion for new trial, urging that venue was not proven beyond a reasonable doubt.

A review of the transcript shows that the evidence as to venue, though slight and circumstantial, was sufficient. “ ‘It is well recognized in this [S]tate that slight evidence is sufficient to establish venue, where there is no conflicting evidence. [Cits.] . . . [Circumstantial as well as direct evidence may be used to establish venue. [Cit.] Venue is a question to be decided by the jury and its decision will not be set aside as long as there is . . . evidence to support it. [Cits.]’ [Cit.] Although there was some evidence . . . that the victim [lived in Michigan for a month during the period alleged in the indictment], this alone was not sufficient to present conflicting evidence that the [molestations] occurred in that [State]. The evidence at trial was sufficient to authorize the jury’s finding that venue was in [Hall] County, Georgia. Appellant’s enumeration of error regarding lack of venue is without merit.” Jones v. State, 245 Ga. 592, 596-97 (2) (266 SE2d 201) (1980). See also Amerson v. State, 177 Ga. App. 97, 99 (2) (338 SE2d 528) (1985); Taylor v. State, 176 Ga. App. 567 (1) (336 SE2d 832) (1985).

2. During the direct examination of one of the State’s expert witnesses, appellant objected that the witness had testified to the opinion of another expert and not to her own opinion. The trial court’s failure to sustain this objection is enumerated as error.

“While an expert witness may support his opinion by reference to books, statistical sources and other learned sources, his testimony is inadmissible when it is merely a restatement of a textbook opinion rather than an independent expression of his own personal opinion. [Cits.]” Department of Transp. v. Brand, 149 Ga. App. 547 (1) (254 SE2d 873) (1979). Contrary to appellant’s assertions, however, no erroneous hearsay opinion was given in the instant case. The record shows that the contested testimony was a mere background reference to the development of the psychological test that the testifying witness had administered to the victim and upon which the testifying witness based her own opinion that the victim evidenced characteristics of having been sexually abused. The trial court did not err in failing to sustain appellant’s objection to this background testimony.

Decided May 30, 1990.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A0459.
    STATE OF GEORGIA v. CHASE.
    (395 SE2d 284)
   Carley, Chief Judge.

The relevant facts in this Uniform Reciprocal Enforcement of Support Act (URESA) case are as follows: When appellant-husband and appellee-wife were divorced in Michigan in 1981, he was granted custody of their three minor children, but she was not ordered to pay any child support. In 1987, however, appellant initiated a URESA action in Michigan, alleging that appellee had a duty to support the children and that she was subject to the jurisdiction of the Superior Court of Bartow County. Before the URESA action was formally transferred to Georgia for disposition, appellant also initiated proceedings in Michigan to modify the original divorce decree so as to require appellee to pay child support. When appellee agreed to pay $10 per week in child support, the Michigan court modified the original divorce decree in conformity with this settlement agreement. Only after this Michigan modification action had been concluded was appellant’s URESA petition received for filing in the Superior Court of Bartow County. In the Georgia URESA action, appellee was originally ordered to pay $80 per week in child support, but she moved the trial court to set aside its order. Appellee’s motion was granted, the trial court concluding that appellant had “elected his choice of remedies . . . and elected to pursue the modification of child support in Michigan, therefore the matter brought by the URESA action was fully litigated in the Michigan Court and the proceeding in Bartow County, Georgia is therefore nugatory.”

Appellant filed an application for a discretionary review of the trial court’s order granting appellee’s motion to set aside. That application was granted and this appeal results.

1. Appellee urges that, in the absence of a transcript, an appellate court is bound to assume that a trial court’s findings are supported by competent evidence. See generally Dashiell v. Standard Mgmt. Co., 174 Ga. App. 442 (2) (330 SE2d 179) (1985). Although this is a correct principle of appellate review, it is not applicable to our consideration of the instant appeal. It is not the trial court’s findings of fact that are disputed. Instead, what is at issue is the trial court’s conclusion of law as to the legal effect that a prior foreign judgment has on a URESA action. A certified copy of that foreign judgment is in the record, and the lack of a transcript is no barrier to an appellate consideration of the merits of this appeal.

2. Appellant urges that the instant appeal is controlled by the holding in State of Ga. v. McKenna, 253 Ga. 6, 8-9 (315 SE2d 885) (1984); “[S]ince URESA is an independent proceeding which does not affect, and is not bound by, prior foreign judgments, a responding court may enter a support order that is greater than, as well as less than, a prior judgment.” Appellee urges that State of Ga. v. McKenna, supra, is not controlling because it is distinguishable.

There are factual differences. In State of Ga. v. McKenna, supra, the foreign child support judgment preceded the initiation of URESA proceedings. In the instant case, initiation of URESA proceedings preceded the foreign child support judgment. However, this factual distinction is of no legal significance. Neither the existence of a foreign child support judgment nor the terms thereof have any bearing whatsoever on an obligee-parent’s right to initiate and pursue a URESA action to enforce an obligor-parent’s duty to provide child support. Under URESA, “a duty to support may be found in the responding state whether or not a prior judgment of support has been entered; this duty ‘includes any duty of support imposed or imposable by law.’ OCGA § 19-11-43. . . . [T]he remedies of URESA ‘are in addition to and not in substitution of any other remedies.’ OCGA § 19-11-45.” (Emphasis supplied.) State of Ga. v. McKenna, supra at 8. It follows that, regardless of when appellant may have initiated and pursued his modification remedy to satisfaction in Michigan, he was otherwise entitled to initiate and pursue his independent URESA remedy to satisfaction in Georgia. The trial court erred in granting appellee’s motion to set aside its original URESA order awarding appellant child support.

3. Appellant’s remaining enumeration of error is moot.

Judgment reversed.

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

Decided May 30, 1990.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

C. Gregory Culverhouse, for appellee.


text:
    A90A0567.
    ROBERTS v. THE STATE.
    (395 SE2d 54)
   Beasley, Judge.

This case involves the scope of voir dire.

1. Defendant, a black man, was charged with rape (OCGA § 16-6-1), aggravated assault (OCGA § 16-5-21), terroristic threats and acts (OCGA § 16-11-37), and burglary (OCGA § 16-7-1) at the home and upon the person of a white widow who was age 75 at trial, eleven months after the event. The first trial ended in mistrial. At the beginning of the second trial, the State moved in limine “to prevent defense counsel from making racial remarks in either the jury selection process or during the trial.” After the State explained its motion, opposing counsel responded that defendant had a right to individual examination in such manner as might unearth, illustrate, or indicate any racial inclination, leaning, prejudice, or bias which a prospective juror might have. He cited OCGA § 15-12-133, cases applying it, and, with respect to Federal Constitutional rights, several United States Supreme Court cases.

In reply to the court’s inquiry, counsel posed the question he wanted to ask: “The accused is a black man, the alleged victim in this case is a white female. With that on your mind is there any one that would have any prejudice, bias or leaning against the defendant simply because he is black?”

The State suggested that the general statutory questions put by the court would adequately cover the matter if race were included in the question as to bias. The court agreed to ask the general question with the addition of calling attention to the fact that “there is black involved and there is white involved” but ruled that defendant’s counsel could not ask whether a prospective juror was prejudiced because defendant is black and the victim is white.

After much discussion, the court indicated that it would include the race reference in the general question regarding bias and that, based on Legare v. State, 256 Ga. 302 (348 SE2d 881) (1986), it would restrict defendant’s race bias related questions to whether any juror held the opinion that a white police officer would be more likely to tell the truth than a black defendant. Defendant acknowledged appreciation for that permission but reiterated his objection to the limitation on voir dire questions as to race.

The statutory question was not enlarged to specifically mention race.

When defendant’s counsel questioned the panel, he abided by the court’s rulings. He asked the question concerning white police officer versus black defendant credibility. The only other question touching on race was whether any prospective juror was a member of the Ku Klux Klan, Black Panthers or Neo-Nazis. There were no responses to either question.

On appeal, defendant contends that the court interfered in limiting the latitude of his voir dire on the issue of racial bias. Applying the Supreme Court’s interpretation of the breadth of the right contained in OCGA § 15-12-133, as summarized in the Legare case, supra, he is correct. The right which the statute gives has wider girth than the trial court allowed defendant to exercise. The manner by which he deemed he could best uncover racial bias is not outside the broad boundaries. While we cannot say that the direct frontal question as formulated by defendant would have been effective for the purpose, neither can we say that his technique would have failed.

The question he was permitted to ask addressed possible prejudice as to witness credibility; it did not address “any inclination, leaning, or bias” which a juror might have because of the fact and circumstance that the defendant was a black male and the victim an elderly white widow. Neither would the non-specific statutory question likely evoke an admission in so sensitive a realm of attitude.

As in Legare, we cannot conclude that the limitation was harmless error.

There being a reversible statutory violation, we do not address the matter of constitutional rights. See Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986).

2. No argument was presented with respect to the second enumerated error regarding jury charge, so it is considered abandoned. Rule 15 (c) (2).

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Been, P. J., dissents.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent to the majority opinion. The trial transcript reveals that defense counsel was permitted at the close of voir dire to ask the entire array of prospective jurors the following question: “In your opinion would a white police officer be more likely to tell the truth than a black defendant, Mr. Roberts here? Do any of y’all believe that?” The record indicates that there was no response — affirmative, negative, or otherwise — to this question.

Decided May 30, 1990.

Jerry M. Daniel, for appellant.

J. Lane Johnston, District Attorney, Rene J. Martin III, Assistant District Attorney, for appellee.

Appellant contends that OCGA § 15-12-133 confers upon a criminal defendant the right to question individual prospective jurors regarding “any inclination, leaning or bias” which that person might have that would possibly influence his or her verdict, and that the court’s exercising its discretion in limiting the number and nature of questions concerning possible racial prejudice violated this statute. Specifically, defense counsel wished to attempt to expose any such prejudice by asking a question concerning a white female victim and a black male defendant. The record shows that counsel was permitted to undertake to do this by questioning extensively each individual member of the array concerning familial, social, fraternal (including Ku Klux Klan and Neo-Nazi), and other possible associations with defendant, counsel, witnesses, and judicial and law enforcement personnel, and that those giving answers which might even remotely suggest any bias were noted and eliminated from the jury panel. Additionally, according to the trial transcript, defense counsel asked the question quoted above at the end of voir dire, without attempting to ask further questions aimed at exposing racial bias.

I am unable to see this alleged limitation upon the questioning of jurors as improper or as causing any prejudice to the defendant/appellant, or as violating any right given by the Constitutions or statutes of the United States or of Georgia. Moreover, I find no conflict between the trial court’s ruling and the holding in Legare v. State, 256 Ga. 302 (348 SE2d 881) (1986), relied upon by the majority.

I must therefore respectfully dissent.


text:
    A90A0926.
    SAUNDERS v. THE STATE.
    (395 SE2d 53)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of two counts of child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant enumerates the general grounds. “There is no requirement that the testimony of the victim of child molestation be corroborated. [Cit.] Nevertheless, the testimony of the victim in this case was corroborated in several material respects. ... [A] rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant’s guilt of [each act of] child molestation beyond a reasonable doubt. [Cit.]” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988).

2. Appellant enumerates as error the trial court’s purported allowance of an expert witness for the State to testify as to the “ultimate issue” in the case. However, this enumeration is not supported by argument or citation of authority and so is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Smith v. State, 193 Ga. App. 208, 210 (3) (387 SE2d 419) (1989).

3. The trial court permitted adult witnesses to testify to certain statements made by the victim. Also, a videotape of an interview with the victim and a child therapist was admitted into evidence. Urging that, in each instance, the trial court failed first to find “sufficient indicia of reliability” pursuant to OCGA § 24-3-16, appellant enumerates these evidentiary rulings as error.

The videotape was admitted without objection. Accordingly, any error otherwise assertible would be waived. See generally Bridgers v. State, 183 Ga. App. 98, 99 (1) (357 SE2d 894) (1987). Moreover, the record shows that the foundation which was laid by the State provided “sufficient indicia of reliability.” Newberry v. State, 184 Ga. App. 356, 357 (2) (361 SE2d 499) (1987).

As to the testimony by the adult witnesses relating the victim’s statements, a finding of “sufficient indicia of reliability” inheres in the trial court’s admission of such testimony. Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988).

4. Appellant enumerates as error the denial of his motion for new trial on the ground that the State improperly withheld exculpatory evidence.

The record shows that appellant did not file a Brady motion. Accordingly, there would be no reversible error unless the State withheld “evidence which creates a reasonable doubt of guilt which did not otherwise exist. [Cit.]” Williams v. State, 250 Ga. 463, 465 (298 SE2d 492) (1983). The trial court determined that no such exculpatory evidence had been withheld from appellant. We find no error in the trial court’s ruling. “Appellant has failed to show that any of the evidence alleged to have been improperly withheld was favorable and material and that he was, in any manner, denied a fair trial. [Cit.]” Holbrook v. State, 162 Ga. App. 400, 402 (1) (291 SE2d 729) (1982).

5. Appellant’s remaining enumerations of error are controlled adversely to him by this court’s opinion in the appeal of his co-defendant. Inman v. State, 195 Ga. App. 805 (_ SE2d _) (1990).

Decided May 30, 1990.

J. Richardson Brannon, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    A90A0167.
    ISAACS et al. v. WILLIAMS BROTHERS, INC. et al.
    (395 SE2d 11)
   McMurray, Presiding Judge.

Peggy Isaacs and Donald Isaacs (plaintiffs) brought an action against Williams Brothers, Inc., and John P. Coker (defendants) for damages which allegedly arose when defendant Coker drove his Williams Brothers, Inc., truck into the rear of Ms. Isaacs’ vehicle. The case was tried before a jury and the evidence revealed the following:

On July 30, 1985, defendant Coker was employed as a truck driver for defendant Williams Brothers, Inc. At about 11:50 that morning, defendant Coker was returning to his place of employment after making a delivery for his employer when he collided into the rear of Ms. Isaacs’ vehicle. Ms. Isaacs’ vehicle was stopped at an intersection, yielding to an oncoming emergency fire truck. Ms. Isaacs was subsequently treated for serious bodily injuries. The jury returned a verdict for Ms. Isaacs in the amount of $15,154. Mr. Isaacs was awarded nothing for his loss of consortium claim. The $15,154 verdict was reduced by $10,000 to reflect personal injury protection benefits already paid to Ms. Isaacs. This appeal follows the denial of the plaintiffs’ motion for new trial. Held:

1. In their first enumeration, the plaintiffs contend the trial court erred in charging the jury on sudden emergency.

“ ‘[O]ne who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.’ [Cits.]” Ware v. Alston, 112 Ga. App. 627, 629 (1) (145 SE2d 721). In the case sub judice, it is apparent from the jury’s verdict that defendant Coker was found to be negligent. Consequently, the charge on sudden emergency, even if it was not authorized by the evidence, was harmless.

2. Next, plaintiffs contend the trial court erred in charging the jury on comparative negligence.

“It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. OCGA § 5-5-24 (a).” Morris v. DeLong, 183 Ga. App. 124, 125 (2) (358 SE2d 285). In the case sub judice, plaintiffs never complained of the trial court’s charge on comparative negligence. Further, we find no blatant or prejudicial error in the charge of which the plaintiffs complain. See OCGA § 5-5-24 (c). Consequently, this enumeration presents nothing for review.

3. In their third enumeration, plaintiffs contend the trial court erred in excluding the deposition testimony of their medical expert regarding Ms. Isaacs’ “permanent disability as a result of the collision.”

An examination of the trial transcript shows that defense counsel objected to a portion of the deposition testimony of plaintiffs’ expert witness, Dr. John P. Lenhart. Defense counsel complained that Dr. Lenhart’s testimony was “unresponsive” and that “there was no foundation for the opinion stated therein.” The trial court sustained the objection and excluded the following testimony:

“[Plaintiffs’ attorney:] Doctor, what, if any, permanent disability will Mrs. Isaacs suffer? [Dr. Lenhart:] She has . . . had quite a few problems since I saw her in terms of as we develop the entire picture of what’s actually wrong with her. It’s fairly expensive. It involves closed head trauma in terms of the memory problems that have occurred, and which occurs when the brain is jarred from side to side. It bounces back and forth inside the skull. My specialty of rehabilitation medicine, that is what we treat. We treat closed head injuries. We have a whole head injury unit, and that is one of the common occurrences that happens. Not everybody gets this, but it depends upon the impact, and how much jarring actually occurs inside the skull as it bounces back and forth, and that’s when the damage actually occurs — [Defendants’ attorney:] I object to the responsiveness of the answer. Also, the fact there has been no foundation laid upon which he could state the opinions he just made. [Plaintiffs’ attorney:] Just go ahead. [Dr. Lenhart:] I lost my train of thought. Based upon the extensiveness of her injury, including the head, the head damage in terms of the cognitive impairment afterwards, the recall problems, then we have the neck problems, which she originally came for. On top of that, we investigated and found the change in the low back, as well. I have not calculated what her impairment will be, but at least 20 percent total body. [Plaintiffs’ attorney:] I have no further questions at this time.”

The trial court did not err in excluding Dr. Lenhart’s testimony. First of all, much of Dr. Lenhart’s testimony was unresponsive to the question. Secondly, that part of the testimony which was responsive to the question did not relate to Ms. Isaacs’ “permanent disability as a result of the collision.” It related to Ms. Isaacs’ disability generally. This testimony was irrelevant absent a foundation showing that Ms. Isaacs’ permanent disability was related to the collision. See OCGA § 24-2-1.

Decided May 9, 1990

Rehearing denied May 31, 1990

John H. Ridley, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Wayne D. McGrew III, for appellees.

4. Finally, plaintiffs complain that the trial court erred in admitting certain medical records into evidence. However, we do not reach this enumeration because plaintiffs did not object to the medical records which were admitted into evidence by defendants. See Russell v. Wickes Lumber, 190 Ga. App. 16, 17 (3) (378 SE2d 148).

Judgment affirmed. Sognier, J., concurs.

Carley, C. J., concurs in Divisions 1, 2 and 4 and in the judgment.


text:
    A90A0447.
    MOORE v. THE STATE.
    (395 SE2d 13)
   McMurray, Presiding Judge.

Defendant Moore appeals his conviction of rape, aggravated assault, and aggravated sodomy. The sole enumeration of error addresses the exclusion of the testimony of two defense witnesses. Held:

The victim testified that on the night of August 3, 1987, she went to the 121 Club, where she met the defendant, whom she had not previously known. After talking with the defendant until the time of closing, around twelve o’clock, the victim accepted the defendant’s invitation to go and have breakfast with him. They left the 121 Club in defendant’s car and went to a coffee shop. While at the coffee shop they encountered two young men who apparently knew defendant and gave them a ride home. As defendant seemed to be intoxicated the victim drove defendant’s car. After dropping off the two young men, they headed for the victim’s home. At this time the defendant’s behavior changed, “he just appeared drunker, you know, by degrees.” When they arrived at the home of the victim she told defendant that she needed to go in and started to get out of the vehicle. Defendant then threatened her with a knife and ordered her to drive to a remote location where he forcibly had anal and vaginal intercourse with her.

Defendant’s wife testified that he left home on the evening in question and did not return until the following morning. She also identified a portion of a man’s shirt found at the scene of the incident as being the shirt defendant had been wearing on that night.

The State also presented the testimony of a physician who examined the victim and found she had bruises on her neck and around the anus, with rectal irritation and swelling consistent with recent anal intercourse. No trauma to the vagina or seminal fluid was found during the examination and the doctor conceded on cross-examination that the irritation of the anus could have been caused by consensual anal intercourse.

The defendant presented evidence of the victim’s bad reputation for veracity. There was also evidence presented by defendant that pubic combings of the victim failed to reveal the presence of any hair that could be distinguished from her own.

The proffered testimony of the two young men who had been encountered in the coffee shop was ruled inadmissible under the rape shield statute, OCGA § 24-2-3. These two young men, who were brothers, were acquaintances of defendant but had not known the alleged victim before that night. The younger brother would have testified that, while defendant was gone to the rest room, the alleged victim had given his brother her address and telephone number and had given him her daughter’s name and address, told them they were cute and good looking guys, and also told them that she wanted them to come see her. The older brother would have testified as to conversing with the alleged victim and receiving her address while at the coffee shop. The older brother would also have testified that when he and his brother were dropped off at home, “as I stepped out of the car, she stood in my way from getting any further out of the car. She grabbed me by my penis, and kissed me and asked me — well, she said she would rather be with me and not [defendant].”

Defendant argues that the excluded testimony was not inadmissible as evidence of past sexual behavior but was admissible as evidence of existing motive and state of mind under Villafranco v. State, 252 Ga. 188, 193 (1), 194 (313 SE2d 469).

“Under OCGA § 24-2-3 evidence of the past sexual behavior of the complaining witness is admissible where, during an in camera hearing, the trial court finds the accused could have reasonably believed that the victim consented to the conduct of which complaint was made . . .

“OCGA § 24-2-3 ‘is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.’ [Cit.]. . .

“Because there was no evidence concerning [past] sexual behavior by the victim which directly involved participation of defendant, the only basis for permitting evidence of past sexual conduct was that it supported the inference that the accused could have reasonably believed that the conduct of the complaining witness was consensual. OCGA § 24-2-3; Lamar v. State, 243 Ga. 401, 402 (2) (254 SE2d 353) (1979). Defendant had no knowledge of the alleged conduct between the victim and three young men. See Roberts v. State, 158 Ga. App. 309, 311 (2) (279 SE2d 753) (1981).” Jones v. State, 190 Ga. App. 416 (1), 417 (379 SE2d 189).

Decided May 9, 1990

Rehearing denied May 31, 1990

Kenneth E. Futch, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

The particular facts and circumstances of the case sub judice are more closely akin to those in Jones v. State, 190 Ga. App. 416, supra, than those in Villafranco v. State, 252 Ga. 188, supra, relied upon by defendant Moore. In Villafranco v. State, 252 Ga. 188, supra, the defense presented by the defendants in that case was that the sexual acts were consensual. Whereas, in the case sub judice, there is no evidence in the record and transcript raising the issue of consent by the victim. Therefore, the decision in Villafranco v. State, 252 Ga. 188, supra, is not controlling in the case sub judice.

As in Jones v. State, 190 Ga. App. 416, supra, there is no evidence in the case sub judice that defendant Moore had knowledge of the alleged conduct between the victim and the two young men, who were brothers and were acquaintances of defendant Moore.

We fail to see how defendant Moore could have reasonably believed that the victim consented to the alleged conduct of which complaint was made.

Judgment affirmed.

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


text:
    A90A0594.
    VINING v. THE STATE.
    (395 SE2d 17)
   Sognier, Judge.

John Bruce Vining was convicted of aggravated assault and kidnapping, and he appeals.

1. Appellant contends the conviction of aggravated assault merged with the kidnapping conviction and thus should be vacated. Evidence was adduced that on August 27, 1988, appellant came to the car lot where Gail Fleming worked and inquired about selling his van. While Fleming was checking a reference book, appellant put a noose around her neck, and Larry Stewart, appellant’s co-indictee, suddenly appeared and held a gun to Fleming’s head. Appellant handcuffed Fleming and threw her into the back of his van, which had been spedally modified to serve as a cage. Appellant then drove the van for a distance, at one point stopping to allow Stewart, who had been in the back with Fleming, to exit the van and enter another vehicle. Fleming testified that appellant showed her a gun with a silencer on it, told her they were searching for money from the sale of illegal drugs allegedly buried by Fleming’s husband, and stated that if she did not cooperate, she would be killed. After Stewart rejoined appellant and Fleming, appellant sat in the back with Fleming and repeatedly threatened her, saying he would kill her if she did not tell them where the money was buried. Fleming was eventually taken into some woods, tied with duct tape, and set down in front of a hole Stewart had dug. The police, contacted by an alert motorist who had seen appellant and another man (Stewart) dragging a bound Fleming out of the van, arrived on the scene and rescued Fleming.

“The crimes of aggravated assault . . . and kidnapping do not necessarily merge as a matter of law, although they may do so as a matter of fact. [Cit.]” Thornton v. State, 144 Ga. App. 595, 597 (2) (241 SE2d 478) (1978). Appellant was charged with simple kidnapping, not kidnapping with bodily harm. The kidnapping was consummated when Fleming was taken from the car lot, thrown into the van, and prevented from leaving. Miller v. State, 174 Ga. App. 42, 44 (3) (329 SE2d 252) (1985). “Kidnapping is not a continuing offense, and the crime is consummated when the victim is seized.” Id. Appellant’s action in threatening Fleming with the gun to coerce her into telling him where the alleged drug money was hidden constituted a crime separate from the kidnapping as a matter of fact, and accordingly, appellant was properly convicted and sentenced for both offenses. See Williams v. State, 184 Ga. App. 480, 481 (2) (361 SE2d 713) (1987).

2. Appellant contends the trial court erred by denying his motion for a continuance. The transcript reveals that appellant’s attorney announced ready. Shortly thereafter, appellant asked the trial court for a continuance while his family tried to get a private attorney to work with his appointed attorney as “co-counsel.” “ ‘(T)he announcement of ready constitutes a waiver of defendant’s right to a continuance. (Cit.)’ [Cit.]” Bennett v. State, 186 Ga. App. 832, 833 (2) (368 SE2d 789) (1988). Moreover, appellant does not claim that his appointed counsel was not competent or otherwise unqualified to represent him; he does not contend that his request was to replace his appointed attorney with another; and the record does not reflect that any other attorney had made an appearance on appellant’s behalf. While OCGA § 17-8-24 provides as a ground for a continuance the illness or absence of a party’s sole or lead counsel, the statute does not extend to co-counsel. The record establishing that appellant had nine months prior to trial to obtain co-counsel, we find no abuse of the trial court’s discretion in denying appellant’s motion on the day of trial. See Ben nett, supra.

Decided May 14, 1990

Rehearing denied May 31, 1990.

Kenneth D. Kondritzer, for appellant.

Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A90A0118.
    THE STATE v. SLAVNY.
    (395 SE2d 56)
   Beasley, Judge.

The State has been permitted under OCGA § 5-7-2 to appeal a denial of its motion to compel Slavny, charged with abandonment of a dependent child, to submit to human leukocyte antigen blood testing to determine paternity. The court concluded that there was no statutory authority for ordering the blood test and no statutory guidance for allocating the expense.

The abandonment statute, OCGA § 19-10-1, makes no specific provision for the State’s requesting or compelling the defendant to submit to a paternity blood test. It does provide in subsection (f) for the accused to be able to request, agree to, and arrange to pay for such a blood test. It also provides that upon pretrial motion of defendant, the court must order the alleged parent, the known natural parent, and the child to submit to appropriate blood tests and comparisons. The statute’s silence on the State’s authority vel non to request the blood testing, however, does not mean the State lacks that authority.

OCGA § 17-5-21 (a) (5) provides that the court may issue a search warrant for the seizure of any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown. The blood sample of defendant potentially would be tangible evidence of parentage, which is an element of the the crime charged. A search warrant is an appropriate vehicle for obtaining a blood sample from a defendant. See Robinson v. State, 180 Ga. App. 43, 50 (3) (348 SE2d 662) (1986), rev’d on other grounds 256 Ga. 564 (350 SE2d 464) (1986), mod. 181 Ga. App. 742 (354 SE2d 214) (1987).

Consequently, specific provision in OCGA § 19-10-1 for the State’s procurement of blood testing is not necessary. The law is construed as a whole. Lucas v. Smith, 201 Ga. 834, 837 (41 SE2d 527) (1947). See OCGA § 1-3-1 (a).

Appellee is correct in suggesting that if the mother wants to compel a paternity blood test, she should be required to bring a civil paternity action under OCGA § 19-7-40 et seq., for in such an action the court upon motion may order the mother, the alleged father, and the child to submit to appropriate blood tests. OCGA § 19-7-45. But here the State, not the mother, seeks the evidence.

There is no expression of legislative intent requiring the prosecutrix in a criminal abandonment charge to file an ancillary suit to obtain blood test evidence for the State to establish paternity and rendering such test results admissible in the criminal proceeding. To the contrary, the two proceedings are distanced. A criminal abandonment action in which paternity might be established does not provide redress to an aggrieved mother with dependent child which would substitute for a paternity suit under OCGA § 19-7-40 et seq. or a petition for unpaid child support, inasmuch as the criminal action does not address child support arrearage. See, e.g., Barnes v. State, 181 Ga. App. 581 (353 SE2d 76) (1987); Bray v. State, 181 Ga. App. 678, 679 (2) (353 SE2d 531) (1987); Crayton v. State, 166 Ga. App. 544 (305 SE2d 19) (1983).

As for the expense of the test, statutory and case authority provide for allocating it. OCGA § 19-10-1 (f) casts the cost of the party seeking testing, here the State. Moreover, the trial court could not order the defendant putative father to take and pay for a blood test to determine paternity, without a hearing on the merits of the case. See Barnes, supra at 582 (3); Pierce v. State, 251 Ga. 590 (308 SE2d 367) (1983); Boone v. State, 250 Ga. 379 (297 SE2d 727) (1982).

The result is that when the State requests pretrial paternity blood testing for a defendant charged with child abandonment, the State must initially pay the cost. Then “[u]pon the entry of a verdict incorporating a finding of parentage or nonparentage, the court shall tax the expenses for blood tests and comparisons, in addition to any fees for expert witnesses whose testimonies supported the admissibility thereof, as costs.” OCGA § 19-10-1 (f) (2). A verdict incorporating a finding of parentage would authorize the court to tax the cost of the blood test against defendant, OCGA § 17-11-1, or under certain circumstances against the prosecutor/prosecutrix or complainant. OCGA § 17-11-4; See In re Herring, 185 Ga. App. 541, 542 (2) (365 SE2d 139) (1988).

It was error to summarily deny the State’s motion on the basis of lack of statutory authority. The order is reversed and the case is remanded for further consideration in light hereof.

Judgment reversed and case remanded.

Deen, P. J., and Pope, J., concur.

Decided May 31, 1990.

Ralph T. Bowden, Jr., Solicitor, Bradley R. Malkin, N. Jackson Cotney, Jr., Assistant Solicitors, for appellant.

Mark T. Sallee, for appellee.