text:
    A92A1404.
    HAMILTON v. THE STATE.
    (422 SE2d 263)
   Pope, Judge.

Defendant Tony Roe Hamilton a/k/a Tony Rozer was convicted by a jury of three counts of burglary and two counts of criminal trespass. We affirm.

1. Defendant first contends the trial court erred in denying his motion for directed verdict, arguing the evidence was insufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Construed so as to support the verdict, the evidence adduced at trial shows the following: On January 31, 1991, Mr. James Yates discovered that someone had entered his house by breaking out a bedroom window. The house had been vandalized and numerous items of personal property had been taken. On February 4, 1991, the residence of Tracy and James George was burglarized. Again the perpetrator entered through a broken window and took numerous items of personal property.

Susan Uptagrafft testified that on February 14, 1991, her son called her while she was at work and informed her that their house had been burglarized. Upon arriving home Ms. Uptagrafft discovered that two back windows, which had been closed when the family left the house that morning, had been opened and numerous items of personal property had been taken.

On February 19, 1991, and again several days later, law enforcement officials searched defendant’s house. During these searches items of personal property were recovered which the victims of the three burglaries outlined above identified as property belonging to them which had been taken on the dates in question. Testimony was also presented that a latent fingerprint obtained near where the perpetrator entered the Uptagrafft home matched defendant’s left thumb print.

Defendant testified at trial and denied any participation in the burglaries. Defendant attempted to explain his possession of the stolen property by testimony that it had been brought to his house by his brother and another man who initially left the property on his porch. Defendant further testified they did not return for the property for several weeks so he moved it into his house, and when the property remained unclaimed, he “spread” the property throughout his house.

The credibility of witnesses, including the defendant who testifies in his own behalf at trial, is for the jury under proper instructions from the trial court. Brantley v. State, 190 Ga. App. 642 (2) (379 SE2d 627) (1989). Contrary to defendant’s argument on appeal, the evidence in this case was sufficient to enable a rational trier of fact to find the defendant guilty of the crimes charged beyond a reasonable doubt. Williams v. State, 192 Ga. App. 317 (1) (384 SE2d 877) (1989).

2. Defendant next contends it was reversible error for the trial court to permit the State’s expert witness to testify concerning why, in his opinion, fingerprint evidence is “better” than evidence obtained from shoe prints. In support of this enumeration defendant argues that the complained-of testimony constitutes an expression on the ultimate issues to be decided by the jury. The transcript shows the testimony was elicited from the State’s expert witness after the defendant had questioned another State’s witness concerning why a shoe print found near the scene of one of the burglaries was not compared with defendant’s shoe prints. On direct examination the prosecutor then questioned its expert concerning why the investigators did not attempt to compare the shoe tracks with defendant’s shoe prints. The witness responded in part that fingerprints “are a lot better than . . . shoe tracks.” The witness was then allowed, over defendant’s objection, to testify that his preference for fingerprint as opposed to shoe print evidence was based on the fact that fingerprints are unique but since manufacturers make more than one pair of many different styles of shoes, shoe prints are not. Clearly, under the circumstances of this case the testimony was relevant and admissible to explain why the State did not attempt to compare defendant’s shoe print with the shoe print found near the scene of the crime, an explanation made necessary by defendant’s prior questioning of a State’s witness. Moreover, and contrary to defendant’s assertions on appeal, the objected-to testimony did not invade the province of the jury on the ultimate issues to be decided in this case, and did not constitute an impermissible opinion of the State’s expert witness on the evidence presented against defendant at trial. Consequently, this enumeration of error is without merit.

Decided September 8, 1992.

Samuel F. Greneker, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

3. We find no merit to defendant’s final enumeration of error on appeal, inasmuch as defendant’s conviction was not based solely on evidence showing defendant’s fingerprint had been found at the scene of the crime. Consequently, this case is not controlled by Barnett v. State, 153 Ga. App. 430 (265 SE2d 348) (1980), relied on by defendant in his argument to this court, in which the only evidence presented against defendant at trial linking him to the crime charged was fingerprint evidence.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A1439.
    BRADDY et al. v. THE STATE.
    (422 SE2d 260)
   McMurray, Presiding Judge.

Defendants James Braddy and Wanda Braddy were convicted of five counts of aggravated sodomy (Counts 1 and 3), aggravated child molestation (Counts 2 and 4) and child molestation (Count 5). The evidence adduced at a joint jury trial reveals that defendant James Braddy sexually molested his stepson in Barrow County, Georgia, when the child was three years of age and that defendant Wanda Braddy aided and abetted by encouraging the criminal conduct, failing to protect the child and failing to report the abuse. This appeal followed the denial of defendants’ motions for new trial. Held:

1. Defendant James Braddy contends the evidence is insufficient to support the jury’s verdicts. We do not agree.

The victim testified that defendant James Braddy committed acts which constitute aggravated sodomy, aggravated child molestation and child molestation as charged in Counts 3, 4 and 5 of the indictment. The victim’s stepmother testified that the victim, while visiting her and the victim’s father in the State of Florida, informed her that defendant James Braddy committed acts which constitute aggravated sodomy and aggravated child molestation as charged in Counts 1, 2, 3 and 4 of the indictment. Detective Raymond F. Erickson of the Collier County, Florida Sheriff’s Office testified that the victim informed him that defendant James Braddy committed acts which constitute aggravated sodomy and aggravated child molestation as charged in Counts 1, 2, 3 and 4 of the indictment. This evidence was sufficient to authorize the jury’s finding that defendant James Braddy is guilty, beyond a reasonable doubt, of aggravated sodomy as charged in Counts 1 and 3 of the indictment, aggravated child molestation as charged in Counts 2 and 4 of the indictment and child molestation as charged in Count 5 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant Wanda Braddy challenges the jury’s verdicts, arguing the only evidence linking her to the crimes is uncorroborated hearsay that she acted in concert with defendant James Braddy in sexually molesting the victim.

“The Child Hearsay Statute, OCGA § 24-3-16, creates an exception to the hearsay rule for statements made by a child under the age of 14 describing any act of sexual abuse ‘if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.’ The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony. See Reynolds v. State, 257 Ga. 725 (4) (363 SE2d 249) (1988).” Jones v. State, 200 Ga. App. 103 (407 SE2d 85).

In the case sub judice, the four-year-old victim testified, but he did not remember if his mother (defendant Wanda Braddy) was present when defendant James Braddy sexually molested him. On the other hand, Elizabeth Harrison of the Sexual Abuse Treatment Program of Collier County, Florida testified that she interviewed the victim; that the victim informed her of defendant Wanda Braddy’s presence when the child was sexually molested and that the victim exhibits characteristics common to children who have been sexually abused. This evidence, testimony from other witnesses who interviewed the victim and Elizabeth Harrison’s restatement of the young child’s detailed account of how he was sexually molested by defendants, supports a finding that the victim’s out-of-court declarations were reliable and therefore admissible under OCGA § 24-3-16. See Gregg v. State, 201 Ga. App. 238, 239 (3) (411 SE2d 65). This evidence also supports the jury’s finding that defendant Wanda Braddy is guilty, beyond a reasonable doubt, of aiding and abetting defendant James Braddy in the crimes charged in Counts 1 through 5 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra.

3. Defendant Wanda Braddy contends the trial court erred in allowing evidence that she molested the victim, arguing that such proof was not admissible as similar transactions because she was not charged with actually molesting the victim. This enumeration is without merit.

“ ‘ “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible.” (Cits.)’ Boynton v. State, 197 Ga. App. 149 (1) (397 SE2d 615) (1990).” Snyder v. State, 201 Ga. App. 66, 67 (3) (410 SE2d 173). In the case sub judice, the State introduced evidence that defendant Wanda Braddy acted in concert with defendant James Braddy in submitting the victim to acts of child molestation, aggravated sodomy and aggravated child molestation. This evidence is admissible as proof of defendant Wanda Braddy’s motive, intent, scheme, plan and bent of mind in aiding and abetting defendant James Braddy as he committed acts which constitute the crimes charged in Counts 1 through 5 of the indictment.

4. Defendants contend the trial court erred in sentencing them on Counts 2 and 4 of the indictment, arguing that the crimes of aggravated child molestation charged in Counts 2 and 4 merged with the crimes of aggravated sodomy charged in Counts 1 and 3. This enumeration is without merit.

If defendants’ convictions on Counts 1 and 2 were based upon the same single act and their convictions on Counts 3 and 4 were based upon the same single act, then only their convictions for aggravated sodomy under Counts 1 and 3 could stand. OCGA § 16-1-7; LaPalme v. State, 169 Ga. App. 540 (1) (313 SE2d 729). However, the evidence reveals that defendant James Braddy committed acts of aggravated sodomy against the victim on at least two separate occasions in the manner alleged in Counts 1 and 2 of the indictment and that defendant James Braddy forced the victim to perform acts of sodomy on at least two separate occasions in the manner alleged in Counts 3 and 4 of the indictment. The evidence also authorizes a finding that defendant Wanda Braddy was aware that defendant James Braddy repeatedly committed acts of aggravated sodomy against the victim in the manner alleged in Counts 1 and 2 of the indictment and that defendant Wanda Braddy was aware that defendant James Braddy repeatedly forced the victim to perform acts of sodomy on at least two separate occasions in the manner alleged in Counts 3 and 4 of the indictment. Consequently, “LaPalme is inapplicable, since there were multiple, separate acts as bases for each conviction.” McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460).

Decided September 8, 1992.

Donna L. Avans, for appellants.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A1472.
    THE STATE v. MEDLEY.
    (422 SE2d 677)
    Decided September 8, 1992.

      Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellant.

      Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellee.
   Johnson, Judge.

Upon consideration of the entire record and the applicable statutory provisions, we conclude that the application for an interlocutory appeal was improvidently granted. Pursuant to OCGA § 5-7-2, the grant of a motion to suppress is directly appealable and not subject to interlocutory review. See State v. Blosfield, 165 Ga. App. 111 (299 SE2d 588) (1983).

The state also filed a notice of appeal while the application for interlocutory appeal was pending. If that notice of appeal was in response to the grant of the interlocutory appeal it was filed prior to the entry of the order granting the application and was therefore premature. If that notice of appeal was intended to be a notice of direct appeal, in the event the application for interlocutory appeal was denied, it was too late in that it was filed more than 30 days after the entry of the trial court’s order and was therefore untimely. Accordingly, the appeal is dismissed.

Appeal dismissed.

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


author: Beasley, Judge.

text:
    A92A1631.
    ST. SIMONS ISLAND SAVE THE BEACH ASSOCIATION, INC. et al. v. GLYNN COUNTY BOARD OF COMMISSIONERS et al.
    (422 SE2d 258)
   Beasley, Judge.

This is a direct appeal from an order of the Superior Court of Fulton County entered December 26, 1991. It denied a “Petition for Judicial Review of Agency Determination” and affirmed the decision of the administrative law judge of the Board of Natural Resources affirming the issuance of Shore Assistance Committee Permit No. 207 to Glynn County. See the Georgia Shore Assistance Act of 1979, OCGA § 12-5-230 et seq.

Appeals from decisions of the superior court reviewing decisions of state and local administrative agencies must be by application pursuant to OCGA § 5-6-35 (a) (1). The words “by certiorari or de novo proceedings” in OCGA § 5-6-35 (a) (1) relate only to the category “lower courts,” and not, as appellants contend, also to the category “state and local administrative agencies,” into which this case falls. This category includes cases governed by the Administrative Procedure Act, which provides for judicial review by a superior court in OCGA § 50-13-19.

Further judicial review is not of right. Such is the legislative intent, as articulated by the Supreme Court in Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139) (1980): “The clear intent of section (a) (1) . . . was to give the appellate courts . . . the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals. ...” A reason for this summary procedure is “to permit the appellate courts to expedí-, tiously review decisions of the superior courts reviewing decisions of administrative agencies without issuing an opinion in every such case. [Cit.]” Tri-State Bldg. & Supply v. Reid, 251 Ga. 38, 39 (302 SE2d 566) (1983).

This fast track procedure serves the philosophy that case management be “speedy, efficient, and inexpensive,” in the words of the 1983 Georgia Constitution, Art. VI, Sec. IX, Par. I. If appellants had followed the correct procedure, they would have had such an initial review by this Court soon after an application by them in late December or early January. If we decided that full review was unnecessary, they would have saved not only months of time but also the cost of preparation of the record, enumerations of error, and brief. In addition, the work of the clerk of the superior court would have been avoided. Her certificate states that “[t]he delay in this record being transmitted to the Court of Appeals is due to a heavy back-log in the Appeals Section.” The case was docketed in the Court of Appeals on May 13.

Decided September 8, 1992.

R. Gray Wainwright, for appellants.

Michael J. Bowers, Attorney General, Isaac Byrd, Robert S. Bomar, Senior Assistant Attorneys General, W. Gary Moore, King & Spalding, Patricia T. Barmeyer, for appellees.

No application for appeal having been made in this case, this Court is without jurisdiction to entertain it. Risner v. Ga. Dept. of Labor, 168 Ga. App. 242 (308 SE2d 582) (1983).

Even if this Court were to treat the matter as appropriate for a direct appeal, which it cannot do despite appellants’ urging, it is still fatally defective. The decision sought to be reviewed was entered on December 26, 1991, and the notice of appeal was not filed until January 28, 1992, outside the time permitted by OCGA § 5-6-38.

Appeal dismissed.

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


text:
    A92A0819.
    KINNICK v. TEXTRON FINANCIAL CORPORATION.
    (422 SE2d 303)
   Johnson, Judge.

Falcon Transport, Inc., a Georgia corporation, leased 15 trailers from Textron Financial Corporation. John Kinnick, president and sole shareholder of Falcon, executed the lease agreement on behalf of Falcon and also executed a personal guaranty of Falcon’s obligations to Textron under the lease. Falcon defaulted on the lease agreement and filed for bankruptcy protection. Pursuant to the terms of the lease and with leave of the bankruptcy court, Textron took possession of 14 of the trailers and sold 13 of them in partial satisfaction of the balance due under the lease. Textron then filed an action against Kin-nick to recover the remaining balance and moved for summary judgment. The trial court granted the motion and entered judgment against Kinnick in the amount of $156,611.18. Kinnick appeals.

1. Kinnick asserts in his first enumeration of error that the lease agreement should be governed by Georgia law. This assertion is without merit.

Both the lease agreement and Kinnick’s personal guaranty contain choice of law provisions in which the parties agree that California law shall control. “Absent a contrary public policy, this court will normally enforce a contractual choice of law clause. [Cits.]” Carr v. Kupfer, 250 Ga. 106, 107 (1) (296 SE2d 560) (1982). Kinnick cites no public policy which contravenes enforcement of the lease or guaranty. We therefore uphold the parties’ choice of California law as controlling.

Decided September 9, 1992.

Chambers, Chambers & Chambers, John W. Chambers, Jr., for appellant.

Hishon & Burbage, Hugh M. Worsham, Jr., for appellee.

2. Kinnick’s remaining enumerations of error construe the lease agreement in accordance with Georgia law. Specifically, Kinnick asserts violations of the Georgia Motor Vehicle Sales Financing Act, the Georgia Uniform Commercial Code and Georgia case law governing liquidated damages provisions in leases of personalty. None of Kin-nick’s enumerations is supported by citation of California law. Based on our holding in Division 1 of this opinion, Georgia law is inapplicable. Textron raised the choice of law issue in the court below and, absent a contrary showing, we must presume that the trial court correctly applied California law in granting Textron’s motion for summary judgment. By relying solely on Georgia law, Kinnick has made no showing that the trial court erred in applying the applicable law. Accordingly, we find no error.

Judgment affirmed.

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


text:
    A92A0959.
    MINTON v. THE STATE.
    (422 SE2d 300)
   Johnson, Judge.

Michael R. Minton was convicted of two counts of child molestation and one count of burglary. He appeals from the conviction and the denial of his motion for a new trial.

1. Minton first challenges the sufficiency of the evidence presented at trial.

The evidence showed that Minton lived next door to the child molestation victims, five-year-old twin sisters. On the date of the incident, a neighbor saw Minton watching the two girls. Both victims testified that they were awakened in the middle of the night when a man broke into their bedroom. They identified Minton as the intruder and stated that he laid on top of each of them and fondled their genitalia. The victims’ parents were awakened by the girls’ screams. As their father ran into the bedroom he saw a man jump out of the bedroom window and noticed that both of the girls’ panties had been removed. The screen on the bedroom window was bent open. Minton’s fingerprint was found on the outside of the screen. Reviewing the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Minton guilty beyond a reasonable doubt of burglary and two counts of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Minton next asserts that he was denied effective assistance of counsel in that his attorney failed to interview him, to interview witnesses, to make an opening statement, to object to hearsay testimony, and to advise Minton of his right to testify. “ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.’ (Citations and punctuation omitted.) [Cit.]” Jacobson v. State, 201 Ga. App. 749, 752 (5) (412 SE2d 859) (1991). Minton has failed to make both showings.

(a) We find that counsel’s failure to interview Minton prior to trial was deficient. Counsel was appointed to represent Minton several months before trial and therefore had more than sufficient time to conduct an interview. Counsel has offered no explanation as to why he failed to personally interview his client. However, Minton has failed to show how his attorney’s deficient performance prejudiced the defense. An investigator working for Minton’s counsel interviewed Minton three times before trial and discussed those interviews with counsel. Minton has made no showing that his attorney would have discovered additional information by personally interviewing him. Although we find counsel’s failure to interview his client unprofessional, we are constrained to find further that Minton has not met his burden of showing that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. This is especially true in light of the overwhelming evidence of Minton’s guilt.

(b) Despite Minton’s contentions, counsel testified at the motion for new trial hearing that he did interview both witnesses identified by Minton. Counsel also testified that although he did not interview the State’s witnesses, the prosecutor informed him of the expected testimony of each of the State’s witnesses. “Counsel’s preparation was not so slight as to give rise to a claim of ineffective assistance of counsel. [Cit.]” Penaranda v. State, 203 Ga. App. 740, 744 (4) (d) (417 SE2d 683) (1992).

(c) Counsel’s decision not to make an opening statement was a matter of trial strategy. “This court has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.” (Punctuation and citation omitted.) Jacobson v. State, supra at 752 (5) (a).

Decided September 9, 1992.

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, Lew S. Barrow, Assistant District Attorney, for appellee.

(d) Counsel’s failure to object to the hearsay testimony of a police officer was harmless. The officer testified that the incident occurred at 1:40 a.m., and that Minton’s stepmother told him that Min-ton returned home at 1:48 that morning. After the officer’s testimony, Minton’s stepmother told the jury that Minton came home sometime between 12:00 and 1:00 a.m. In light of the stepmother’s testimony directly contradicting the officer’s statement, we find that counsel’s failure to object was harmless.

(e) Minton’s attorney testified at the motion for new trial hearing that, contrary to Minton’s assertion, he did advise Minton of his right to testify and that Minton stated he did not want to testify. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Punctuation and citations omitted.) Jacobson v. State, supra at 754 (5) (d). Here, the trial court’s finding was not clearly erroneous as there was evidence to support it.

3. Minton contends in his third enumeration that the trial court erred in advising him of his right to testify in the presence of the jury. Minton, however, made no objection to the judge’s remarks. “Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal. Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.” (Punctuation and citations omitted.) Williams v. State, 201 Ga. App. 383, 384 (411 SE2d 118) (1991). Even if Minton had timely objected to the judge’s remarks, this issue has previously been decided adversely to Minton. See Drake v. State, 239 Ga. 232, 236 (3) (236 SE2d 748) (1977).

Judgment affirmed.

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


text:
    A92A0983.
    HOLLOWAY v. THE STATE.
    (422 SE2d 298)
   McMurray, Presiding Judge.

Defendant Holloway appeals his conviction on two counts of operating a motor vehicle without a license plate (OCGA § 40-2-8 (b)). The sole enumeration of error raises the issue of the sufficiency of the evidence to authorize defendant’s conviction. Held:

OCGA § 40-2-8 (b) provides in part that it “shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate. ...” OCGA § 40-2-20 (a) requires “every owner of a motor vehicle, including a tractor or motorcycle, and every owner of a trailer [to] register such vehicle as provided in this chapter and obtain a license to operate it for the ensuing year. ...” (Emphasis supplied.)

On December 16, 1990, defendant was stopped by Garden City police officer Burrows and cited for certain traffic offenses. Subsequently, defendant was charged by accusation number 9102281 with three misdemeanor offenses. The accusation briefly described the alleged offenses and in another portion of the accusation referenced three uniform traffic citations. Count one charged “NO STATE TAG (TRACTOR)” while the corresponding uniform traffic citation alleged a violation of OCGA § 40-2-20 and stated under the “REMARKS” section of the citation, “NO STATE TAG ON TRACTOR.” Count three of the accusation charged “NO STATE TAG (TRAILER)” while the corresponding uniform traffic citation alleged another violation of OCGA § 40-2-20 and stated in the “REMARKS” section of the accusation of the citation, “NO STATE TAG ON TRAILER.” Defendant was acquitted of count two charging an improper driver’s license and this allegation is not at issue on appeal.

The evidence at trial shows that defendant was stopped while operating his employer’s highway-type tractor and flatbed trailer on the streets of Garden City and that neither the tractor nor trailer had a license plate. The officer testified that defendant was cited for failure to display a tag and stated on cross-examination that the citations he issued refer to OCGA § 40-2-8. Indeed, a document, which Officer Burrows was apparently using to refresh his memory may have contained a reference to OCGA § 40-2-8, and may have been a citation charging defendant with a violation of that statute. This document was discussed and passed between the officer and defense counsel during cross-examination of the officer, but was not clearly identified or introduced into evidence.

The record contains no citation or accusation charging defendant with a violation of OCGA § 40-2-8. The first and only reference to OCGA § 40-2-8 in the record (as opposed to the transcript) is in an order which amended defendant’s sentence and incidentally reveals that defendant’s conviction was for violations of OCGA § 40-2-8 rather than for the offenses charged by the accusation.

Decided September 9, 1992.

Brennan, Harris & Rominger, Edward T. Brennan, for appellant.

Spencer Lawton, Jr., District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

In reviewing the record and transcript, we have unsuccessfully attempted to discern the sequence of events which resulted in the defendant’s conviction for a different offense than that with which he was originally charged. Nor have we been able to reconcile Officer Burrow’s testimony that defendant was cited for a violation of OCGA § 40-2-8 with the documents of record in the case. While the cases of other jurisdictions reveal circumstances under which indictments or accusations have been deemed to be amended at trial by the introduction of evidence and application of law related to offenses other than that originally charged, we find no support for such a proposition under the Georgia cases.

A conviction of an offense with which the defendant has not been charged is contrary to law (Goldin v. State, 104 Ga. 549, 551 (2) (30 SE 749)) and it may be sufficient to hold the conviction of defendant void on this ground alone. Nonetheless, we also note that defendant was charged with violations of OCGA § 40-2-20 which may be committed only by the owner of the vehicle in question. As the evidence is uncontroverted that the vehicles at issue in the case sub judice were owned by defendant’s employer and not by defendant, defendant could not have committed the alleged violations of OCGA § 40-2-20.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1080.
    THE STATE v. HOLTON.
    (422 SE2d 295)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of violating the Georgia Controlled Substances Act (possession of marijuana with intent to distribute). Defendant had been arrested when marijuana was discovered in an automobile that he was driving and while in the custody of the police made incriminating statements. Defendant filed motions to suppress the evidence and statements. The trial court granted the motions and the State appeals.

The following facts were adduced at the hearing: An anonymous caller notified Sergeant Bryant of the Moultrie-Colquitt County Drug Squad that defendant, Adie Holton, and defendant’s wife, Wanda Young, would be going to Plymel’s Liquor Store in a small brown automobile after defendant got off from work; that defendant would park the automobile on the north side of the store; that other persons would go into the store to cash their paychecks and buy beer or liquor; and that, upon exiting the store, they would approach the automobile and buy marijuana. Sergeant Bryant went to the liquor store and waited for the arrival of the brown automobile. Office Casteloes was instructed to join the stakeout in another vehicle. Sergeant Bryant told Officer Casteloes that they would stop and search the automobile if defendant showed up in it.

Defendant proceeded into the parking lot of the liquor store in the described automobile. Defendant was behind the wheel and his wife was in the passenger seat of the automobile. Sergeant Bryant watched the automobile for about ten minutes. During that period of time, two or three men approached the automobile, knelt down beside it, and talked to defendant and his wife. The officers could not determine whether any kind of illegal activity was taking place. Nevertheless, Sergeant Bryant instructed Officer Casteloes to move in and search the automobile.

Officer Casteloes proceeded into the parking lot behind the automobile. He testified that he asked defendant to step to the rear of the automobile; that defendant complied with his request; that he asked defendant if he would consent to a search of the automobile; and that defendant gave his consent. He also testified that he asked Ms. Young to exit the automobile; that she did so; and that he searched the automobile and discovered a quantity of marijuana in the glove box. The officer added that the search was based upon defendant’s consent.

Wanda Young testified that defendant went into the liquor store while she sat in the passenger seat of the automobile; that she was told to exit the automobile because the police were going to search it; and that she owned the automobile and did not give the police permission to search it. She also testified that an officer approached defendant when he returned to the automobile; and that no one asked defendant for his permission to search the automobile. Significantly, however, she added that she only heard parts of the conversation between the officer and the defendant and that she did not hear “enough to tell you what they said.”

Defendant took the stand to testify on his own behalf. Before he got to the crux of the matter, the trial court interrupted him to “confer with counsel in chambers.” After a conference with counsel, which was not reported, the trial court granted defendant’s motions. This appeal followed. Held:

1. “The Supreme Court of the United States has held that when a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U. S. 1, 16 (88 SC 1868, 20 LE2d 889) (1968). To justify a warrantless intrusion of this nature, the state must be able to point to specific and articulable facts, which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Terry v. Ohio, supra; [cits.].

“What is demanded of the police officer, as the agent of the state, is a' founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . . ‘Where no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen.’ Brooks v. State, 129 Ga. App. 109, 111 (198 SE2d 892) (1973).

“What is implicit in the above is that each case must turn on its own independent circumstances bearing on the issue of reasonableness of the seizure.” Brisbane v. State, 233 Ga. 339, 341-342 (211 SE2d 294) (1974). Did the facts and circumstances known to the police give rise to an articulable suspicion that defendant was engaged in illegal activity? We think that they did.

In Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990), an anonymous telephone caller informed the police that, carrying a brown attache case containing cocaine, Vanessa White was going to be leaving a certain apartment at a particular time, entering a brown Plymouth station wagon with a broken right taillight lens, and driving to Dobey’s Motel. The police saw White leave the apartment building, enter the described vehicle and drive in the direction of Dobey’s Motel and they stopped her shortly before she got there. White consented to a search and the police discovered cocaine in her purse and marijuana in a brown attache case in the vehicle. The Supreme Court upheld the investigatory stop of White because the anonymous tip was sufficiently detailed and it was corroborated by the observations of the police. In so ruling, the Court made it clear that an anonymous tipster must predict the subject’s future behavior in order to provide articulable suspicion for an investigative stop: “What was important was the [anonymous telephone caller’s] ability to predict [White’s] future behavior, because it demonstrated inside information. . . . The general public would have had no way of knowing that [White] would shortly leave the building, get in the described car, and drive the most direct route to [the stated destination].” Id. at 332.

In the case sub judice, the anonymous tipster predicted defendant’s future behavior in detail. The tipster identified defendant and his wife by name and informed the police that after defendant got off work, he would drive a brown automobile to a liquor store and park on the north side of the store; that he would be accompanied by his wife; and that persons would enter the liquor store and, upon exiting the store, approach defendant’s automobile to purchase marijuana. The police were unable to see whether any marijuana passed hands but they were able to corroborate every other detail of the tip. We have no hesitation in concluding that the tip and the totality of the attendant circumstances provided articulable suspicion to warrant an investigative stop. Alabama v. White, supra. Cf. Swanson v. State, 201 Ga. App. 896 (412 SE2d 630); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826).

Having concluded that the investigatory stop of defendant was justified, we must examine whether the search of the automobile violated defendant’s Fourth Amendment rights. Before we do so, however, we pause to consider Rucker v. State, 199 Ga. App. 854 (406 SE2d 277), cited by defendant.

Defendant’s reliance upon Rucker is misplaced because the issue in that case was not whether the police had enough information to raise an articulable suspicion for an investigatory stop but whether they had probable cause to conduct a warrantless search. In Rucker, a confidential informant advised the police that defendant was due to make a delivery of cocaine at a certain apartment complex. He was described as a black male and a tag number and description of his car were given. When that defendant drove up to the apartment complex, a police officer asked him to step out of his car and, without further ado, he searched it. The trial court denied that defendant’s motion to suppress and this Court reversed, holding that there was insufficient corroboration of the details of the tip to establish probable cause for a warrantless search. In passing, the Rucker court observed that “[t]he tip provided the officer with sufficient articulable facts to make an investigatory stop of the defendant.” Id. at 856.

2. The police based their search of the automobile upon defendant’s voluntary consent. Defendant points out that whether or not he gave his consent to search the automobile was a factual question and that we must uphold the trial court’s decision on a question of fact arising in the context of a motion to suppress. In this regard, defendant argues that the testimony of Wanda Young was in conflict with that of the officer and that the trial court chose to believe Wanda Young’s testimony.

‘(W)here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is evidence to authorize a finding in support of his order.’ (Emphasis supplied.) State v. Swift, 232 Ga. 535 (2) (207 SE2d 459); Woodruff v. State, 233 Ga. 840 (3) (213 SE2d 689); Parks v. State, 150 Ga. App. 446, 448 (2) (258 SE2d 66). The Georgia Supreme Court cites Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618), as the fountainhead for the doctrine of the standard to apply by an appellate court in reviewing a decision of a trial court on suppression of evidence. Lego, supra, was based on ‘a pretrial suppression hearing at which conflicting evidence was presented as to the voluntariness of a confession . . .’ (Emphasis supplied.) However, in the instant case there was no conflict in the evidence presented.” State v. Medders, 153 Ga. App. 680, 681, 682 (266 SE2d 331).

Decided September 9, 1992.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellant.

May & Horkan, Dwight H. May, for appellee.

Officer Casteloes testified that defendant consented to a search and his testimony was not contradicted. True, Wanda Young stated that no officer asked defendant’s permission to search the automobile. Placed in context, however, it is clear that Ms. Young only heard parts of the conversation between defendant and Officer Casteloes. She acknowledged that she did not hear enough of the conversation to be able to state what was said. Thus, it cannot be said that the testimony of Ms. Young contradicted the testimony of Officer Casteloes.

In view of the clear and unimpeached testimony of Officer Casteloes, defendant’s consent to a search of the automobile was established and the granting of defendant’s motions to suppress was clearly erroneous. State v. Medders, 153 Ga. App. 680, supra. We note, however, that the trial court granted defendant’s motions to suppress before defendant had a chance to give any testimony with respect to the consent issue. Accordingly, we vacate the judgment of the trial court and remand this case for a continuation and completion of the hearing. At the conclusion of the hearing, the trial court will enter another order upon defendant’s motions to suppress.

Judgment vacated and case remanded for proceedings not inconsistent with this opinion.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1247.
    THE STATE v. SPARKS.
    (422 SE2d 293)
   McMurray, Presiding Judge.

Defendant Sparks is charged by indictment with possession of methamphetamine in violation of the Georgia Controlled Substances Act. The State appeals following the grant of defendant’s motion to suppress evidence found during an inventory search of defendant’s pickup truck. Held:

The evidence on the hearing of defendant’s motion to suppress evidence shows that: A deputy sheriff on patrol observed defendant Sparks and a companion dumping manure from the back of a pickup truck onto private property. The deputy approached them, asked for identification which they produced, and asked them what they were doing. Defendant stated that he had loaded the manure into the truck but had loaded too much and was getting some of the manure out of the truck so that it would drive properly. Based on this information the deputy placed defendant under arrest for littering in violation of a county ordinance. After placing defendant under arrest, the deputy asked him if he had insurance on the vehicle. Defendant, who stated that he was the owner of the pickup truck, could not produce an insurance card for the vehicle. The deputy called for a tow truck to impound the vehicle. In the course of conducting an impound inventory of the vehicle, the deputy opened the glove box of the vehicle and found a plastic container with a clear top which contained a rolled up dollar bill and a zip-lock container with a white powdered substance which the officer suspected was contraband.

After hearing this evidence, the superior court concluded that the deputy had probable cause to cite defendant for littering in violation of the county ordinance, but that the officer had no right to place defendant under arrest since the county ordinance in question does not allow for such arrest. See OCGA § 15-10-63. The court also found that there was no probable cause to search defendant’s vehicle having concluded that the arrest and search were illegal, the superior court ordered the evidence, seized as a result of the search, suppressed.

The State argues that the arrest was legal since the deputy had probable cause to arrest defendant for violating OCGA §§ 12-8-24 and 16-7-43. In this connection, we note that the conduct prohibited by the county ordinance, under which defendant was arrested, and by OCGA § 16-7-43 are virtually the same. Therefore, since the deputy had probable cause to cite defendant for violation of the county ordinance, he also had probable cause to arrest defendant for a violation of OCGA § 16-7-43.

The deputy’s probable cause to arrest defendant for a violation of OCGA § 16-7-43 was not affected by the deputy’s characterization of the crime for which the arrest was made. “A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. Durden v. State, 250 Ga. 325, 326 (297 SE2d 237) (1982); Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964).” Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118). This is an objective standard rather than a subjective standard and addresses the facts known to the officer at the time of the arrest rather than to the characterization or basis for behavior stated by the officer. While the courts must apply this standard with a view to guarding against pretextual arrests, “when a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest. [Cits.]” Mills v. Wainwright, 415 F2d 787, 790 (1). “Any other rule would force police officers to routinely charge every citizen taken into custody with every offense they thought he could be held for in order to increase the chances that at least one charge would survive the test for probable cause. Such a clogging of the criminal process already heavily encumbered, would be pointless.” United States v. Atkinson, 450 F2d 835, 838 (4).

Decided September 9, 1992.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellant.

J. Richard Neville, for appellee.

Since the offense for which plaintiff was arrested and the offense for which probable cause to arrest existed were related, the arrest of defendant was authorized. The subsequent chain of events leading to discovery of the contraband was lawfully conducted and the contraband found during the impoundment inventory is not the fruit of a poisonous tree. The superior court erred in granting defendant’s motion to suppress.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1396.
    DUNN v. PAYNE.
    (422 SE2d 291)
   McMurray, Presiding Judge.

This is a trespass and nuisance action filed by William W. Dunn, as nominee of a partnership, Richard Carson, and Darlene Carson. The plaintiffs’ property is downhill from the property of defendant Lecil J. Payne, whose property is in turn downhill from that owned by Hilltop Village Associates. The complaint alleges that the Hilltop Village Associates parcel was modified in 1979 by the construction of a shopping center, causing an increase in the runoff of surface water which when combined with the runoff from the Payne parcel causes damages to plaintiffs’ land. Plaintiffs seek damages from Payne for the failure to modify his land so as to prevent such harm. Plaintiff Dunn also alleges that he is entitled to enforce the provisions of an injunction entered in a previous trespass action against Payne by Eugene Green, Dunn’s predecessor in title. Although not named as a party in plaintiffs’ complaint, Hilltop Village Associates was named as a third party defendant by Payne.

Upon the trial of the case, the jury returned a verdict on Dunn’s claim for damages in favor of Payne. On plaintiffs Richard Carson’s and Darlene Carson’s claim the jury awarded $10,000 compensatory and $30,000 punitive damages, while Payne prevailed on the third party claim and obtained a judgment for $10,000 against Hilltop Village Associates. Plaintiff Dunn appeals the judgment of the trial court. Held:

1. Plaintiff Dunn enumerates as error the denial of his motion for directed verdict. The argument in support of this enumeration of error is directed solely to plaintiff Dunn’s assertion that the issue of defendant Payne’s liability is conclusively established by the decision in previous litigation between Payne and Green, plaintiff Dunn’s predecessor in title. Plaintiff Dunn contends that because Payne was found liable to Green in the previous litigation for damage caused by excess water runoff and was ordered to correct the problem, defendant Payne is bound by this previous determination of liability under the principles of res judicata or collateral estoppel. While plaintiff Dunn argues that defendant Payne should be precluded from relitigating the identical issue, the transcript shows that the present cause of action cannot be deemed to be the same which was previously before the trial court. The present action addresses a different period of time than was at issue in the previous case, plaintiff Dunn being able to seek damages only for that period subsequent to the purchase of the property by himself and his partners. The previous judgment binds only as to the facts in issue and events existing as of the time of that judgment. See Dept. of Transp. v. City of Atlanta, 255 Ga. 124, 126 (1) (337 SE2d 327), and Durham v. Crawford, 196 Ga. 381, 386 (4) (26 SE2d 778).

A surface water invasion by itself does not show that a tort has taken place. “When a surface-water invasion has taken place, whether it amounts to a compensable tort is a question of fact for the jury. Nature, gravity, velocity, and relativity, as well as acts of the alleged tortfeasor, are matters that must be considered in determining whether a surface-water invasion constitutes a trespass for which damages are recoverable.” Brand v. Montega Corp., 233 Ga. 32, 34 (2) (209 SE2d 581). See also C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457, 458 (1) (249 SE2d 281). Defendant Payne was entitled to have the jury consider his evidence concerning his compliance with the injunction entered in the previous litigation and his efforts to abate the flow of water from the shopping center since the judgment in the earlier litigation. Payne testified as to repeatedly spreading straw, grass seed, and planting pine trees on the property in attempts to alleviate the problem. The trial court did not err in denying plaintiff Dunn’s motion for directed verdict.

Decided September 9, 1992.

Thomas S. Sunderland, for appellant.

2. “ ‘ “It is well-settled that ‘the giving of a charge . . . or . . . the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant.’ ” (Cits.)’ [Malloy v. Elmore, 191 Ga. App. 564, 565 (382 SE2d 395)]. See also Reliford v. Central of Ga. R. Co., 140 Ga. App. 782, 783 (4) (232 SE2d 129) (1976).” U. S. Indus. v. Austin, 197 Ga. App. 74 (2), 75 (397 SE2d 469). As applied to the case sub judice, this principle requires that we hold that plaintiff Dunn’s second and fourth enumerations of error lack merit.

3. The third enumeration of error contends that the trial court erred in preventing plaintiff Dunn from impeaching the testimony of defendant Payne on cross-examination by questioning him with respect to previous similar lawsuits in which he had been a defendant. When plaintiff Dunn’s counsel attempted to inquire as to a separate matter which had occurred several years previous to the events in issue in this case, defendant Payne’s counsel objected to the relevance of the inquiry. While plaintiff Dunn now contends that the attempt to inquire into “the Lamar Whitting matter which occurred in 1982,” was relevant for the purposes of impeaching defendant Payne by disproving the facts testified by him, this is not established by the transcript of the trial since nothing which transpired at trial could be deemed to establish the relevance of the testimony plaintiff Dunn’s counsel sought to elicit. Plaintiff Dunn having failed to show error from the record, this enumeration of error is without merit. Hirsh v. Dobb, 224 Ga. 130, 132 (2a) (160 SE2d 386); Hendricks v. Emerson, 199 Ga. App. 208, 209 (2) (404 SE2d 279). See also Williams v. Ricks, 152 Ga. App. 555, 558 (2) (263 SE2d 457).

4. Plaintiff Dunn’s fifth enumeration of error complains of the form of the verdict. However, no objection preserving the issue now argued by plaintiff Dunn was made at trial. The issue not having been preserved by proper objection at trial is deemed waived and nothing is presented for consideration on appeal. Ray v. Stinson, 254 Ga. 375 (329 SE2d 502).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Pruitt & Britt, Glyndon C. Pruitt, H. Patterson Garner, for appellee.


text:
    A92A1427.
    MOHORN v. ROSS.
    (422 SE2d 290)
   McMurray, Presiding Judge.

Polly Mohorn, next friend and natural guardian of Terrika Receal Mohorn, filed an action against Carey Lesell Ross, alleging Terrika was injured as a result of the negligent operation of a vehicle by Ross. Ross filed a motion for summary judgment, contending Terrika’s claim is barred under the doctrine of parental immunity.

Terrika is the daughter of Polly Mohorn and Carey Lesell Ross. On December 16, 1988, Ross wrecked a vehicle in which Terrika was a passenger. During February of 1990, Polly Mohorn and Ross were married and Polly and Terrika moved in with Ross. On November 28, 1990, Polly Mohorn sued Ross for Terrika’s alleged injuries. In February of 1991, the couple separated without a divorce and Itoss moved out of the home. Ross periodically visits his daughter and provides support, paying the mortgage and assisting with transportation.

The trial court granted defendant’s motion for summary judgment. This appeal followed. Held:

The doctrine of parental immunity is implemented to protect domestic tranquility, avoid fraud and collusion, preserve family resources, protect the family unit and preserve parental discipline. Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648). These objectives become relevant after an action is filed, not at the time a cause of action accrues. See Morris v. Brooks, 186 Ga. App. 177, 178 (366 SE2d 777).

Polly Mohorn and Ross were married and their family resided in the same household when the case sub judice was initiated. The family separated less than three months later, Ross moving out of the home. Ross now periodically visits his daughter and provides financial support, paying the mortgage and assisting with transportation. These circumstances justify the trial court’s finding that Ross is immune from liability for injuries allegedly sustained by his daughter in the collision.

Although the family is separated, the child’s parents are not divorced and there is no evidence of domestic unrest. On the contrary, the undisputed evidence shows that Ross visits his daughter and supports his family. Consequently, the underlying objectives of preserving domestic tranquility, family resources and parental discipline remain. Further, there remains the possibility of salvaging the family unit. It follows that the trial court did not err in granting summary judgment in favor of Ross based on the doctrine of parental immunity. Compare Segars v. Southern Guar. Ins. Co. of Ga., 192 Ga. App. 265 (1) (384 SE2d 426).

Decided September 9, 1992.

Kendall, Dixon & Turk, Alvin L. Kendall, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1791.
    TURNER v. BUHROW.
    (422 SE2d 678)
    Decided September 9, 1992.

      Sherry J. Locklin, for appellant.

      Blasingame, Burch, Garrard & Bryant, Gary G. Blasingame, James B. Matthews III, J. Ralph Beaird, Milton F. Eisenberg II, Webb, Carlock, Copeland, Semler & Stair, Patricia M. Anagnostakis, for appellee.
   McMurray, Presiding Judge.

Plaintiff Turner filed this medical malpractice action against physician Buhrow and against the Greene County Hospital Authority. On July 20, 1991, an order dismissing the action against defendant Buhrow was entered. A subsequent order denied plaintiff’s motion for reconsideration of that dismissal. On August 15, 1991, plaintiff filed her notice of appeal from the July 20, 1991 order dismissing her action against defendant Buhrow. Held:

The action against defendant Greene County Hospital Authority remains pending in the trial court. “The order sought to be appealed is not final within the meaning of OCGA § 5-6-34 (a) because the case remains pending below. Because the procedures set forth in OCGA § 5-6-34 (b) have not been followed, the appeal must accordingly be dismissed.” Coley Fertilizer Co. v. Gold Kist, Inc., 174 Ga. App. 471 (330 SE2d 597). Nor has the trial court directed the entry of final judgment as to defendant Buhrow upon an express determination that there is no just reason for delay pursuant to OCGA § 9-11-54 (b). Johnson v. Hosp. Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731). The appeal is premature and must be dismissed.

Appeal dismissed.

Sognier, C. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0812.
    WILLIAMS v. THE STATE.
    (422 SE2d 309)
   Birdsong, Presiding Judge.

Eddie Lawrence Williams was indicted and tried for two counts of burglary; he was convicted of Count 1 but found not guilty of Count 2. He appeals his judgment of conviction and sentence. Held:

1. The indictment for Count 1 burglary pertinently avers that appellant, on March 16, 1991, did “then and there unlawfully and without authority and with intent to commit a theft therein entered the building known and used as Lillie Cooper School, 1051 Augusta St., Dawson, of Terrell County, Georgia, the owner thereof.” The indictment does not aver that any specified property was stolen, and if it had, it would be surplusage. Davis v. State, 139 Ga. App. 105 (3) (227 SE2d 900). In any event, the State is not required to establish actual theft of any particular property to support the burglary conviction. The theft of any article is unnecessary to the completed offense of burglary. Davis, supra.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the burglary offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant claims the trial court erred in refusing to allow the jury to rehear certain evidence. In support of this contention, appellant cites this court to Byrd v. State, 237 Ga. 781, 783 (229 SE2d 631). This case is factually distinguishable from the case at bar. We find for reasons hereinafter discussed that appellant has failed to establish affirmatively by the record that the trial court abused its discretion in refusing to allow the jury to rehear certain evidence as enumerated.

The record reflects that after commencing deliberation the jury informed the trial judge they had “a question about the initial call . . . that was made by . . . David King.” No request to review any particular testimony was made in regard to this particular question. The trial court in essence responded by informing the jury that as to questions of fact they needed to resolve the matter among themselves. The trial court then addressed the prosecutor and defense counsel by name. Appellant’s counsel, in apparent anticipation that the trial court would inquire whether there was any objection to the explanation given, interrupted the trial court and said, “No, sir, we don’t. . . the facts speak for themselves as in the record for the jury.” Thus, appellant acquiesced in the trial court’s response to the jury regarding the call of David King. See Harmon v. State, 259 Ga. 444 (3) (383 SE2d 874); Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274). Further, the conduct of appellant’s counsel in interrupting the trial court and injecting his comment that the facts of record speak for themselves to the jury, aided in causing the failure, if any, of the trial court in further pursuing this issue. One cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing. See Wilburn v. State, 199 Ga. App. 667 (2) (405 SE2d 889); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). Further, the trial judge did not refuse to replay any particular testimony for the jury regarding the call; rather, he merely refused to select what testimony should be replayed. Compare Magouirk v. State, 158 Ga. App. 517, 519 (3) (281 SE2d 283).

The jury also requested to hear the tape of appellant Williams’ testimony again. The trial court noted that there exists some question whether rehearing the testimony would place too much emphasis thereon to the jury. Thereafter, the trial court denied the request for an immediate rehearing of the testimony, stating: “Now if you can . . . you all go in and continue . . . your deliberations and then we will . . . pursue that point out here. . . .” Appellant entered no objection on the record to the procedure used by the trial court in disposing of this matter.

“ ‘Reopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.’ ” Smith v. State, 153 Ga. App. 862, 864 (4) (267 SE2d 289); see also Pickelsimer v. Traditional Builders, 183 Ga. App. 709, 711 (4) (359 SE2d 719). Likewise, the trial court has discretion whether to replay testimony for the jury. Of course, jury requests should not be arbitrarily or capriciously denied. Appellant argues that “it is clear from the evidence of misidentification of the stolen items that this testimony being heard the second time would be vital in the decision making process of the jury, therefore the [trial court] erred in not allowing this testimony to be replayed.” However, as found in Division 1, a finding by the jury of theft is not necessary to support a burglary conviction. Pretermitting any issue of implied waiver (compare Magouirk, supra), appellant has failed affirmatively to show by the record that the trial court abused its discretion in refusing to allow the immediate replay of the evidence following the jury’s request.

3. Appellant, citing United States v. Amaya, 509 F2d 8 (5th Cir.) and Burroughs v. United States, 365 F2d 431 (10th Cir.), asserts that the trial court erred by giving a “time fuse” charge to the jury.

At approximately 5:36 p.m., the trial court, without objection thereto by appellant, sua sponte supplied the following procedural instruction to the jury after being informed that the jury was making a little progress but was not very close to a verdict: “Well, what I’m going to do is I’m going to let you deliberate until 6:00 and at 6:00 o’clock if you have not reached a verdict I’m going to bring you back out and let you go home and we’ll come back ... in the morning. I don’t see any sense in staying here late tonight. But with that instruction you all can return to the jury room and deliberate until you have reached a verdict or until 6:00 o’clock, whichever may occur.” At 5:50 p.m., the jury returned a unanimous verdict of guilty of Count 1, burglary, and not guilty of Count 2, burglary.

The case of Amaya, supra, and Burroughs, supra are factually distinguishable from this case and are not controlling. In Burroughs, supra at 434, the trial judge coupled a form of dynamite charge with a charge which in effect entreated the jury to strive toward a verdict by a certain time. The court concluded that the charges viewed in totality “are subject to the clear inference that the judge was unduly anxious to conclude the lawsuit.” In Amaya, supra at 10-11, the trial court gave a dynamite-type charge and then gave the accompanying time constraint comment which inter alia informed the jury that one other jury had been allowed to deliberate for nine days before they finally reached a verdict. The court concluded that “it is reasonable to infer that the jury in the instant case may have taken from the judge’s remark that he was anxious to conclude the lawsuit.” No similar charges were given in this case. We are satisfied that the charge of the trial court, as given, created no fair risk that the jury would feel pressured to reach a verdict by 6:00 p.m., or that the charge conveyed to the jury any anxiety on the part of the trial court to conclude the lawsuit. Rather, the charge here given, when viewed in its totality and in relationship to the circumstances confronting the trial court, can reasonably be inferred only to have given the jury administrative guidance as to how long they would be allowed to continue deliberation that evening. Nothing in the charge constituted a form of “verdict urging,” and the charge contained no express or implied threats to the jury either that they might be held captive for days until a verdict was reached or that a mistrial might be forthcoming if a verdict was not promptly announced. The trial court exercises wide discretion in controlling and regulating the business of the court, and appellate courts should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from the abuse. Gwinnett County v. Vaccaro, 259 Ga. 61 (3) (376 SE2d 680). This includes the power to determine the length of time that the jury will be allowed to deliberate on a given day. “Keeping a jury confined for a reasonable time, sending a jury back for more deliberations, and advising them on the desirability of reaching a verdict with well guarded language will not amount to reversible abuse and coercion. In Georgia a trial judge is given considerable latitude as to such matters.” (Emphasis supplied.) Morse v. Holland, 233 Ga. 233, 234 (2) (210 SE2d 734). Not only did the judge give the instruction in this case without a dynamite charge, he set the time limit, using well guarded language, only after being informed by the jury that it was making progress but was not very close to a verdict. Under these circumstances, including the time of day when these events occurred, the court clearly could conclude that the jury was in need of information as to how long they would be allowed to deliberate, and that it was necessary to inform them that there was no need to deliberate late into the night. Such an instruction reflects anything but an anxiety to reach a verdict rapidly. “The need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Peebles v. State, 260 Ga. 165, 167 (5a) (391 SE2d 639). We find that the trial court did not abuse its discretion under the circumstances of this case, and further that no fair risk exists that appellant was deprived of a fair trial by the instruction given.

Decided September 10, 1992.

Ralph L. Phillips, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0944.
    SHANSAB v. HOMART DEVELOPMENT COMPANY, INC.
    (422 SE2d 305)
   Birdsong, Presiding Judge.

This is an appeal from a grant of summary judgment in behalf of appellee/defendant, Homart Development Company, in a slip and fall case.

On an icy and rainy morning, the engineering staff of appellee discovered that the upper parking deck of their office building was covered with a hazardous sheet of ice. They put up cones to block entrance to the upper parking level, but someone moved the cones and appellant, an employee of a tenant company in the building, drove her car to the top to park to go to work. Appellant exited her car, took a few steps while holding onto her car for support, and fell. Held:

1. A movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party is discharged by establishing by “evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id.

2. The record reveals certain factual contradictions between appellant’s sworn affidavit and deposition testimony which have not been reasonably explained.

Appellant testified in her deposition that, although it was a horrible day because of the weather conditions, she had to go to her office. Upon driving upon the ramp to the parking deck, she did see cones bunched together; this caused her to hesitate for a second, because there were no cones there any other time; she saw other cars parked on the upper level and the center part of the driveway was open; she concluded that the reason for the cones must have been cleared; she drove to the side of the parking level closest to her office, and “came down the middle.” She decided to park in the middle because she wanted to take that entrance. “So I parked there and I got out of my car. And . . . when I closed the door . . . then I noticed there was a thick layer of ice, and that’s . . . when I noticed that this was dangerous. So I held onto my car and I said well, it’s maybe a few steps, and when I took that first step somehow I fell down.” (Emphasis supplied.) Although appellant stated she had never seen ice like this before, she also testified that this was not the first time she had ever walked on ice, and she also had “jogged” on salted or sanded ice. Appellant further clarified in her testimony that she first saw the ice on the parking deck “when I looked down” after getting out of her car; the ice was shiny. She believes she took one or two steps when she fell and was holding onto her car for support at the time. Appellant denied that she had testified that “I saw the ice before I took the first step,” and stated she noticed the ice as she was taking or trying to take the first step. She also testified the first time she saw ice on the upper parking deck was when she “was on top of it standing.”

Thereafter, appellant was questioned over certain portions of her prior affidavit. She testified that whatever she put down in the affidavit was the truth of what happened the day of the incident, and she would not lie. Her affidavit reveals the following pertinent assertions of fact: The weather was icy and rainy; as she reached the top of the driveway leading to the parking deck, she could see about 20 cars parked in that area; there were about three cones bunched together on both the left and right of the driveway, so cars could easily pass through them; seeing the cones she hesitated but assuming no problem existed she drove onto the deck and parked her car; “as I opened my car door and looked down, I realized that there was a sheet of ice. With no alternative, I attempted to get out of my car. I was edging my way along the side of the car when suddenly my legs slipped out from under me. Immediately, someone else who had parked . . . was present to help me.” (Emphasis supplied.) We find that appellant’s sworn statement in her affidavit that she saw a sheet of ice when she opened her car door and looked down and attempted to get out of her car is in contradiction of her deposition testimony that she noticed the ice after getting out of her car and closing the door. Being contradictory testimony, which contains no reasonable explanation of the particular inconsistencies involved, the inconsistencies will be construed against appellant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Accordingly, we construe this portion of her testimony as establishing that she saw a sheet of ice when she opened her car door and before she attempted to get out of the car.

3. Assuming appellant was a business invitee and not a mere licensee, the proprietor owed a duty towards her to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. A proprietor is not an insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. Lau’s, supra at 492 (1).

“In order for a plaintiff in a slip and fall case such as this to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. Stated another way, liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risk and dangers incident to the known condition. Thus, in cases such as the instant one, where an invitee has slipped and fallen on a foreign substance such as ice, knowledge is the decisive issue and the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Citations and punctuation omitted.) Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2) (288 SE2d 846). The superior/equal knowledge rule then “ ‘is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s negligence.’ ” O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (1) (390 SE2d 248). Therefore, the legal issue in the instant case is whether the evidence, when construed most favorably for appellant, demonstrates as a matter of law that appellant did not have knowledge superior or equal to that of appellee of the icy condition or hazard which resulted in the slip and fall. Telligman, supra. After applying the rule of Prophecy, supra, we find the record demonstrates as a matter of law, by plain, palpable, and indisputable evidence, that appellant had equal knowledge of the icy condition or hazard but nevertheless thereafter attempted to cross the icy parking deck on foot.

4. Appellant, however, contends that she could not avoid the consequences of appellee’s alleged negligence, as she had no reasonable alternative but to attempt to cross the icy deck to get to her office. In support of her contention, appellant relies upon Hull v. Massachusetts Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337). These cases are factually distinguishable and are not controlling. Both Hull and Phelps concern situations where tenants were confronted by ice and snow covering their only route of ingress or egress from their apartments. Additionally, in Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 159-160 (335 SE2d 408), this court distinguished Hull and Phelps noting that in those cases plaintiff had no alternative but to traverse the ice if she did not want to be a virtual prisoner in her own apartment. The Grier court held this constituted an important distinction from those cases where plaintiff is “merely a store customer.” Likewise, we decline to extend the precedent of Hull and Phelps to plaintiffs on their way to work who are merely employees of a tenant whose office is located in the proprietor’s building.

Additionally, appellant made admissions in judicio in her deposition (Pate v. Ga. Southern &c. R. Co., 196 Ga. App. 211, 212 (395 SE2d 604); see Long v. City of Midway, 169 Ga. App. 72, 74 (311 SE2d 508)) that: she drove to the side of the upper parking level closest to her office, and “came down the middle” of the upper parking level; she did not experience any trouble driving on or stopping on the deck; and the ramp was wet but not icy and it was fine.

Also any contradictory testimony or statements by appellant, as to these matters, and for which no reasonable explanation for inconsistencies was given, would have to be construed against her pursuant to the rule of Prophecy.

5. Where the facts conclusively show by plain, palpable and undisputed evidence that defendant was not at fault, such case properly may be resolved as a matter of law through the vehicle of summary judgment. Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670).

Appellant’s enumerations of error are without merit. Compare Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239).

Decided September 10, 1992.

Rubin, Winter & Rapoport, Joseph M. Winter, Michelle B. Rapoport, for appellant.

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1172.
    JACKSON v. THE STATE.
    (422 SE2d 304)
   Birdsong, Presiding Judge.

Timothy Jackson was convicted in Fulton County for sale of cocaine and for simple battery. On appeal he contends the trial court erred by commenting on the evidence and gave an overbroad definition of simple battery in the charge. Held:

1. The trial court gave this charge: “Cocaine is a controlled substance under Georgia law. Only physicians, dentists, veterinarians or pharmacists are authorized to prescribe and dispense controlled substances; however, an individual such as the defendant is not authorized to sell or disperse any controlled substance.” Appellant contends this charge expresses an opinion that appellant sold cocaine. But the instruction merely advises the jury that appellant is not authorized to sell or disperse controlled substances. This accurate statement of an uncontested and undisputed fact does not reflect an opinion that appellant sold cocaine. See Dixon v. State, 196 Ga. App. 15, 18 (7) (395 SE2d 577).

2. Appellant was charged in the indictment with the offense of simple battery by unlawfully and intentionally causing physical harm. The jury was charged that a person commits simple battery when he “either, A, intentionally makes physical contact of an insulting or provoking nature upon the person of another, or, B, intentionally causes physical harm to another.” See OCGA § 16-5-23. In Lyman v. State, 188 Ga. App. 790, 792 (374 SE2d 563), we held: “ ‘(I)t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.’ Owens v. State, 173 Ga. App. 309 (4) (326 SE2d 509).” But, we declined to reverse the conviction in Zager v. State, 172 Ga. App. 207 (322 SE2d 530) saying: “ ‘ “It is not usually cause for new trial that an entire Code section is given (in the jury charge) . . . even though a part of the charge may be inapplicable under the facts in evidence.” [Cits.]’ ” The basis of this holding was that, as in Weaver v. State, 169 Ga. App. 890 (6) (315 SE2d 467), the trial judge read to the jury the charge in the indictment, sent the indictment out with the jury and told them to refer to it as often as necessary. In Anderson v. State, 262 Ga. 26 (413 SE2d 732), the Supreme Court noted an apparent duality in such rulings and pointedly did not hold that it was reversible error, as a matter of law, to charge the entire Code section; the court observed that the record showed the jury was confused by the charge, but no remedial instruction was given nor did the accusation clarify the charge. The jury in the case now before us was fully charged as to the State’s burden of proof, and that “this indictment, together with the defendant’s plea of not guilty, forms the issues which you jurors are to determine.” The jury could not reasonably have been misled to conclude that appellant could be convicted of an offense other than what was set out in the indictment.

Decided September 10, 1992.

Megan C. Devorsey, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, A. Thomas Jones, Assistant District Attorneys, for appellee.

Moreover, while appellant properly reserved the right to raise exceptions to the charge on appeal, the jury was then re-charged solely as to simple battery, and the trial judge asked if appellant had any objections. Counsel responded that he had no objections to the recharge. “Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.” Rivers v. State, 250 Ga. 303, 309 (298 SE2d 1). Having on re-charge advised the court that he had no objection to this specific and particular charge, he may not now complain of it. Moreover, this failure to object to this particular recharge amounted to a refusal of remedial instructions as suggested in Anderson, supra, and Lyman, supra.

3. We have reviewed the evidence and we find it sufficient to enable a reasonable trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0874.
    WILLIAMSON v. ECHOLS.
    (422 SE2d 329)
   Beasley, Judge.

Williamson appeals a judgment entered on a jury verdict in favor of Echols, executor of the estate of James E. Glover.

While in declining health approximately five months prior to his death at age 80, Mr. Glover opened two accounts at Trust Company Bank. He named his sister, Cornelia Callaway, and her daughter (his niece) appellant Williamson, as joint tenants with rights of survivor-ship. Both before and after Mr. Glover’s death, appellant withdrew the sums in both accounts, totaling withdrawals of approximately $65,500. She gave a portion of those funds to Callaway, the other account holder and retained the rest. Callaway returned the funds she received to the Glover estate, but Williamson refused demands to do so.

Appellee Echols, as executor of Mr. Glover’s estate, brought suit against appellant and Trust Company Bank, seeking an accounting and recovery on behalf of the estate of the funds previously on deposit in the two accounts. Summary judgment was awarded to the bank, Echols v. Trust Co. Bank, 198 Ga. App. 340 (401 SE2d 565) (1991), and the case proceeded to trial against appellant.

1. Appellant contends that the trial court erred in failing to direct a verdict in her favor with respect to her entitlement to the funds on deposit in the two accounts.

“The controversy between plaintiff and defendant Williamson, ... is governed by OCGA § 7-1-813 [a] which provides in part that: ‘Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. . . .’” Echols, supra at 340. Appellant contends that the evidence was insufficient to rebut the statutory presumption that as surviving party she was entitled to the funds.

The funds used to establish the accounts were provided by Mr. Glover. During his declining health, appellant assisted him in managing business matters and paying his bills. His expressed intent in establishing the joint accounts was for her convenience in rendering that assistance. Appellant admitted that her name was placed on the accounts “to assist in writing checks, paying bills, and paying expenses and handling his affairs.”

Trust Company Bank utilized only one account agreement form which offered the depositor a choice of establishing an individual or joint account. The only joint account option available was that of joint tenants with right of survivorship.

The legatees under Mr. Glover’s will, which had been executed the year before the opening of the accounts, consisted of six family members who were to receive equally. Neither appellant nor a second niece were named in the will because they had been provided for separately under a life insurance policy naming them co-beneficiaries. The will did not specifically provide for distribution of the funds on deposit in the two accounts.

Decided September 11, 1992.

Quirk & Ashenden, Neal J. Quirk, for appellant.

Jenkins, Nelson & Welch, William R. Jenkins, for appellee.

We apply the “any evidence” standard of review of the trial court’s denial of a motion for directed verdict, notwithstanding that the evidentiary burden at trial was that of “clear and convincing” evidence. Myers v. Myers, 195 Ga. App. 529 (5) (394 SE2d 374) (1990). The reason is that the jury decides the weight. So long as it is given the correct standard to measure the evidence by, the appellate court decides only if there was “any evidence” to which the jury could apply that standard. The correct standard was charged in this case.

Nevertheless, the record is replete with evidence which provides clear and convincing support to rebut the statutory presumption of appellant’s survivorship rights to the jointly held funds. Godwin v. Johnson, 197 Ga. App. 829 (1) (399 SE2d 581) (1990); Turner v. Mikell, 195 Ga. App. 766 (2) (395 SE2d 20) (1990); Banks v. Todd, 184 Ga. App. 681, 683 (362 SE2d 410) (1987).

2. Appellant contends that in the absence of evidence of fraud a jury charge on constructive trust was unauthorized. However, “[a] constructive trust arises with respect to property the title to which was acquired by fraud, or where although acquired originally without fraud, is it against equity that the title should be retained by the one who holds it.” Kelly v. Johnston, 258 Ga. 660, 661 (1) (373 SE2d 7) (1988). Fraud was not mentioned in the charge. The jury was properly instructed that a constructive trust would arise “where one party holds title to property which rightfully belongs to another.”

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur. Birdsong, P. J., not participating.


author: Sognier, Chief Judge.

text:
    A92A0980.
    CHAVOUS v. THE STATE.
    (422 SE2d 327)
   Sognier, Chief Judge.

Jesse Asa Chavous was convicted by a Richmond County jury of vehicular homicide, failure to obey traffic control devices, reckless driving, and fleeing or attempting to elude a police officer, and acquitted of driving with an expired license and without proof of insurance. He appeals from the denial of his motion for new trial.

Tbe charges against appellant arose from a high-speed chase through two counties on the evening of July 22, 1989. Columbia County Deputy Sheriff Tommy Haigwood observed appellant driving a yellow Ford at 78 mph in a 45 mph zone. When Haigwood pursued, appellant accelerated, at times weaving into the oncoming traffic lane. Two other deputies joined in the pursuit. As the caravan slowed near the intersection of Barton Chapel Road and Gordon Highway, appellant, followed by one deputy, ran the red light at the intersection and collided with the deputy’s patrol car and another vehicle. Appellant and the State stipulated that appellant subsequently was found to have an alcohol concentration level of .17 grams and that the driver of the third vehicle died of injuries received in the collision.

1. Appellant first contends a fatal variance existed as to the reckless driving count because the State failed to prove he drove recklessly in the “2200 block of Barton Chapel Road” as alleged in the indictment. The State acknowledges that it proved only that appellant drove at excessive rates of speed on a number of public roads, including in the vicinity of Barton Chapel Road, but maintains that the referenced language in the indictment constituted mere surplus-age.

A charge of reckless driving is established by proof that the defendant “[drove] any vehicle in reckless disregard for the safety of persons or property,” OCGA § 40-6-390 (a), and this provision applies to “vehicles operated upon highways and elsewhere throughout the state.” OCGA § 40-6-3 (a) (3). In Russell v. State, 174 Ga. App. 436 (1) (330 SE2d 175) (1985), which involved a defendant charged with DUI under OCGA § 40-6-391 (to which OCGA § 40-6-3 (a) (3) also applies), this court held that a variance between the location alleged in the indictment and that proved at trial was not fatal. “ ‘(T)he provisions of (OCGA §§ 40-6-3 and 40-6-391) make it an offense to operate a motor vehicle under the influence of an intoxicant on the public highways and elsewhere in the State of Georgia. The exact location is not a material element of this offense and the (indictment) is sufficiently certain if it charges that the offense was committed in a particular county. [Cit.]’ [Cits.]” Id. at 436-437 (1). We hold that this reasoning applies to a charge of reckless driving, and accordingly we find no reversible error.

2. In his other enumeration appellant maintains that the trial court erred by denying his motion for mistrial made after a prosecution witness violated the terms of a stipulation. Prior to appellant’s trial, his counsel and the State agreed that in exchange for appellant’s consent to stipulate as to his blood alcohol level and the cause of the victim’s death, the State would not introduce evidence of prior similar transactions. When the State called Richmond County Deputy James Vowell as a witness, appellant’s counsel requested the trial court to instruct the witness not to refer to appellant’s status as a habitual violator or otherwise to breach the stipulation.

Decided September 11, 1992.

Peter D. Johnson, for appellant.

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

The court, the witness, and both counsel then engaged in an extensive discussion outside the jury’s presence, with the court attempting to ascertain whether Vowell could explain how he knew appellant was driving with an expired license without referring to the citations for prior offenses he found in appellant’s car after the collision. After determining that Vowell could establish the State’s case on that charge by testifying that he ran a computer check on appellant, the court agreed to permit the testimony, but admonished Vowell that he should limit his testimony to the fact that he ran a computer check on appellant and determined that appellant’s license was expired. The jury returned to the courtroom, the prosecutor asked Vowell whether he determined that appellant had an expired driver’s license, and Vowell responded that “[djuring the course of the investigation, at the scene, while looking through [appellant’s] car, I found some previous citations, which, in fact, were written by me.” The court denied appellant’s motion for mistrial but did instruct the jury to disregard the statement by Vowell.

We agree with appellant that this issue is controlled by the Supreme Court’s recent decision in King v. State, 261 Ga. 534-536 (2) (407 SE2d 733) (1991), in which a law enforcement officer’s failure to comply with a ruling precluding mention of the defendant’s prior jail term required reversal of the denial of his motion for mistrial. Here, as in King, a veteran officer had just been instructed by the court not to mention certain evidence of the defendant’s prior criminal behavior but then proceeded to testify as to the exact information precluded by the court’s ruling. Id. at 535-536 (2). The State’s contention that Vowell was confused by the court’s instructions is not supported by the record. Indeed, Vowell expressly stated that he understood “what [the court and counsel] were looking for [i.e., that he had run a computer check on appellant]. That’s just normal routine.” Moreover, as in King, Vowell was present during and actively participated in the extensive discussion concerning the permissible scope of his testimony. Consequently, “[t]he officer cannot be allowed to avoid the clear intent of [the court’s] instructions by relating that same information to the jury in another fashion. Under these circumstances, it was error not to grant a mistrial.” Id. at 536 (2).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.