text:
    A96A1129.
    COOK v. McNAMEE et al.
    (477 SE2d 884)
   McMurray, Presiding Judge.

The trial court granted defendants Debbie McNamee’s and J. D. Ray’s, d/b/a D. J.’s One Stop, motion to dismiss plaintiff William T. Cook’s appeal based upon plaintiff’s failure to file a transcript in a timely manner pursuant to OCGA § 5-6-48 (c).

The sparse filings designated for inclusion in the record on appeal in the case sub judipe do not elucidate all facts essential for consideration of this appeal. We, therefore, presume that the trial court’s dismissal order is supported by those parts of the record not designated for inclusion in the record on appeal, Smallwood v. Mulkey, 198 Ga. App. 496 (402 SE2d 99), and accept the trial court’s findings that plaintiff’s original notice of appeal (which was dismissed) was filed on August 3, 1994; that plaintiff was granted a 90-day extension to file a transcript for inclusion in the record in this appeal on October 13, 1994; that this extension expired (with no request by plaintiff for renewal) on January 11, 1995, and that plaintiff cancelled his order for a transcript in January 1995 because of a dispute with the court reporter over the cost of the transcript. The trial court observed that this dispute arose after the court reporter informed plaintiff that the transcript would cost over $600 more than the court reporter had originally estimated in October 1994; that “the transcript was in rough-draft form at the time Plaintiff cancelled the order, and [that the transcript] could have been completed in final form sometime in January [1995 had plaintiff not cancelled his order for a transcript in January 1995].” The trial court found that plaintiff contacted the court reporter on February 22, 1995; that plaintiff then discovered that the cost of a transcript could be reduced by excluding all but four exhibits from the transcript and that, after doing so, plaintiff entered into a contract with the court reporter for completion of the trial transcript. The trial court determined that, “by the time the transcript was re-ordered by Plaintiff on February 22, 1995, the court reporter was involved in two death penalty cases, and was unable to immediately return to work on Plaintiff’s transcript, which remained in rough-draft form as of May 8, 1995, the day before the filing of this motion.”

The trial court concluded that plaintiff’s delay in attempting to resolve his dispute with the court reporter, along with plaintiff’s failure to request more time to file the transcript after expiration of his first extension of time to file a transcript, inexcusably caused an unreasonable delay in acquiring a transcript. The trial court thus dismissed plaintiff’s appeal pursuant to OCGA § 5-6-48 (c). Held:

“A trial court has authority to dismiss an appeal if, ‘after notice and opportunity for hearing, (it finds that) there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by (the appealing) party.’ OCGA § 5-6-48 (c). In passing upon these issues the trial court must exercise its discretion, Strother v. C & S Nat. Bank, 147 Ga. App. 140, 141 (248 SE2d 204) (1978), but only if the movant has shown: (1) that the delay in filing was unreasonable; (2) that it was inexcusable; and (3) that it was caused by the appealing party. Department of Human Resources v. Pattilo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990). This court must decide, based on the evidence presented, whether the trial court abused its discretion in dismissing the appeal. Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447) (1975).” Van Diviere v. Delta Airlines, 204 Ga. App. 573, 574 (1) (420 SE2d 27).

In the case sub judice, the trial court concluded that plaintiff’s delay in attempting to resolve his dispute with the court reporter, as well as plaintiff’s failure to request more time to file a transcript after expiration of his first extension of time to file a transcript, inexcusably caused an unreasonable delay in acquiring a transcript. While these circumstances are sufficient to authorize the trial court’s finding that the delay was caused by plaintiff and was inexcusable, Van Diviere v. Delta Airlines, 204 Ga. App. 573, 574 (1), supra, they are insufficient to authorize the trial court’s finding that the delay was unreasonable. See Sellers v. Nodvin, 262 Ga, 205 (415 SE2d 908).

“[T]he threshold question [of] whether [a] delay [in filing a transcript is] unreasonable is a separate matter[ from the issue of whether such a delay is, inexcusable], and refers principally to the length and effect of the delay [rather than the cause of the delay]. OCGA § 5-6-48 (c). See Young v. Climatrol &c. Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737).” (Emphasis in original.) Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1) (363 SE2d 265). In the case sub judice, the trial court found that “118 days passed between the expiration of the ninety (90) day extension and the filing of [defendants’ motion to dismiss plaintiff’s appeal].” But the trial court did not mention whether this delay was so severe as to prejudice- the opposing parties or otherwise cause the appeal to become stale, as these terms are defined in cases such as Sellers v. Nodvin, 262 Ga. 205, supra; Jackson v. Beach Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359); Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1), supra.

In Sellers v. Nodvin, 262 Ga. 205, the Supreme Court held that a 35-day delay in filing a transcript was not unreasonable in light of undisputed evidence showing that the delay did not also “delay transmission of the record to the Court of Appeals.” Id. at 207-208 (2) (b), supra. In Jackson v. Beach Aircraft Corp., 213 Ga. App. 172, the Court of Appeals said that an unreasonable delay may be defined as a delay which “may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale (see, e.g., Cousins Mtg. &c. v. Hamilton, 147 Ga. App. 210 (248 SE2d 516)), such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court. See Sellers, supra at 207 (1) (b).” (Emphasis omitted.) Id. at 173. And in Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, supra, this Court held that an 11-day delay in filing a transcript was not unreasonable because there was no intimation that the appellee suffered any prejudice; that the appeal was stale; that justice was delayed; that inequity resulted or that “there [was] any intermediate change in conditions. See Hornsby v. Rodriquez, 116 Ga. App. 234 (156 SE2d 830).” Id. at 21 (1), 22, supra. This Court also held in Galletta that the delay was not unreasonable because the delayed filing of “the transcript [did not prevent] the placement of the case on the earliest possible calendar in [the Court of Appeals] (Green[ v. Weaver, 161 Ga. App. 295, 296 (291 SE2d 247)]) or [delay] docketing of the appeal and the hearing of the case in this court. See American Oil Co. v. McCluskey, 116 Ga. App. 706, 708-709 (158 SE2d 431).” Id. Consequently, absent such proof in the case sub judice that plaintiff’s delay in ordering a transcript also prejudiced defendants or otherwise caused this appeal to become stale, the trial court’s finding that the delay was unreasonable cannot be sustained. Accordingly, as this Court did in Jackson v. Beach Aircraft Corp., 213 Ga. App. 172, supra, the case sub judice is remanded for the trial court’s finding as to whether plaintiff’s delay was unreasonable as this term is defined in cases such as Sellers v. Nodvin, 262 Ga. 205, supra; Jackson v. Beach Aircraft Corp., 213 Ga. App. 172, 173, supra, and Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1), supra. After the trial court has complied with the remand directions of this Court, and within 30 days of the trial court’s ruling, the trial court may be petitioned to retransmit an appeal expeditiously to this Court for appellate redocketing.

Decided November 5, 1996.

William Latson, for appellant.

Judgment vacated and case remanded with direction.

Johnson and Ruffin, JJ, concur.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellees.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A1353.
    APPLEBY v. MERASTAR INSURANCE COMPANY.
    (477 SE2d 887)
   Ruffin, Judge.

Margaret Appleby sued her homeowners insurance carrier, Merastar Insurance Company (“Merastar”), alleging that it failed to pay for a loss she suffered when her home was burglarized. Merastar moved for summary judgment on the ground that Appleby did not file her complaint within one year after the date of the loss as required by the insurance policy. The trial court granted Merastar’s motion, and Appleby appeals from that order. For reasons which follow, we reverse.

Summary judgment .should be granted only where “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.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Viewed in this light, the evidence of record shows that Appleby’s homeowners insurance policy provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” Appleby’s loss occurred on November 27, 1993, and she promptly reported the loss to Merastar. On February 23, 1994, Merastar examined Appleby under oath as authorized by the policy. On June 2, 1994, Merastar’s counsel, William Claxton, sent Appleby a letter stating that “there are questions regarding this loss” and scheduling a second examination under oath for June 28, 1994. Appleby called Claxton to postpone the examination, and it was rescheduled for August 9, 1994. The examination was again rescheduled for October 27, 1994, after Appleby informed Claxton that her attorney could not attend.

At some point Appleby moved to Florida, and the parties became embroiled in a dispute over the date and site for the examination. Although the examination was eventually rescheduled to take place in Florida on November 4, 1994, Appleby again cancelled.

What occurred next is disputed by the parties. Appleby’s attorney at the time, Robert McLeod, stated in an affidavit that he and Claxton agreed to conduct the examination on January 6, 1995, subject to Appleby’s approval. McLeod further stated in his affidavit that because Appleby was going to be out of the country on that date, Claxton orally agreed to conduct the examination on February 6, 1995.

Merastar contends that Claxton never agreed to conduct the examination on January 6, 1995 or February 6, 1995. In support of this contention, Merastar points to a letter Claxton sent to McLeod’s secretary confirming his conversation concerning the January 6, 1995 examination date. In that letter Claxton stated that “[t]his matter has dragged on far too long and we need to conclude our investigation before the January 6th date you agreed to, Please provide us with an earlier date when Ms. Appleby can make herself available to conduct the [examination] so our investigation may be completed.” In his affidavit, Claxton denied he ever agreed to conduct the examination on January 6, 1995 or February 6, 1995. Finally, the record shows that in four separate letters concerning the examination, Merastar informed Appleby that “[b]y investigating this loss, Merastar does not waive, nor intend to waive, any defenses available to it, but specifically reserves all defenses available under its policy as well as under Georgia law.”

The foregoing evidence is sufficient to create a triable issue of fact as to whether Merastar waived the one-year limitation in Appleby’s insurance policy. We note first that the one-year limitation in the policy is valid and binding on the parties. Suntrust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40, 41 (416 SE2d 322) (1992). Accordingly, absent any evidence that Merastar waived the limitation, Appleby’s suit would have been barred because she filed it more than one year after her loss. However, “an insurer can be held to have waived a limitation period when its ‘investigations, negotiations, or assurances ... up to and past the period of limitation . . . led the insured to believe the limitation would not apply.’ [Cit.]” Id. at 42. Because OCGA § 33-24-40 permits an insurer to investigate claims without waiving such limitation, not all conduct by the insurer will lead to waiver. It is only where the insurer’s conduct reasonably leads “ ‘the insured to believe that a strict compliance with the limitation provision would not be insisted upon.’ [Cit.]” Brown v. Nationwide Ins. Co., 167 Ga. App. 84, 85 (306 SE2d 62) (1983). Where there is evidence of such conduct, the issue of waiver is a question of fact for a jury to decide. Commercial Union Ins. Co. v. F.R.P. Co., 172 Ga. App. 244, 248 (1) (322 SE2d 915) (1984).

Although Merastar argues that it did not agree to any examination after the one scheduled for November 4, 1994, McLeod’s affidavit testimony offers conflicting evidence. If a jury were to believe McLeod’s testimony that Merastar agreed to examine Appleby in January or February, after expiration of the one-year limitation period, then the jury might also find, contrary to the statements in Claxton’s letters, that Merastar did waive the limitation defense. Compare Shelter America Corp. v. Ga. Farm &c. Ins. Co., 209 Ga. App. 258, 259 (1) (433 SE2d 140) (1993) (summary judgment proper where insurer repeatedly stated it was not waiving defenses and there was no evidence of waiver). Accordingly, because there is evidence that Merastar may not have insisted on strict compliance with the limitation provision, the trial court erred in granting Merastar summary judgment.

Decided November 5, 1996

Welch, Spell, Reemsnyder & Pless, Ronald D. Reemsnyder, Hope R. Arbery, for appellant.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, Joseph M. Maguire, Jr., for appellee..

Judgment reversed.

McMurray, P. J, and Johnson, J., concur-.


author: McMurray, Presiding Judge.

text:
    A96A1435.
    PEACOCK v. BEALL.
    (477 SE2d 883)
   McMurray, Presiding Judge.

Albert R. Peacock, Jr. asserted breach of contract and fraud claims against attorney John A. Beall IV, alleging attorney Beall duped him into paying $1,000 for evaluating “a civil lawsuit” by promising “ ‘to go to Court’ ” for Peacock on the matter for an additional $1,500. Peacock alleged that attorney Beall breached this contract a week after it was executed by increasing the additional payment for the promised representation to $5,000. Attorney Beall later moved to dismiss this action because of Peacock’s failure to attach an expert’s affidavit to the complaint as required by OCGA § 9-11-9.1. The superior court agreed and dismissed the complaint in its entirety. This appeal followed. Held:

The affidavit requirements of OCGA § 9-11-9.1 “are limited to those claims ‘for professional malpractice by negligent act or omission, sounding in tort , or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ Barr v. Johnson, [189 Ga. App. 136, 137 (375 SE2d 51). . . . This does not mean, however, that] every claim which calls into question the conduct of one who happens to be a lawyer is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises. Candler General Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987).” (Emphasis omitted.) Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66). . .

Decided November 5, 1996.

Boone, Papadakis & Levine, James J. Gormley III, for appellant.

Michael R. Hauptman, for appellee.

The complaint in the case sub judice does not appear to call into question professional standards of care applicable to attorneys. On the contrary, the complaint raises questions relating to the existence of a legal services contract between Peacock and attorney Beall, whether attorney Beall breached the terms of any such contract, and whether attorney Beall duped Peacock into purchasing $1,000 worth of advice in exchange for a false promise to represent Peacock in a future action for $1,500. Accordingly, since the allegations in the complaint are subject to a construction which could support Peacock’s fraud and breach of contract claims, the trial court erred in dismissing the complaint for noncompliance with OCGA § 9-11-9.1. See Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, supra. See also Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383).

Judgment reversed.

Johnson and Ruffin, JJ, concur.


author: Judge Harold R. Banke.

text:
    A96A1739.
    HENDRIK v. SEXTON.
    (477 SE2d 881)
   Judge Harold R. Banke.

Christopher Hendrix sustained injuries when the car in which he was a passenger rear-ended a truck parked on the side of the road. He sued the driver, Michael Berry Sexton, who successfully moved for summary judgment. On appeal, Hendrix enumerates one error, arguing that questions of fact regarding whether Sexton exercised ordinary care by failing to reduce his speed as he approached the intersection where the collision occurred precluded summary judgment.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that the accident occurred at an intersection where a side street with a stop sign crossed a four-lane divided highway. As Sexton proceeded down the highway at or slightly below the posted speed limit of 50 mph, a car pulled out from the stop sign on Sexton’s left and headed into his car. Even as Sexton moved into the right lane, the car kept coming at him. To avoid a collision, Sexton swerved to the right off the road and into the rear of a parked truck. Both Sexton and Hendrix were injured.

Decided November 5, 1996.

William L. Skinner, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Charles G. Ragsdale, for appellee.

During his deposition, Hendrix testified that Sexton was driving safely and had good control over the car that night. He also admitted there was nothing else Sexton could have done to avoid the accident or the vehicle other than to pull off the road. Hendrix answered in the negative when asked if Sexton had done anything wrong relative to the accident. Held:

Although issues of negligence are generally left to the jury, in cases where the alleged negligent conduct is susceptible to only one inference, the question becomes a matter of law for the court to determine. Douse v. Smith, 186 Ga. App. 166 (366 SE2d 791) (1988) (physical precedent only under Court of Appeals Rule 33 (a)); Lewis v. Duggan, 184 Ga. App. 563, 565 (1) (362 SE2d 73) (1987). We reject Hendrix’s contention that the evidence would have supported the inference that Sexton violated OCGA § 40-6-180 by failing to reduce his speed as he approached and entered the intersection. The undisputed evidence indicates that Sexton had the right of way and the other car simply drove into his path. Douse v. Smith, 186 Ga. App. 166, supra. As Hendrix himself admitted, Sexton could have done nothing else to avoid the oncoming car. Because the record contains no evidence of Sexton’s negligence, Hendrix’s testimony that Sexton was not negligent authorized summary judgment. See Washington v. Washington, 181 Ga. App. 848, 849 (354 SE2d 25) (1987).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1763.
    GREEN v. THE STATE.
    (477 SE2d 895)
   Judge Harold R. Banke.

Alisia Green was convicted of theft by taking, financial transaction card theft, and financial transaction card fraud. She enumerates two errors, challenging the sufficiency of the evidence and the admission of certain testimony.

The evidence, viewed in the light most favorable to the verdict, showed that this case arose after the victim’s purse disappeared from a Kinko’s copying store. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). The victim had spent several hours at the store and realized her loss only as she prepared to pay.

Kinko’s subsequently permitted the victim to view several hours of videotape of the store taken the night of the theft. In the course of viewing the videotape, the victim observed a woman take the purse from the counter and walk out the front door. The victim gave the police the tape.

The victim learned that one of the credit cards stored in her purse had been used at a nearby Circuit City store shortly after she discovered her loss. The police investigated and learned that Circuit City videotaped all its transactions, including the one involving the victim’s credit card, the sale of a cordless telephone.

At trial, the Kinko’s clerk who waited on Green testified that he had worked on her resume and, after watching the video, remembered her because she wore a wild looking long sweater and was accompanied by a toddler. He testified that he had no doubt that Green was the person depicted in the video taking the victim’s purse. He also stated that he had worked on Green’s resume five to ten minutes before the purse was reported missing and Green left without taking the computer disc she had brought in with her resume on it. This information was provided to the police, who used it to locate Green.

Detective Charles Spurlin went to Green’s employer and obtained a company photograph of her. He then arranged to view videotape from the Circuit City transaction, which also showed a woman in a loud sweater accompanied by a toddler. At trial, the State introduced freeze-frames from both sets of videotapes, rather than having the jury view the videotapes in their entirety. Held:

1. A rational trier of fact, viewing the evidence in the light most favorable to the verdict, could find all the essential elements of the crimes. Theft by taking requires proof of (1) an unlawful taking of the property of another (2) with the intent of depriving him of it. OCGA § 16-8-2. The pertinent elements of financial transaction card fraud are (1) the use of an unlawfully obtained financial transaction card (2) for the purpose of obtaining goods (3) with the intent to defraud. OCGA § 16-9-33 (a) (1).

Green contends that reasonable doubt as to the perpetrator’s identity exists in the absence of eyewitness testimony in this case. However, the fact that she was captured on videotape taking the purse and using the credit card subverts this assertion. Although the freeze-frame photographs are not exceptionally clear, the jury was well within its province in determining that Green was the individual in the “wild” sweater accompanied by a toddler seen in the photographs taken at both Kinko’s and Circuit City. See Sorrells v. State, 218 Ga. App. 413 (1) (461 SE2d 904) (1995); accord Pugh v. State, 214 Ga. App. 470, 471 (1) (448 SE2d 16) (1994). Moreover, the Kinko’s clerk who waited on her positively identified the person taking the victim’s purse in the video as Green. The jury was likewise entitled to discount the clerk’s inability to remember the exact time he waited on Green. Further, in conjunction with the videotape of the Circuit City transaction, the State presented the sales receipt which had the victim’s name on it. Green in effect seeks a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). Because Green failed to enumerate as error her contention that the victim’s testimony describing her purse as brown created a fatal variance with the indictment which stated the purse was black, we decline to address that issue. Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995).

Decided November 5, 1996.

Charles R. Floyd, Jr., for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assis tant District Attorney, for appellee.

2. Green waived her argument that the trial court erred in allowing the victim’s purported hearsay testimony describing,what she saw on the Kinko’s videotape. Green’s only objection to this testimony was that the videotape itself was the best evidence of what occurred. See Cleveland v. State, 204 Ga. App. 101, 102 (2) (418 SE2d 430) (1992) (the best evidence rule is restricted to writings). We may not consider arguments which differ from those -asserted in the trial court. Watkins v. State, 206 Ga. App. 701, 705 (3) (426 SE2d 238) (1992). Green may not raise her hearsay objection for the first time on appeal. Mobley v. State, 218 Ga. App. 739, 741 (3) (463 SE2d 166) (1995).

Nor did the trial court err in admitting Detective Spurlin’s explanation of his investigation in which he recounted statements the victim and others had given him. “Under OCGA § 24-3-2, conversations occurring in the course of a legal investigation that explain conduct are not hearsay and are admissible as original evidence.” Funderburk v. State, 221 Ga. App. 438, 439 (1) (471 SE2d 535) (1996).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

       The two theft charges merged for sentencing purposes.

       Taking a financial transaction card without the cardholder’s consent is included in the conduct defined in OCGA § 16-8-2 as theft by taking. OCGA § 16-9-31 (b).


text:
    A96A1788.
    REVIS v. THE STATE. PERELES v. THE STATE. BOWEN v. THE STATE.
    A96A1789.
    A96A1790.
    (477 SE2d 880)
   McMurray, Presiding Judge.

Defendants Revis, Pereles, and Bowen appeal an order of restitution. The order states that: “The Court held a restitution hearing on January 2, 1996. After hearing evidence from the State of Georgia and the defendants, the Court hereby makes a determination of the amount of restitution after considering all the factors listed in O.C.G.A. § 17-14-10.

“The Court finds that the defendants, Peter Revis, James Pereles, and Brandon Bowen owe restitution to Louie Calhoun for the arson of a residence in the amount of $17,531.00, jointly and severally.” Held:

1. Defendant Revis contends that the order did not satisfy the requirement to make a record by specific findings of fact as discussed in Cannon v. State, 246 Ga. 754, 756 (272 SE2d 709) and Garrett v. State, 175 Ga. App. 400, 401 (1), 402 (333 SE2d 432). While the restitution order shows that the trial court has considered the statutory factors, we agree that the order is deficient in that it does not show what the trial court has found as fact. See Gaskin v. State, 221 Ga. App. 142, 144 (3) (470 SE2d 531).

2. Defendants Pereles and Bowen correctly contend that the trial court erred in ordering restitution because no evidence of probative value was presented which supports the amount of restitution ordered. “ ‘The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.’ OCGA § 17-14-9. ‘(T)he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. (Cits.)’ Lawrenz v. State, 194 Ga. App. 724 (1) (391 SE2d 703) (1990).” Gaskin v. State, 221 Ga. App. 142, 144 (3), 145, supra.

The house which was destroyed by defendants was carried on the county tax rolls at a value of $600. No one had lived in the house in recent years and of the last three tenants who had occupied the house, the most rent that had been paid the victim was $25 per month. The only evidence attributing a substantial value to the house was that of the victim who calculated that the materials to build a replacement for the house would cost in excess of $31,000. But this figure did not reflect any allowance for depreciation even though the victim had owned an interest in the house for more than 30 years and did not know when the house had been constructed. The absence of any allowance for depreciation is fatal to the probative value of the victim’s testimony. Gaskin v. State, 221 Ga. App. 142, 145 (3), supra.

Decided November 5, 1996.

D. Duston Tapley, Jr., for Revis.

McNatt, Greene & Thompson, Richard S. Thompson, Malcolm F. Bryant, Jr., for Pereles and Bowen.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

3. The remaining enumerations of error are without merit. We vacate the judgments as to restitution and remand these cases to the trial court for a new hearing on restitution and the entry of a new order based upon written findings.

Judgments vacated as to restitution and cases remanded with direction.

Johnson and Ruffin, JJ, concur.


text:
    A96A2240.
    JACKSON v. THE STATE.
    (477 SE2d 893)
   McMurray, Presiding Judge.

Defendant’s conviction for possession of cocaine with intent to distribute was affirmed on direct appeal. Jackson v. State, 216 Ga. App. 842 (456 SE2d 229), decided February 27, 1995. On April 25, 1996, he filed in the trial court a post-appeal “MOTION TO CORRECT VOID SENTENCE,” in which he contended that his mandatory life sentence for a second violation of OCGA § 16-13-30 (b), imposed under former OCGA § 16-13-30 (d), Ga. L. 1980, pp. 432, 433, § 1 (d), was a “disproportionate and discriminatory sentence for minor drug offenses.” This direct appeal follows the denial of defendant’s post-appeal motion. Held:

1. The State’s motion to dismiss this direct appeal from an order refusing to set aside an allegedly void sentence is denied. See, e.g., King v. State, 103 Ga. App. 272, 276 (3), 277 (119 SE2d 77).

2. Defendant argues that he should be given the benefit of the trial court’s discretion to entertain mitigating circumstances as authorized under present OCGA § 16-13-30 (d), Ga. L. 1996, p. 1023, § 1.1. As amended, OCGA § 16-13-30 (d) imposes, for a second or subsequent violation of OCGA § 16-13-30 (b), a sentence of “not less than ten years nor more than 40 years or life imprisonment.”

“Laws prescribe only for the future; they cannot . . . ordinarily, have a retrospective operation.” OCGA § 1-3-5. “According to [defendant’s] argument, the legislature could never enact a statute that would ameliorate or repeal a prior sentencing provision unless the new law were given retroactive effect. The [United States] Constitution contains no such requirement. [Cit.] Where a criminal statute does not discriminate on racial grounds or against a suspect class, equal protection and due process concerns are satisfied if the statute bears a ‘reasonable relation to a proper legislative purpose’ and is ‘neither arbitrary nor discriminatory.’ United States v. Holmes[,] 838 F2d 1175, 1177 (11th Cir. 1988) (quoting Nebbia v. New York, 291 U. S. 502, 537 (54 SC 505, 78 LE 940) (1934)).” Fleming v. Zant, 259 Ga. 687, 688 (1) (386 SE2d 339). In the case sub judice, the legislative purpose in amending the sentencing provisions of OCGA § 16-13-30 (d) to impose a minimum mandatory sentence of ten years while according the trial court the discretion to impose a life sentence “bears a reasonable relationship to a legitimate legislative concern for [repeat offenders of OCGA § 16-13-30 (b)]. Thus, we conclude that [defendant’s] equal protection and due process claims are without merit.” Fleming v. Zant, 259 Ga. 687, 688 (1), supra.

Decided November 5, 1996.

Frank D. Jackson, pro se.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

3. Defendant’s additional contention, that the mandatory life sentence required by former OCGA § 16-13-30 (d) is disproportionate because it deprives the defendant of an opportunity to present mitigating circumstances has been considered and is found to be without merit. Isom v. State, 261 Ga. 596 (1), 597 (408 SE2d 701).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1260.
    SANTANA et al. v. FIRST GUARANTY MANAGEMENT CORPORATION et al.
    (477 SE2d 857)
   McMurray, Presiding Judge.

As Salomen Santana, Juan Santillan and Hector Berrios (“the painters”) were painting an apartment building owned by Sherwood Associates, a Limited Partnership, and Sherwood Apartments, Inc. (“the owners”), they were injured by high-voltage electricity from Georgia Power Company’s (“Georgia Power”) overhead power cable. The incident occurred while the painters were raising an extension ladder to the building’s second-story eave. An electrical bolt hit the painters when the ladder either touched or came too close to the nearby power cable, which was more than 28 feet off the ground but less than 56 inches from the targeted work area. The gap between the eave and the power cable did not comply with standards prescribed by the National Electric Safety Code. And according to an experienced electrical engineer, the cable’s, positioning presented an unreasonable and foreseeable risk of harm to laborers working on or near the owners’ apartment building.

Santana, Santillan, Berrios and others (plaintiffs) asserted a damage suit, contending Georgia Power negligently installed and maintained its high-voltage power cable and that this negligence is a proximate cause of their injuries. Plaintiffs also charged the owners and the owners’ property manager, First Guaranty Management Corporation (“the proprietor”), for failing to provide Santana, Santillan, and Berrios with a safe place to work and failing to warn the painters about the perilously placed power cable. Plaintiffs further asserted — in fending off the proprietor’s motion for summary judgment — that the proprietor is responsible for their injuries because the proprietor did not provide Georgia Power with notice, as required by OCGA §§ 46-3-33 and 46-3-34 (b), of the activities which brought the painters within ten feet of the high-voltage power cable.

This appeal is from an order granting the proprietor’s motion for summary judgment. The case against Georgia Power remains in the trial court. Held:

1. The “superior knowledge” rule generally applies in premises liability cases. This rule provides that “ ‘ “[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Cits.) One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.’ (Cits.) (McKnight v. Guffin, 118 Ga. App. 168, 169 (162 SE2d 743) (1968).)” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (3), 392, supra.

In the case sub judice, plaintiffs admit the painters had just as much opportunity to observe the overhead power cable as did the proprietor. But they argue that the cable was not an open and obvious hazard to the painters because they are “Mexican nationals and could not read or write English . . .” and because the high-voltage power cable appeared to be a harmless wire, no different than the non-electrical utility cables that were also strung near the accident scene. This logic, however, bends both ways when comparing the parties’ relative knowledge of the hazard. For instance, the proprietor’s property manager also testified that the high-voltage power cable appeared harmless to him, explaining that he knew nothing about the high-voltage cable’s location or electrical properties before the painters’ injuries. Thus, just as the painters could not openly observe the hazard, nor could the proprietor. The pivotal question then is whether the proprietor had an affirmative duty to identify Georgia Power’s high-voltage power cable and protect the painters against dangers associated with working near the cable.

In Williams v. Nico Indus., 157 Ga. App. 814 (278 SE2d 677), disapproved on other grounds in Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145), a subcontractor’s employee was injured during a renovation project “while painting the exterior wall of an apartment building owned by ITR Properties, Inc. (ITR). [The injured employee] was standing on a 40 foot aluminum ladder approximately 35 feet above the ground. He was using a paint roller attached to an 8 foot extension handle, which came in contact with, or close enough to, a high voltage electric line to conduct a severe electrical shock to. [the employee], causing him to fall off the ladder.” Williams v. Nico Indus., 157 Ga. App. 814, supra. This Court affirmed the denial of ITR’s motion for summary judgment, holding (in pertinent part) that former Code Ann. § 105-401, now OCGA § 51-3-1, imposes a duty upon the party controlling the premises during a renovation project to guard against hazards associated with work activities near high-voltage power cables. The Court thus concluded (in pertinent part) that proof regarding ITR’s use and control of the premises during the renovation project — albeit diminished — was sufficient to raise genuine issues of material fact as to whether ITR, ITR’s general contractor, or both were in control of the premises at the time of the accident and thus subject to liability under former Code Ann. § 105-401, now OCGA § 51-3-1, for the subcontractor’s employee’s injuries. Williams v. Nico Indus., 157 Ga. App. 814, 816 (2) (b), 817, supra.

Just as in Williams, the painters in the case sub judice were employees of a subcontractor who was engaged in a renovation project on the owners’ premises. And like the landowner in Williams, the proprietor in the case sub judice maintained use and control over the premises during the renovation project, including control over the flow of power via the high-voltage cable that electrified the painters. Consequently, for the same reasons this Court affirmed the denial of ITR’s motion for summary judgment in Williams v. Nico Indus., 157 Ga. App. 814, 816 (2) (b), 817, supra, we reverse the trial court’s granting of the proprietor’s motion for summary judgment. Compare Anderson v. Saffold, 134 Ga. App. 31, 34 (213 SE2d 127).

Decided October 25, 1996

Reconsideration denied November 6, 1996

Wall & Noonan, Douglas T. Noonan, for appellants.

Troutman Sanders, Robert L. Pennington, McLain & Merritt, William S. Sutton, Parkerson, Shelfer & Groff, I. J. Parkerson, Hamilton, Westby, Marshall & Antonowich, Steven A. Westby, for appellees.

2. Plaintiffs contend the proprietor is also responsible for their injuries for failing to give Georgia Power prior notice as required by OCGA §§ 46-3-33 and 46-3-34 (b). This contention is without merit for the reasons stated in Johnson v. Richardson, 202 Ga. App. 470 (1) (414 SE2d 698).

Judgment reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

       This is different from the duty owed by an electric utility. “One maintaining high tension lines must maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them. Carden v. Ga. Power Co., 231 Ga. 456-457 (202 SE2d 55).” (Emphasis omitted.) Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299). See Malvarez v. Ga. Power Co., 166 Ga. App. 498, 499 (2) (304 SE2d 542). Compare Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345).

       Photographs of the accident scene support this concession, revealing that the power cable was neither obscured from view nor too thin or high to discern from ground level. These photographs, as well as other proof, reveal that the power cable was suspended on utility poles along an adjacent roadway, was just over twenty-eight feet off the ground and was less than five feet from the targeted work-area.


author: Johnson, Judge.

text:
    A96A2042.
    STATE OF GEORGIA v. TUTEN.
    (478 SE2d 138)
   Johnson, Judge.

Pursuant to OCGA § 5-7-1 (a) (4), the State of Georgia appeals the grant of Alton Tuten’s motion to suppress the results of a blood-alcohol test performed on an Intoxilyzer 5000 machine. The sole error enumerated in this appeal is that the trial court erred by granting the motion to suppress on the grounds that the machine had not been approved by the Georgia Bureau of Investigation, Division of Forensic Sciences, in accordance with the Administrative Procedure Act, OCGA § 50-13-1 et seq.

This issue was recently considered by this Court and decided adversely to the trial court’s ruling. See Corner v. State, 223 Ga. App. 353 (477 SE2d 593) (1996). In light of that holding, the trial court’s grant of Tuten’s motion to suppress on this ground must be reversed and the case remanded.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

Decided October 15, 1996

Reconsideration denied November 6, 1996

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cíiff Howard, Assistant Solicitors, for appellant.

Kimberly A. Dymecki, for appellee.


text:
    A96A1006.
    WILBURN v. THE STATE.
    (477 SE2d 909)
   Ruffin, Judge.

• A jury found Jackie Wilburn guilty but mentally ill of three counts of making a terroristic threat and one count of stalking. The court sentenced Wilburn to serve five years for each conviction of making a terroristic threat and twelve months to serve concurrently on his conviction for stalking. On appeal Wilburn challenges the sufficiency of the evidence and his sentence. We affirm.

Viewed in a light most favorable to the verdict, the evidence at trial showed that Wilburn believed he had a possible adverse possession claim against Richmond and Rebecca Aggreys’ residence. Wilburn also believed that Rebecca Aggrey stole some lyrics he had written. In connection with these beliefs, Wilburn sent several letters to the Aggreys and made several harassing and “threatening” phone calls to them. Richmond Aggrey testified that in one letter Wilburn stated that he intended to “get a gun or something like that. . . .” Richmond Aggrey further stated that in one telephone call Wilburn told him that he, Aggrey, was living in Wilburn’s house and that Aggrey was “not going to be [there] for long . . . and if [the Aggreys] don’t leave, he’s going to get us.” Rebecca Aggrey similarly testified that during another phone call, Wilburn stated “I’m going to get you and you’re not going to get away with this. . . .” Rebecca Aggrey stated that Wilburn’s threats made her think that he was going to do her and her husband bodily harm and that her life was in danger. Wilburn also changed his name to Richmond Aggrey, obtained a driver’s license in the name of Richmond Aggrey, applied for a social security number under Richmond Aggrey’s name, and attempted to obtain a credit card in the name of Richmond Aggrey. Police eventually arrested Wilburn for stalking the Aggreys.

Detective Westin and Deputy Stamper transported Wilburn to jail. Westin testified that during the trip Wilburn told him “he was going to kill me and that I’d never make it to trial.” According to Westin, Wilburn also stated that he was going to kill Richmond and Rebecca Aggrey. Deputy Stamper testified that he heard Wilburn tell Detective Westin that he was going to kill him and that he would never make it to court. Deputy Stamper further testified that when Wilburn threatened Detective Westin “[i]t made the hair on my neck stand up. I took the man very serious.” Wilburn acknowledged at trial that he told Detective Westin “I’ll kill you,” because he made him mad.

1. Wilburn asserts that there was insufficient evidence to find him guilty of making terroristic threats because the victims’ testimony concerning the threats was uncorroborated and because there was no evidence that Wilburn intended to terrorize the victims. We disagree.

“ ‘As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not g'o behind the jury verdict and pass on its probative value.’ ” (Citations omitted.) Stone v. State, 210 Ga. App. 198, 199 (435 SE2d 527) (1993).

The victims’ testimony in this case was sufficiently corroborated. Rebecca Aggrey’s testimony was corroborated by the testimony of her husband and Detective Westin. Richmond Aggrey’s testimony was corroborated by the testimony of his wife and Detective Westin. Detective Westin’s testimony was corroborated by Deputy Stamper’s testimony.

Furthermore, “[djirect evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a jury to find the threats were made for such a purpose.” (Citations' and punctuation omitted.) Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341) (1994).

Under the circumstances of this case, we conclude that there was sufficient evidence for a rational trier of fact to find Wilburn guilty beyond a reasonable doubt of making terroristic threats against the three victims. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stone, supra; Jordan, supra.

2. Wilburn asserts that the sentences imposed were disproportionate to the offenses charged and constituted cruel and unusual punishment.

OCGA § 16-11-37 (c) provides that “[a] person convicted of the offense of a terroristic threat or act shall be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.” Under OCGA § 16-5-90 (b), stalking is a misdemeanor offense which is punishable by confinement up to 12 months. OCGA § 17-10-3 (a). “This court is not empowered to modify a sentence which is within the statutory limits for the offense. Any question as to the excessiveness of the sentences, which in this case were within the legal limits, should be addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Morgan v. State, 197 Ga. App. 397 (398 SE2d 866) (1990). Accordingly, we find no error.

Decided November 6, 1996.

Richard S. Lord, for appellant.

William T. McBroom III, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Johnson, J, concur.


text:
    A96A1345.
    EBERHARDT et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (477 SE2d 907)
   McMurray, Presiding Judge.

Plaintiffs Myron Eberhardt and Jane Eberhardt filed an action against defendant Georgia Farm Bureau Mutual Insurance Company to recover sums allegedly due as the proceeds of an insurance policy covering certain real property which was damaged by a tornado. Plaintiffs filed this direct appeal from a judgment in their favor in the amount of $5,000. Held:

1. These circumstances create a first impression that we lack jurisdiction to consider this appeal due to the failure to follow the procedure set forth by OCGA § 5-6-35 (b). We would generally expect the discretionary appeal procedure to be applicable since the amount of the judgment seems to place this case in the category identified by OCGA § 5-6-35 (a) (6), that is, an action for damages in which the judgment is $10,000 or less. Nonetheless, under the following analysis, we have concluded that OCGA § 5-6-35 is inapplicable and that the direct appeal is proper under the circumstances of the case sub judice.

Upon consideration of defendant’s motion for summary judgment, the contested issues in the case were resolved in favor of defendant and against plaintiffs. The superior court then concluded that the uncontroverted amount of damages in the case was $40,888.96, an amount well in excess of the threshold set out in OCGA § 5-6-35 (a) (6). Nonetheless, defendant was credited with a set-off to the judgment based upon prior payments by defendant to plaintiffs, resulting in the final award of $5,000.

In the tort case of Bales v. Shelton, 260 Ga. 335 (391 SE2d 394), the Supreme Court of Georgia held that for the purpose of determining whether a judgment falls within the range defined in OCGA § 5-6-35 (a) (6), we must look to the amount of damages involved in the case rather than to the remainder left after the amount of damages is reduced by a set-off such as a prior payment. While the present case involves a contract claim, we see no reason to avoid applying here the reasoning expressed in Bales.

Decided November 6, 1996

Stewart, Melvin & Frost, J. Douglas Stewart, for appellants.

Carey, Jarrard & Walker, Christopher J. Walker III, for appellee.

2. The primary issue presented by plaintiffs on appeal is whether an appraisal clause in the insurance policy issued by defendant was enforceable. This clause of the policy provided a procedure for determining the amount of plaintiffs’ loss. Defendant invoked the appraisal clause, and each side chose their appraiser. The two appraisers selected an umpire. Pending the outcome of the appraisal, defendant made an advance payment to plaintiffs of $35,888.96. Eventually, the two appraisers agreed on the amount of loss as being $40,888.96 or $5,000 more than had been advanced to plaintiffs. Plaintiffs refused the tendered check for the $5,000 balance and filed this action, contending that the appraisal clause of the policy is not binding by reason of OCGA § 9-9-1 et seq. Nonetheless, this “Georgia Arbitration Code” (OCGA § 9-9-1) does not apply to contracts of insurance (OCGA § 9-9-2 (c) (3)), while the pre-existing case law plainly holds that such appraisal clauses in homeowner policies are binding on the parties. Southern Gen. Ins. Co. v. Kent, 187 Ga. App. 496, 497 (1) (370 SE2d 663).

The superior court did not err in granting defendant’s motion for summary judgment concerning the enforceability of the appraisal clause. The remaining issues raised by plaintiffs concerning bad faith penalties and attorney fees are thus rendered moot.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1660.
    SCOTT v. THE STATE.
    (477 SE2d 901)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with aggravated sodomy, for acts allegedly committed against the victim, “C. H.” The evidence adduced at defendant’s jury trial revealed that on July 29, 1993, both he and C. H. were inmates at the Clarke County jail. C. H. had been placed in administrative segregation “for his own safety.” C. H. was described as “a little bit slow.” He takes the medications “Cogentin [daily] and a Haldol shot once a month[, . . . for] bad nerves and stuff like that. . . .” When C. H. accidentally broke a radio he had borrowed, defendant told him “[he] was going to have to pay him for it.” Defendant “wanted . . . money from [C. H.] or either have sex with [C. H.].” C. H. “tried to explain to [defendant] what happened, but that they didn’t want to listen at it, so — And [C. H.] told [defendant] I didn’t have no money [sic]. And so they decided that they wanted to rape me.” “That’s when they pushed me over on the bed, you know, first [another inmate] slapped me two times, and they pushed me over on the bed, . . . took off my shoes while somebody was holding the blanket up to the door, . . . that’s when [defendant] tried to go up in me, just go up in me. And then it went between my legs, . . . because . . . [defendant] knowed that he couldn’t go up in me, that he went between my legs. And they hold me down for about five, about five or ten minutes.” Defendant “put the Vaseline on [C. H.]. Put it all the way on, all the way in [C. H.’s] butt. [Defendant] made [C. H.] spread [his] legs, and put it all on [his] butt.” “That’s when he tried to go up in me. Went up in me.” “He tried to go up in me with penis[, . . . by] making me lay down with the grease and stuff like that.” C. H. affirmed that defendant “got it up with his penis onto [the victim’s] rectum.”

In a custodial statement read to the jury, defendant denied any forcible sexual contact, contending that the victim volunteered. Defendant also stated, “I was just going to slick leg the boy.” “I took the grease, greased myself up, and slick legged him. Ain’t no dick go in the boy.”

The jury found defendant guilty as charged. His motion for new trial was denied, and this appeal followed. Held:

1. Defendant’s second enumeration of error urges the general grounds. He argues the absence of medical or physical evidence, coupled with the victim’s “equivocal [testimony, . . . casts] doubt as to the sufficiency of the evidence. . . .”

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, tó support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130).

“A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person.” OCGA § 16-6-2 (a). Proof of penetration is not required under this Code section. “In our view all that is required is some contact.” (Emphasis in original.) Carter v. State, 122 Ga. App. 21, 23 (4) (176 SE2d 238). Proof of penetration is nevertheless required in this case because of the specific averments in the indictment. “The victim’s testimony [in the case sub judice, indicating partial penetration,] was ample proof that the act of anal sodomy was committed with force and against [his] will. Robertson v. State, 184 Ga. App. 796 (1) (363 SE2d 43) (1987). Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could reasonably have found from the evidence adduced below proof of [defendant’s] guilt of aggravated sodomy [as alleged in the indictment] beyond a reasonable doubt according to the standard set forth in Jackson v. Virginia, 443 U. S. 307[, supra]. See Clark v. State, 186 Ga. App. 882 (369 SE2d 282) (1988).” Brinson v. State, 208 Ga. App. 556, 558 (4) (430 SE2d 875). Accord Foster v. State, 216 Ga. App. 26, 27 (2), 28 (453 SE2d 482). The enumeration of the general grounds is without merit.

2. Defendant enumerates the denial of his motion for new trial on the special ground of ineffective assistance of counsel. He contends trial counsel failed to investigate the case adequately; failed to impeach the victim with proof of prior felony convictions including a guilty but mentally ill plea to aggravated assault; and failed to request instructions on the lesser-included offenses of sodomy, attempted sodomy, and sexual battery. The trial court determined that “the acts and omissions of Defendant’s trial counsel were outside the range of professionally competent assistance^ but nevertheless concluded that] the evidence does not support a finding that there is a reasonable probability that, but for counsel’s errors, the result would have been different.” We agree that defendant failed to establish that he was denied effective assistance of counsel.

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense that was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations, punctuation and emphasis omitted.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).

“As to each of these claims [in the case sub judice], ‘(w)e have reviewed the transcript of that hearing (at which trial counsel [was medically unavailable to testify]) (as well as the trial transcript) and find sufficient evidence to support the trial court’s conclusion that [defendant] failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). (Cit.)’ Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993).” Robinson v. State, 210 Ga. App. 278, 279 (3) (435 SE2d 718).

(a) At the hearing on defendant’s motion, Dr. Scott Snyder, a psychiatrist, testified that “Haldol is what is known as an anti-psychotic. It’s designed to counteract symptoms of psychosis, such as hallucinations where people hear voices talking to them, or they see things that aren’t really there, or they have delusions which are false beliefs.” “Cogentin is a pure acety[l]choline blocker[, . . .] used to counteract some other side effects associated with antipsychotics, such as stiffness as or rigidity, what are known as extraparametal side effects. The Cogentin is oftentimes given with Haldol to counteract those side effects.” But Dr. Snyder also confirmed that Haldol would not “make a person less inclined to be truthful with it[, . . . nor would it] make a person more inclined to falsify, exaggerate, prevaricate or anything ordinarily associated with untruthfulness. . . . And the same thing would be true with Cogentin.”

“The extent of pretrial investigation of the case [sub judice] and counsel’s consultation with the accused was subject to conflicting evidence, such that the trial court’s determination as to these alleged omissions is not clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641).” Robinson v. State, 210 Ga. App. 278, 279 (3), supra. Specifically, the evidence supports the trial court’s determination that trial counsel’s failure to cross-examine the victim regarding these prescriptions did not undermine confidence in the original proceeding and was not reasonably likely to lead to a different result. See, e.g., Lewis v. State, 265 Ga. 451, 452 (3) (457 SE2d 173).

(b) We assume, without deciding, that counsel’s failure to impeach the victim under OCGA § 24-9-84 with proof of general bad character as evinced by prior felony convictions fell below that level of competence members of the bar in good standing are presumed to render. But we agree with the trial court that this omission does not require reversal and a new trial.

Decided November 6, 1996

Jeffrey G. Gilley, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

“ ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ [Cit.]” Goodwin v. CruzPadillo, 265 Ga. 614, 615 (458 SE2d 623). In the case sub judice, defendant’s own custodial statements established his willingness to engage in anal sodomy, such that there is no reasonable probability that the result of the proceeding would have been different even with this proof of the victim’s general bad character. “Overwhelming evidence of [defendant’s] guilt, including the testimony of the victim as well as the contradictory and inconsistent statements of [the eyewitness inmates, coupled with the custodial statement of] defendant [admitting sexual contact] renders [counsel’s omission] harmless.” Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748).

(c) Defendant conceded that counsel’s trial strategy was an all- or-nothing defense, that is, complete denial of the charge. “ ‘In the absence of testimony to the contrary, counsel’s actions áre presumed strategic. [Cits.]’ Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188). ‘The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with (the) client.’ (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1), 79, supra.” Hudson v. State, 218 Ga. App. 671 (1), 672 (462 SE2d 775). In the case sub judice, the absence of expert testimony regarding trial counsel’s decision not to request instructions on lesser-included offenses to aggravated sodomy, such as sodomy, attempted sodomy, and sexual battery, means that the decision is presumed to be strategic and not unprofessional. Consequently, defendant has failed to establish even the first prong of the applicable inquiry. Compare Pearson v. State, 216 Ga. App. 333 (454 SE2d 205); Wilson v. State, 199 Ga. App. 900 (406 SE2d 293).

Judgment affirmed.

Johnson, J., and Judge Marvin W. Sorrells concur. Ruffin, J., not participating.


author: McMURRAY, Presiding Judge.

text:
    A96A1709.
    CAMPBELL v. THE STATE.
    (477 SE2d 905)
   McMURRAY, Presiding Judge.

Defendant Campbell appeals his conviction of the offenses of armed robbery, kidnapping, hijacking a motor vehicle, rape, and aggravated assault (with intent to rape). Held:

1. Campbell contends that the State failed to prove venue in Clarke County with regard to the offense of rape. Co-defendant Bolden and Campbell were accused of an offense of rape (as parties thereto) which was actually perpetrated by co-defendant Dillard. (The appeals of the co-defendants are Case Nos. A96A1505 and A96A1506.) The victim- stopped briefly at a grocery store in Clarke County just past midnight. As the victim returned to her car in the grocery store parking lot, she was forced into the back seat of her vehicle with Bolden. After Dillard was unable to drive her manual transmission car, he replaced Bolden in the back seat, and Bolden drove. Campbell followed in his own car. The vehicles proceeded for a period of time and then stopped on a dirt road where the victim was repeatedly sexually assaulted by all three of her abductors. These sexual assaults included a rape of the victim by Dillard. Campbell then left in his separate vehicle while Bolden, Dillard, and the victim continued to Florida. The victim was released in Florida.

In his statement to police, Campbell provided detailed information concerning the route taken by the two vehicles after they left the grocery store parking lot and identified a location in Morgan County where the dirt road stop had occurred. The victim was forced to lie down in the back seat of her car; therefore, she saw little of where the car went during the interval immediately following her abduction and did not recognize the place on a dirt road where the vehicle was stopped and she was sexually assaulted.

In response to motions for directed verdict and new trial questioning whether the Clarke County venue had been proven, the State has relied upon OCGA § 17-2-2 (e) which provides that: “If a crime is committed upon any . . . vehicle . . . traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as . having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled.” This brings us to the question of whether the jury was obliged to accept, as accurate, the evidence from Campbell’s statement concerning the location of the dirt road site, or whether the jury was authorized to disregard that evidence. While the jury may not arbitrarily disregard uncontradicted evidence from a credible witness, there was sufficient contradiction of other portions of Campbell’s statement as to place in the hands of the jury all issues concerning the weight and credit to be afforded the evidence concerning that statement. Jones v. State, 265 Ga. 84 (2), 85 (453 SE2d 716); Davis v. State, 242 Ga. 901, 907 (8) (252 SE2d 443). Thus, the jury was authorized to reject that portion of Campbell’s statement relating to the site of the sexual crimes.

The remaining venue evidence would then be the victim’s testimony that the vehicle traveled for a time while making many turns so that she did not know where 'the site at which they stopped was located. This, combined with the evidence that the abduction had taken place in Clarke County would amount to sufficient proof that the rape of the victim by Dillard could have occurred in Clarke County. Withman v. State, 210 Ga. App. 159 (435 SE2d 519).

2. Next, Campbell contends the trial court erred in sentencing him consecutively for the armed robbery conviction and for the hijacking a motor vehicle conviction because both convictions are based on the same conduct and thus merge. While he maintains that his sentence is prohibited by state law double jeopardy provisions, particularly OCGA § 16-1-7, the prosecution maintains that these provisions*are superseded by OCGA § 165-44.1 (d) which provides that: “The offense of hijacking a motor vehicle shall be considered a separate .offense and shall not merge with any other offeiise.”- The prosecution’s view being well supported by the rationale of the decision in Miller v. State, 250 Ga. 436 (298 SE2d 509), we find no error in the punishment imposed. See also Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714); Wilson v. Zant, 249 Ga. 373, 379-380 (2) (290 SE2d 442); State v. Estevez, 232 Ga. 316 (206 SE2d 475); Clark v. State, 206 Ga. App. 10, 11 (1) (424 SE2d 310); Kennedy v. State, 195 Ga. App. 795 (1) (395 SE2d 270); and Glover v. State, 192 Ga. App. 798, 800 (1) (386 SE2d 699).

3. Campbell’s final enumeration of error complains of the denial of his motion for arrest of judgment as to the arriied robbery charge. This motion is predicated upon an alleged defect in the indictment. A motion to arrest judgment due to a defective indictment should be granted only where the indictment is absolutely void. Staples v. State, 199 Ga. App. 551, 552 (405 SE2d 551). Campbell contends that the indictment is void because it omits an essential element of the crime of armed robbery, that the taking of property is “from the person or the immediate presence of another.” See OCGA § 16-8-41.

The indictment alleges the offense of “armed robbery” in that the defendants “with the intent to commit a theft, did take property, a Plymouth Sundance four (4) door automobile, ... by use of a knife, an offensive weapon.” While it is not explicitly stated in the indictment that the vehicle was taken from the person or immediate presence of another, such is necessarily inferred from the allegation of a use of an offensive weapon to accomplish the taking. It should also be recognized that the alleged offense of “armed robbery” cán be accomplished only via a taking from the person or immediate presence of another. Considering the allegations of the indictment as a whole, there was no failure to allege all of the elements of the crime of armed robbery. There can be no reasonable doubt that Campbell was sufficiently informed of the charges against him and also protected from subsequent prosecution for the same crime. The trial court did not err in denying defendant Campbell’s motion for arrest of judgment. Tennesson v. State, 214 Ga. App. 103 (447 SE2d 152); Hammock v. State, 201 Ga. App. 614 (1), 616 (411 SE2d 743); State v. Howell, 194 Ga. App. 594 (391 SE2d 415); Houston v. State, 189 Ga. App. 61 (1), 62 (375 SE2d 239).

Decided November 6, 1996.

Tony L. Axam, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, J., and Judge Marvin W. Sorrells concur. Ruffin, J., not participating.


text:
    A96A1730.
    JENKINS et al. v. THE STATE.
    (477 SE2d 910)
   Johnson, Judge.

Barbara Jenkins and her daughter, Chastity Jenkins, were found guilty of cocaine trafficking. Barbara Jenkins was also found guilty of possessing marijuana. Both defendants appeal from the denial of their motions to suppress the seized drugs. We affirm.

When reviewing an order on a motion to suppress evidence, an appellate court must construe the evidence favorably to upholding the findings and judgment of the trial court. The trial court’s findings on credibility and disputed facts will not be disturbed on appeal unless they are clearly erroneous. State v. Goodman, 220 Ga. App. 169, 170-171 (2) (469 SE2d 327) (1996). Viewed in this light, the evidence shows that several DeKalb County police officers were dispatched to the home of Lillie Mae Jenkins, mother of Barbara Jenkins and grandmother of Chastity Jenkins, to investigate reports that drugs were being sold there. The state advanced no evidence that these reports should have been considered reliable. As one of the officers got out of the first patrol car to arrive, he saw two men on the porch, talking to a woman standing near the front door. The woman was later identified as Barbara Jenkins. The officer saw in her hand a clear plastic bag containing a green, leafy substance he suspected was marijuana.

When they saw the officers, the two men moved away quickly, and Barbara Jenkins went inside. The officer who had seen the bag of leafy material pursued her into the kitchen, where she tried to put the bag in her purse. The officer arrested her and seized the bag of what was later proven to be marijuana.

The trial court found that after Barbara Jenkins’ arrest, one of the officers asked for and received the consent of the homeowner, Lillie Mae Jenkins, to a further search. The Jenkinses contend there was insufficient evidence to support this finding. The officers walked through the house, however, and found cocaine in plain view, on a plate on the floor of a closet that had no door. The officers then called for a canine search. When the officer in charge of the dog arrived, he suggested that they first obtain a warrant for the canine search. After the warrant was issued, the dog went into the house and found hidden cocaine. The officers then arrested Chastity Jenkins, who had also been inside the house when they arrived, and Lillie Mae Jenkins. The charges against Lillie Mae Jenkins were later dropped.

1. Barbara and Chastity Jenkins contend the officer who arrested Barbara Jenkins entered the curtilage of the Jenkins’ property before he saw the marijuana in her hand; and that he had no right to be there, because there were no exigent circumstances, and he did not have a search warrant, articulable suspicion, or probable cause. Therefore, they contend, the seizure of the marijuana was improper, as was the resulting cocaine seizure.

Neither the testimony nor the trial court’s findings make clear whether the officer was still in the street when he saw the marijuana or had already stepped into the yard on his way to the front porch. Even if he was already in the yard, however, the seizure of the marijuana was valid. “Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. . . . After all, such an officer is merely taking the same route as would any guest or other caller.” (Citations omitted.) State v. Zackery, 193 Ga. App. 319, 320 (387 SE2d 606) (1989). When the officer saw Barbara Jenkins holding the marijuana, he had not even progressed to the point of knocking on an outer door; he was merely on the way to the front door. He had therefore committed no Fourth Amendment violation to that point. Id.; State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981).

Having seen Barbara Jenkins commit the offense of marijuana possession during this “valid intrusion” (Zackery, supra), the officer needed no warrant to arrest her. OCGA § 17-4-20 (a); Clark v. State, 212 Ga. App. 486, 487 (441 SE2d 885) (1994). This conclusion is not changed by the fact that Barbara Jenkins took the marijuana into the house before he could seize it. “An arrest in a private home based on ‘hot pursuit’ is a lawful arrest when a suspect, as to whom police have probable cause, attempts to escape into the house. [Cits.]” State v. Brown, 212 Ga. App. 800, 801 (1) (442 SE2d 818) (1994). The officer was also entitled to search Barbara Jenkins’ person and immediate presence pursuant to the arrest. OCGA § 17-5-1; Burroughs v. State, 190 Ga. App. 467, 472 (2) (d) (379 SE2d 175) (1989). The arrest of Barbara Jenkins and the seizure of the marijuana she was holding were therefore valid.

Decided November 6, 1996.

Douglas R. Daum, for appellants.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

2. The Jenkinses contend that, even if the officer was authorized to arrest Barbara Jenkins and seize the marijuana, there were no exigent circumstances justifying the warrantless search of the entire house. Instead, they contend, the officers were authorized to search only the area within Barbara Jenkins’ reach and to seize items in plain view only in the room in which she was arrested. The Jenkinses also contend the state failed to prove Lillie Mae Jenkins consented to a search of the house.

Once the first officer validly entered the house to arrest Barbara Jenkins, he and the officers with him were authorized to ensure their own safety and prevent the destruction of evidence by conducting a limited search of the entire house for other occupants; they were also authorized to seize the cocaine they found in plain view during this “securing” of the house. State v. Camp, 175 Ga. App. 591, 594 (2) (333 SE2d 896) (1985). It is therefore not necessary to decide whether there was sufficient evidence that Lillie Mae Jenkins consented to a search.

Judgment affirmed.

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


text:
    A96A2444.
    SLEDGE v. THE STATE.
    (477 SE2d 898)
   McMurray, Presiding Judge.

Defendant Sledge appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. Held'.

1. The State’s first witness was a confidential informant, a convicted felon who earned money by making drug purchases on behalf of law enforcement officers. This witness testified that after a planned drug purchase did not materialize, he was walking home when he saw defendant drive by. The witness testified with reference to defendant that “we had him in the list where he could have been bought from. I was told if I seen him and I could make a purchase, make one.” Defendant moved for a mistrial arguing that this testimony placed his character in issue because it implied that he had been involved in previous drug buys. However, we find no error in the denial of defendant’s motion for mistrial inasmuch as the evidence explained the circumstances leading to defendant’s arrest. Carson v. State, 208 Ga. App. 534, 535 (4) (431 SE2d 156).

2. Contrary to defendant’s ássertion, there is nothing in OCGA § 35-3-16 which prohibits the State utilizing laboratories other than those operated by the Division of Forensic Sciences of the Georgia Bureau of Investigation. In the case sub judice, the cocaine was tested at a laboratory operated by the Drug Enforcement Administration (DEA) in Miami, Florida. A senior forensic chemist from the DEA facility, who did the testing and chemical analysis of the cocaine in the case sub judice, testified as to the testing procedures and results. There was no attempt by the State to use a certificate of results as described in OCGA § 35-3-16 (b). The procedures of OCGA § 35-3-16 provided a procedural route for avoiding routine courtroom appearances by laboratory staff under specified circumstances. In view of the permissive language of the statute, use of this procedure was not mandatory. We must also note that subsequent to the trial in this case the Supreme Court of Georgia held OCGA § 35-3-16 to be unconstitutional as violating the “Confrontation Clause.” Miller v. State, 266 Ga. 850 (472 SE2d 74). The trial court did not err in permitting the DEA chemist to testify.

3. The trial court did not err in permitting the State to play an audiotape as part of its case in chief even though the tape had not been furnished to defense counsel ten days prior to trial in compliance with OCGA § 17-16-1 et seq. Defendant filed a timely written election to proceed under the provisions of OCGA § 17-16-1 et seq. Defense counsel was told of the existence of the audiotape of the drug buy transaction between the defendant and the confidential informant but was not allowed to hear the tape, and instead was told by the prosecuting attorney that the tape would not be used at trial.

When the trial date arrived, circumstances had changed and the prosecuting attorney made known his intention to present the tape. Defense counsel objected, noting both the failure of the prosecuting attorney to permit inspection of the tape ten days prior to trial and the representations that it would not be used. The trial court ordered the prosecuting attorney to play the tape for defense counsel and then permitted an opportunity for the defense attorney to state for the record any prejudice arising from the delay in making the tape available. Since defense counsel was unable to state any harm from the delay in permitting access to this evidence, the trial court did not err in refusing to exclude the tape from evidence at trial. OCGA § 17-16-6; Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696).

Decided November 6, 1996.

Nancy A. Askew, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney,.for appellee.

4. The trial court did not err in allowing the jury to rehear the audiotape upon their request and after deliberations had begun. It is well settled that a trial court has discretion to permit a jury to rehear parts of the evidence presented even after deliberations have begun. Payne v. State, 219 Ga. App. 318 (464 SE2d 884); Barnett v. State, 204 Ga. App. 588 (420 SE2d 96).

While defense counsel complains that the recording was more easily understood during the replay than during the original presentation of the tape, there was no evidence of tampering and the only explanation suggested on the record for any difference in sound quality is that the original presentation of the tape was channeled through the trial court’s public address system and the replay was not. These circumstances are not sufficient to curtail the trial court’s discretion under the general rule. We find no abuse of the trial court’s discretion by permitting the replay of the audiotape.

5. Defendant’s final enumeration of error questions the sufficiency of the evidence to authorize his conviction. When viewed in the light most favorable to upholding the jury’s verdict, the evidence at trial shows that defendant provided cocaine to the State’s confidential informant in exchange for money. While defendant denies that such an exchange occurred, the credibility questions thereby created are for jury determination. The evidence was sufficient to authorize a rational jury to conclude that defendant was guilty beyond a reasonable doubt of selling cocaine, as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ferguson v. State, 221 Ga. App. 415, 419 (2) (471 SE2d 528).

Judgment affirmed.

Johnson, J, concurs. Ruffin, J., concurs in the judgment only.


text:
    A96A2536.
    STERLING v. THE STATE.
    (478 SE2d 145)
   McMurray, Presiding Judge.

Defendant Sterling appeals his conviction of two counts of aggravated assault. The sole enumeration of error maintains that defendant was denied effective assistance of counsel. Held:

Decided November 6, 1996.

Rees R. Smith, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

However, defendant’s trial counsel was not heard on this issue at the motion for new trial hearing, and for this reason, there is nothing for us to address on appeal. Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40); Brown v. State, 251 Ga. 598, 600 (3), 601 (308 SE2d 182); Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288); Query v. State, 217 Ga. App. 61, 65 (7) (456 SE2d 704).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A97A0164.
    COLES v. THE STATE.
    (477 SE2d 897)
   McMurray, Presiding Judge.

Defendant Chester Coles was tried before a jury and on June 3, 1983, was found guilty of one count of murder and one count of violating OCGA § 16-11-131, possession of a firearm by a convicted felon. On direct appeal, his convictions were affirmed by the Supreme Court of Georgia. Coles v. State, 253 Ga. 12 (315 SE2d 655). On April 24, 1996, defendant, proceeding as a pauper, filed a pro se motion asking that the respondent Juanita Hicks, Clerk of the Superior Court of Fulton County, be required to furnish and produce “at government expense a true and correct copy of Defendant’s trial transcript. . . .” The motion recites that a transcript is “Necessary in order to obtain habeas corpus relief from the judgment of conviction and sentence,” even though “a transcript of the trial of Defendant’s case was supplied to Defendant’s counsel in connection with the representation of Defendant in the appeal.” The motion alleges' that “counsel has neglected and otherwise failed to provide defendant with a copy of same.” On May 8, 1996, after a hearing, the superior court judge denied defendant’s motion for a trial transcript at government expense. On May 9, 1996, a separate order denying defendant’s .motion for transcript was entered by the superior court judge (npw a senior superior court judge), who had presided over defendant’s trial in 1983. On June 13, 1996, defendant filed a “Motion for Reconsideration,” and amended his original motion to show “the grounds he intends to raise in the habeas corpus proceeding [which] cannot be adjudicated without the transcript in question. . . .” Also on June 13, 1996, however, defendant filed a notice of appeal from the May 9, 1996, order of the senior superior court judge. Held:

1. We treat this defendant’s post-conviction motion for a trial transcript at government expense, directed to the Clerk of-the Superior Court of Fulton County as a petition in the nature of mandamus, the denial of which is generally directly appealable. OCGA § 5-6-34 (a) (6). See, e.g., Shelby v. McDaniel, 266 Ga. 215 (465 SE2d 433); Rogers v. Wood, 263 Ga. 568 (436 SE2d 495). Compare OCGA § 42-12-1 et seq., the Prison Litigation Reform Act of 1996. OCGA § 42-12-8 mandates the use of the discretionary appeal procedures established by OCGA § 5-6-35 for appeals in all civil actions filed by indigent prisoners. A prisoner is any person 17 years of age or older who has been convicted of a crime and is currently incarcerated or is being held in custody awaiting trial or sentencing. OCGA § 42-12-3 (4). Henceforth, if no petition for habeas corpus is pending at the time an indigent prisoner makes any application for a transcript of his trial for purposes of collateral attack upon his conviction or sentence, that application will be treated as a separate civil action subject to the procedures and requirements of the Prison Litigation Reform Act of 1996. Specifically, appeals from the denial of any such applications for free transcripts for post-conviction collateral attack must comply with the discretionary appeal procedures of OCGA § 5-6-35. Compare OCGA § 42-12-3 (1) (A).

2. “ ‘(I)t is the duty of this [Cjourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. (Cits.)’ Stephenson v. Futch, 213 Ga. 247 (1) (98 SE2d 374). (1957). ‘The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. (Cit.)’ Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978).” (Emphasis omitted.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756). “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-38 (a). See also OCGA § 5-6-35 (d).

Pretermitting whether the Court of Appeals of Georgia has appellate subject matter jurisdiction over an appeal involving mandamus, we hold that the notice of appeal in the case sub judice, entered on Thursday, June 13, 1996, from a judgment or order entered by the superior court judge on Wednesday, May 8, 1996, or the order entered by the senior superior court judge on Thursday, May 9, 1996, refusing defendant’s application for mandamus, is not timely in that it was not filed within 30 days of the judgment complained of on appeal. “In the absence of a timely filed notice of appeal, or the grant of an out-of-time appeal, this [C]ourt is without jurisdiction to consider the merits of the case, and the appeal [in the case sub judice] must be dismissed.” Gibson v. State, 207 Ga. App. 491 (428 SE2d 421).

Decided November 6, 1996.

Chester Coles, pro se.

Lewis R. Slaton, District Attorney, for appellee.

Appeal dismissed.

Beasley, C. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A96A1637.
    HILL v. THE STATE.
    (478 SE2d 406)
   Andrews, Judge.

Robert Lee Hill was found guilty by a jury of operating a motor vehicle after receiving notice that his license was revoked as a habitual violator, driving a. motor vehicle under the influence of alcohol, and possession of less than one ounce of marijuana. Hill appeals from the judgment entered on the convictions and enumerates as error that: (1) the evidence was insufficient to support the convictions; (2) documentary evidence was erroneously admitted without proper authentication and (3) the trial court erred by refusing to declare a mistrial because his character was improperly placed into issue. We affirm the habitual violator and DUI convictions and reverse the conviction for possession of marijuana.

1. The evidence was sufficient to support a verdict of guilty on the charge of driving while under the influence of alcohol to the extent that it was less safe to drive pursuant to OCGA § 40-6-391 (a) (1) and on the habitual violator charge pursuant to OCGA § 40-5-5.8 (c).

An Oconee County deputy sheriff testified for the State that he observed a car erratically passing other vehicles and changing lanes on Highway 78 at a high rate of speed. He stopped the car, approached, and asked the driver for his license. Hill, who was driving the car, could not produce a license and gave the deputy a false name and date of birth. Observing that Hill’s eyes were red and his speech was slurred, the deputy asked Hill to step out of the car, and, upon doing so, Hill almost fell down and had to be held up by the deputy. Based on clear indications; that Hill was under the influence of alcohol and on his inability to successfully complete two field sobriety tests at the scene, the deputy arrested Hill and charged him with driving under the influence of alcohol. The deputy testified that Hill appeared to be under the influence of alcohol to the extent that he was incapable of safely driving the car. This was ample evidence to allow a rational trier of fact to. conclude beyond a reasonable doubt that Hill was guilty of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 214 Ga. App. 830 (449 SE2d 535) (1994).

As to the habitual violator charge, the State introduced certified copies of records of the Department of Public Safety showing that, at the time Hill was driving the car, he had been declared a habitual violator, had his license revoked, and had received notice that his license was revoked because of his status as a habitual violator. OCGA § 40-5-58 (b), (c). This was sufficient evidence to establish the essential elements of the offense and to allow the jury to find Hill guilty beyond a reasonable doubt. Jackson v. Virginia, supra; Ragan v. State, 264 Ga. 190, 191 (442 SE2d 750) (1994). There is no merit to Hill’s claim that the document relied upon by the State to establish Hill received notice that his license had been revoked was not properly authenticated. The document, which shows on its face that Hill was personally served with notice that his license had been revoked because of his status as a habitual violator, was certified by the official custodian of the Department of Public Safety records. Thus, it was properly authenticated and admissible as primary evidence. OCGA §§ 24-3-17 (a), 24-5-20, 24-7-20; Funderburk v. State, 221 Ga. App. 438, 439-440 (471 SE2d 535) (1996).

2. Hill contends his motion for a mistrial should have been granted because his character was improperly placed into issue. While cross-examining the arresting deputy, defense counsel asked a series of leading questions implying that, even though Hill gave the deputy a false name, the deputy knew Hill’s real name when he wrote tickets in the false name,' then later wrote a report using Hill’s real name. In reply, the deputy explained that he did not know Hill’s real name when Hill gave the false name, but he later discovered Hill’s real name when he saw another ticket Hill had which showed he had been recently arrested for the same offense.

The deputy’s explanation as to when and how he discovered Hill’s true name was responsive to questions posed by defense counsel. Since the deputy’s statement about a previous offense came in responsive testimony elicited by defense counsel, any error was induced and Hill cannot complain. Adside v. State, 216 Ga. App. 129, 131 (453 SE2d 139) (1995). Moreover, the trial court’s precautionary instruction to the jury was sufficient to cure any error. Id. The trial court properly denied Hill’s motion for a mistrial.

3. The State also produced evidence that, in a search of Hill incident to the arrest, what appeared to be a marijuana cigarette was found on his person. The cigarette was tested at the State Crime Lab. In lieu of testimony from the Crime Lab employee who did the testing, the State introduced a sworn certificate from the employee pursuant to OCGA § 35-3-16 attesting that the cigarette tested positive for less than one ounce of marijuana. The trial court admitted the certificate for this purpose over Hill’s objection that use of the certificate violated his constitutional right to confront the witnesses against him.

Decided November 7, 1996.

Anthony T. Pete, David T. Wooten, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Subsequent to Hill’s trial, the Georgia Supreme Court found that OCGA § 35-3-16 was unconstitutional because use of the certificate in lieu of the witness’ testimony allowed the State to rely on hearsay evidence in violation of a defendant’s right to confront and cross-examine the State’s witnesses. Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996). Because the State relied on the certificate admitted pursuant to OCGA § 35-3-16 to prove that Hill possessed marijuana, his conviction on that charge is reversed. Id.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.