text:
    A90A1722.
    NICELY v. THE STATE.
    (397 SE2d 630)
   Deen, Presiding Judge.

John Wesley Nicely was convicted of the sale of a controlled substance (cocaine), and he appeals following the denial of his motion for a new trial.

1. The trial court did not restrict cross-examination of the State Crime Laboratory witness. The trial transcript shows that appellant was permitted a thorough and sifting cross-examination of the witness. The State objected to one of appellant’s questions to the witness as to whether the police officer gave the witness other items at the time she gave him an item allegedly sold by the defendant. The objection was overruled, and cross-examination on this issue continued. No objection was raised when the witness was excused. There is no merit in this enumeration.

2. Appellant claims that the court erred in failing to enforce his subpoena, which was served on the crime lab expert witness requiring him to appear at the hearing on the defendant’s extraordinary motion for a new trial because he had newly discovered evidence. One Grady Thomas had apparently been arrested for the sale of a small amount of cocaine during the same month as the defendant, and the same agents were involved in Thomas’ arrest. Appellant contends that there was a mix-up or confusion between the two arrests and the evidence that was seized, and that he was unable to present this defense.

The trial evidence showed that the same confidential informant was used for both arrests, and one of the undercover agents was cross-examined about other drug deals made at or about the time that the defendant allegedly committed the crime in question. The second agent in the case was not cross-examined about possible misidentification of the defendant with other drug sales and purchases utilizing the same confidential informant. As the defendant failed to pursue a line of questioning at trial as to the possible confusion between himself and another defendant when there was evidence that the agents in question had made several transactions using the same informant at or about the time of the transaction involving the defendant, he waived any right to raise it again later at the hearing on the motion for a new trial. The State Crime Laboratory witness was cross-examined at trial about receiving other evidence contemporaneously with the evidence in the defendant’s case and could not recall whether he received any or not. At trial, a defense witness inserted the name Grady Thomas into the evidence and testified as to the circumstances surrounding Thomas’s arrest. By choosing to disregard this possible defense at trial, the defendant cannot now claim that it was newly discovered evidence. Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

Decided October 9, 1990.

Watson & Watson, Anne L. Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Raymond E. George, Assistant District Attorneys, for appellee.

3. As appellant failed to raise any objection at trial to bench conferences not being recorded by the court reporter, he cannot raise this issue for the first time on appeal. McCounly v. State, 191 Ga. App. 266 (381 SE2d 552) (1989).

Judgment affirmed.

Pope and Beasley, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A1545.
    BRYAN v. THE STATE.
    (398 SE2d 230)
   Banke, Presiding Judge.

At the conclusion of a bench trial at which the parties simply stipulated to the evidence which had been adduced at an earlier motion to suppress hearing, the appellant was found guilty of violating the Controlled Substances Act by possessing lysergic acid diethylamide with intent to distribute. Her sole enumeration of error on appeal is directed to the denial of the motion to suppress.

The contraband was discovered and seized by an off-duty, uniformed Atlanta police officer who was working as a security officer during a rock concert at the Omni. The officer was positioned alongside the ticket taker and was asking each entrant carrying a bag or purse to open it so that he could check to see whether it contained a camera or alcoholic beverages, which are prohibited at such events. As the appellant surrendered her ticket, the officer asked her if she “could please open her [hand]bag,” and she complied. He thereupon observed two clear plastic bags containing the contraband and placed her under arrest. Held:

Whether there is a valid consent to search is a matter exclusively within the province of the factfinder, the trial court. “Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal.” Dean v. State, 250 Ga. 77, 80 (295 SE2d 306) (1982). The evidence was sufficient to enable the trial court to conclude that the appellant’s consent was freely and voluntarily given.

Decided September 27, 1990.

Kane & Anderson, Daniel B. Kane, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, A. Thomas Jones, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1842.
    ELKINS v. THE STATE.
    (398 SE2d 241)
   McMurray, Presiding Judge.

Defendant Bernice Elkins was convicted of voluntary manslaughter and sentenced to serve 12 years in confinement. She appeals, enumerating error upon the general grounds. Held:

Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following:

On February 17, 1989, defendant was sitting in a booth at a lounge with her friend, Geraldine Frazier. The victim, acting as if he had had something to “drink,” approached defendant and her friend and offered to buy them drinks. They refused and the victim left. He returned and attempted to engage the ladies in conversation. Ms. Frazier would not permit the victim to sit next to her so he sat next to defendant. When defendant said something to the victim, he slapped or hit her across the face and bloodied her nose. Then the victim left the booth and joined other customers near a jukebox. The victim was laughing with the other customers and defendant became angry. Defendant and the victim “got to arguing” and thereafter, defendant lashed out at the victim, swinging a knife at his back which may have put a small hole in the victim’s coat. Then, defendant approached the victim and stabbed him in the chest. The victim, who was not armed, died from the wound inflicted by defendant. The entire incident took place within a matter of minutes. Defendant admitted that she “probably could have” left the bar after the victim struck her, however, she chose not to do so.

The evidence was sufficient to enable a rational trier of fact to find the elements of voluntary manslaughter beyond a reasonable doubt. Watkins v. State, 191 Ga. App. 325 (1), 326 (382 SE2d 107). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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

Decided October 9, 1990.

John W. Davis, for appellant.

Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    A90A1861.
    WILLIAMS v. TERRY et al.
    (398 SE2d 239)
   Deen, Presiding Judge.

Lurner O. Williams brought a medical malpractice lawsuit against Dr. Daniel B. Terry, Jr., and the Hospital Authority of Ware County, d/b/a Memorial Hospital of Waycross, alleging that the defendants negligently left a surgical sponge in his abdomen during a 1979 operation. The jury verdict was in favor of the defendants, and Williams appeals.

1. Williams contends that the trial court erroneously excluded the deposition testimony of his expert witness as to the lack of necessity for the surgery, and his opinion as to the improper operative procedure taken by the defendants which caused massive bleeding.

Any claim of negligent performance of the 1979 surgery was barred by a two-year statute of limitation. OCGA § 9-3-71. This statute of limitation, however, does not apply where a surgeon negligently leaves a foreign object in a patient’s body, so long as the object remains undetected. In such a case, an action must be brought within one year after the date of discovery. OCGA § 9-3-72, Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490) (1988). Williams’ action on this claim was timely filed.

Prior to trial, at the hearing on the motion in limine, Williams contended that the purpose of submitting the excluded testimony was to rebut either any defense that the surgery was an emergency or that exigencies arose during the course of surgery which may have caused the sponge to be left in Williams’ abdomen. The only testimony which raised the anticipated defenses was Dr. Terry’s testimony that six doctors were called in to save Williams’ life, and that the surgery took three hours to perform. This testimony, however, was introduced only to rebut the plaintiff’s testimony that he was not given the “standards of care exercised on a healthy person” because he was handicapped and confined to a wheelchair.

The admission of evidence is discretionary with the trial court, and this court will not interfere with that court’s ruling absent abuse. Gully v. Glover, 190 Ga. App. 238, 242 (378 SE2d 411) (1989); Palmer v. State, 186 Ga. App. 892, 898 (369 SE2d 38) (1988). As this testimony was elicited solely to respond to plaintiffs contention that he did not receive acceptable medical care because he was handicapped, we find no abuse of the trial court’s discretion in disallowing the complained-of portion of the expert witness’ testimony.

2. Williams’ claim that the trial court’s offer of the verdict form to defense counsel during closing argument constituted an expression of opinion in favor of the defendants is totally without merit.

Both counsel were present prior to closing argument when the court offered the verdict form to defense counsel so that it could be used during argument to the jury. Plaintiff’s counsel raised no objection and presumably was being offered the same opportunity to use it if he so chose. During the jury charge, the trial court instructed the jury as to all parts of the verdict form. There was absolutely no indication that the trial court was approving the defendants’ case. Moreover, failure of the plaintiff to object when the court first offered the form to counsel does not preserve a reviewable issue for this court’s consideration. The party asserting error has the duty to raise a timely objection or he waives the right to have the asserted error reviewed on appeal. Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268) (1989).

3. Appellant further contends that the lower court erred in failing to rebuke defense counsel, and in not giving curative instruction after he objected to defense counsel’s argument pertaining to medical records which had not been introduced into evidence.

The transcript shows that the court sustained the plaintiff’s objection and noted that “the jury knew that they’re not admissible because they saw the court refuse to admit them. Now that’s enough of that.” No request for curative instructions or rebuke of counsel was made. “[I]t is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike, or denied request for curative instructions.” Carver v. State, 185 Ga. App. 436, 438 (364 SE2d 877) (1987). There is therefore no merit in this enumeration.

4. Appellant also asserts the general grounds. It is well-established that “ ‘an appellate court is without jurisdiction or authority to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence.’ [Cit.]” Target Properties v. Gilbert, 192 Ga. App. 161, 162 (384 SE2d 188) (1989). On appeal, the evidence is viewed in the light most favorable to the jury verdict. Ackerman/Adair Realty Co. v. Coppedge, 155 Ga. App. 903, 907 (273 SE2d 645) (1980).

The evidence showed appellant was crushed against his garage wall by a runaway vehicle in October of 1979. He was admitted to Memorial Hospital of Waycross where he was treated for broken bones and internal injuries. Two days later, Dr. Terry performed exploratory surgery to determine the source of internal bleeding. In 1985 appellant began to experience stomach pains, and two years later his problem was diagnosed as the presence of a foreign object in the abdominal cavity. A fibrous tumor attached to the walls of the small intestine was surgically removed in November of 1987. Inside the tumor was a large surgical gauze. Trial testimony showed that the sponge which was found in the right lower quadrant of plaintiff’s abdomen was not near the operative field of Dr. Terry’s 1979 surgery. The plaintiff’s expert witness agreed that it would not have been possible for the sponge to have moved from one side of the abdomen to the other. Dr. Terry testified that as there was no bleeding in the area where the sponge was later located, his operative field would not have included that area of the abdomen. The medical records indicated that all the sponges used during the surgery were accounted for by the surgical team. Appellant admitted that he had undergone kidney and hernia surgery prior to the exploratory surgery. We find that the evidence is sufficient to sustain the jury verdict.

Decided October 9, 1990.

Wilkes, Johnson & Smith, Ken W. Smith, for appellant.

Terry A. Dillard, Bryant H. Bower, Jr., for appellees.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0800.
    BELL v. CORONET INSURANCE COMPANY.
    (398 SE2d 242)
   McMurray, Presiding Judge.

On February 29, 1988, plaintiff James Bell brought suit against Rhonda Kay Prohaska and Forest M. Prohaska alleging he was injured in an automobile collision as a direct and proximate result of defendants’ negligence. Defendants were served with a copy of the complaint and summons. Answering the complaint, defendants denied they were liable to plaintiff.

Although it was not named as a party defendant, Coronet Insurance Company (“Coronet”) was also served with a copy of the complaint and summons. Before Coronet answered the complaint, however, plaintiff filed a dismissal without prejudice with regard to Coronet (which plaintiff therein designated as the uninsured motorist carrier).

Thereafter, plaintiff amended his complaint, named John Doe as an additional party defendant, and alleged that the negligence of Doe contributed to his injuries. Coronet answered the complaint as plaintiff’s uninsured motorist carrier and denied that plaintiff’s injuries re-suited from negligence on the part of any John Doe motorist.

Following discovery, on August 11,1989, Coronet moved for summary judgment. In support of its summary judgment motion, Coronet directed attention to plaintiff’s deposition and answers to interrogatories. Therein, plaintiff stated that the collision was caused by defendant Rhonda Kay Prohaska’s negligence. With regard to a John Doe motorist, plaintiff deposed in his deposition that he himself did not see one, but added that immediately following the collision defendant Rhonda Kay Prohaska made reference to such a motorist: “[A]t the time of impact ... I pulled my — immediately pulled my vehicle over out of the traffic. And I got out and hit my hood and that’s when she said — she came back and said, ‘Did you see what that bastard did to me?’ And I said, ‘Who?’ And she said, ‘That burgundy’ . . . LTD. Well, when I looked up, I saw cars going everywhere up North-crest and she said that’s the way the car went ... I didn’t see any vehicle cut in front of her, you know.”

Plaintiff responded to Coronet’s motion for summary judgment on September 6, 1989. Neither party sought a hearing upon the motion. Subsequently, on November 22, 1989, Coronet submitted a letter brief and another deposition of plaintiff (actually a continuation of plaintiff’s deposition taken after Coronet moved for summary judgment) to the superior court. That day, the superior court granted Coronet’s motion for summary judgment. This appeal followed. Held:

1. In pertinent part, OCGA § 33-7-11 (b) (2) provides: “[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.”

“By its plain terms, the statute [OCGA § 33-7-11 (b) (2)] applies only when there is a claim that the accident was caused by an unknown or ‘phantom’ vehicle. It imposes two requirements for recovery under an uninsured motorist endorsement when there is no physical contact between the claimant’s vehicle and one operated by an unknown person. The first requirement is ‘a description by the claimant of how the occurrence occurred.’ Because the statute addresses only those situations in which the claim is that the accident was caused by an unknown vehicle, it is beyond question that the ‘description’ required by the claimant must at least include such an unknown vehicle. The second requirement is that the description must be corroborated by an eyewitness other than the claimant. This can be read only as requiring that such description be corroborated in its material al legation, i.e., implication of the unidentified vehicle, for that is the subject addressed by the statute.” Hoffman v. Doe, 191 Ga. App. 319, 320, 321 (381 SE2d 546).

Decided October 10, 1990.

Daniel T. Donohue, for appellant.

Lane, O’Brien & Coburn, Stephen J. Caswell, Harper, Waldon & Craig, Russell D. Waldon, for appellee.

In the case sub judice, as in Hoffman v. Doe, 191 Ga. App. 319, supra, plaintiff did not include a “phantom” vehicle in his description of the accident. In fact, by his own admission, he saw no such vehicle. Accordingly, plaintiff was not entitled to uninsured motorist coverage under OCGA § 33-7-11 (b) (2) and the superior court did not err in granting Coronet’s motion for summary judgment. Compare Maxwell v. State Farm &c. Ins. Co., 196 Ga. App. 545 (396 SE2d 291).

2. Plaintiff contends the superior court erred in granting Coronet’s motion for summary judgment because he was not afforded an opportunity to respond to the filing of plaintiff’s second deposition before the court made its ruling. We decline to accept this contention. In support of its summary judgment motion, Coronet submitted plaintiff’s answers to interrogatories and plaintiff’s first deposition. That evidence alone made a prima facie case for Coronet. Responding to Coronet’s motion, plaintiff failed to set forth specific facts showing a genuine issue of material fact for trial. Thus, Coronet was entitled to summary judgment even before the second deposition was submitted. See OCGA § 9-11-56 (e). The second deposition of plaintiff, submitted by Coronet, did not really add anything to Coronet’s case. In the second deposition, plaintiff simply reiterated his previous testimony, making it clear that he did not see a “phantom” vehicle. Given these circumstances, we fail to see how plaintiff was harmed by the submission of the second deposition just prior to the superior court’s ruling. After all, plaintiff “has made ‘no claim that there would have been any addition to the record or that a hearing would have changed the state of the record in any way.’ [Cit.]” Sentry Ins. v. Echols, 174 Ga. App. 541 (1), 542 (330 SE2d 725). Thus, even if the superior court erred in failing to afford plaintiff an opportunity to respond to the submission of the second deposition, such an error was harmless. Sentry Ins. v. Echols, 174 Ga. App. 541 (1), supra.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A0890.
    SIMS v. THE STATE.
    (398 SE2d 244)
   Cooper, Judge.

Appellant was convicted of armed robbery and appeals from the denial of his motion for new trial.

Viewing the evidence in this case in the light most favorable to the jury’s verdict, the evidence shows that appellant entered a convenience store and pointed a shotgun at the victim, ordering that he be quiet and go back into the office. Appellant demanded the money on a desk which the victim had been readying for deposit. The victim placed the money in a paper bag and was instructed by appellant to lie on the floor. When he heard the door close, the victim went to the window and saw appellant fleeing in a 1987 or 1988 blue four-door Oldsmobile. The victim and another employee were able to get the license number which they reported to the police. The police placed a lookout for the vehicle, and within 20 to 25 minutes of the robbery, the vehicle was spotted traveling north on Interstate 85. Appellant was arrested, and a search of the car revealed a brown paper bag containing a large bundle of cash and a red baseball cap, which the victim testified appellant wore during the robbery. The shotgun was not found in the car; however, the following day, a truck driver discovered a sawed-off shotgun on the shoulder of 1-85 approximately 24 miles north of the store. While in custody, appellant confessed to committing the robbery but stated that he used a pipe, which he claimed he threw from the car. At trial, appellant admitted that his statement that he used a pipe to commit the robbery was false and further admitted that he did have a shotgun during the robbery.

1. Appellant enumerates as error the trial court’s denial of his motion to suppress and the admission of the shotgun as evidence at trial. Appellant argues that because the victim could not confirm that the shotgun recovered by the police was in fact the same weapon appellant held on him, it should have been excluded from the evidence because its admission unduly influenced the jury and prejudiced him. We disagree. The record reveals that although Mitchell was not sure that the shotgun was the actual gun appellant used during the robbery, he testified that it looked “familiar,” and he was certain that appellant was holding a shotgun and not a pipe. Appellant admitted throwing a pipe from the car while fleeing the robbery, and a shotgun was discovered on the shoulder of the road on which appellant was arrested. “Under these facts, the trial court properly admitted the [shotgun] into evidence. As long as the state presents sufficient evidence from which a rational trier of fact could conclude that the robbery was committed with the use of a [shotgun], it makes no material difference whether the [shotgun] actually admitted into evidence was the one actually used or was only similar to the [shotgun] used by the defendant. [Cit.]” Carswell v. State, 163 Ga. App. 743 (2) (295 SE2d 548) (1982). In addition, the evidence adduced at trial relative to the identification of the shotgun was sufficient to authorize the jury to decide whether or not it was the weapon used by appellant. See Holloway v. State, 190 Ga. App. 528 (3) (379 SE2d 542) (1989). Accordingly, we find no error in the admission of the shotgun.

2. Appellant contends the trial court erred in denying his motion to suppress the red baseball cap and paper bag containing bundled money taken from appellant’s car. When appellant was stopped, he was ordered from the vehicle, handcuffed and placed in a patrol car. With appellant secure in the patrol car, the police searched the vehicle. Appellant urges that the warrantless search of his car was unreasonable due to the fact that he had already been handcuffed and was no longer in the car.

“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981). This court has held that “a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted.” State v. Watkins, 182 Ga. App. 431, 432 (356 SE2d 82) (1987). “The decisive factor is whether the arrestee was, at the time of his arrest, a ‘recent occupant’ of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.” State v. Hopkins, 163 Ga. App. 141 (2) (293 SE2d 529) (1982). Appellant was the subject of a lawful custodial arrest, and the search of his vehicle immediately followed the arrest. Thus, the search was valid and the trial court did not err in admitting the evidence. See State v. Tinsley, 194 Ga. App. 350 (1) (390 SE2d 289) (1990).

3. Appellant contends, in his third and fourth enumerations of error, that his out-of-court statements to police were made with fear of personal injury and without the advice of his Miranda rights and therefore were erroneously admitted at trial as voluntarily made. At a Jackson-Denno hearing prior to trial, Sgt. Camp, who transported appellant to jail following his arrest, testified that before placing appellant in his patrol car he read appellant his Miranda rights from a card. While en route, appellant volunteered that he did not have a gun but that he had a pipe. Appellant claimed that in the patrol car, Camp said that appellant was going to be asked questions at the jail and if appellant failed to answer, Camp would “blow his brains out.” Appellant insists that this threat tainted subsequent statements made while in custody. Camp and Investigator Allen testified that when appellant arrived at the jail, Allen re-administered the Miranda rights. Appellant signed a waiver of rights certificate and provided a written statement in which he admitted committing the robbery with a pipe and throwing the pipe out the car window on the highway. Allen’s handwritten report of his interview with appellant as well as the appellant’s written waiver and statement were admitted into evidence. Appellant contends he was subjected to “torture tactics designed to overpower the will of a suspect who was otherwise determined to remain silent.” He testified that initially he refused to make a statement and requested counsel; however, facing the prospect of being detained for 72 hours, not being allowed to phone his family or counsel, he relented signing the waiver and giving the statement. Appellant said his interrogation took place in a small room and that Camp was present throughout. Appellant was told that his was “an open and shut case.” Both Camp and Allen denied that appellant displayed a desire to remain silent or requested an attorney.

“ ‘Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a [Jackson-Denno] hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. [Cit.]’ [Cit.]” Washington v. State, 192 Ga. App. 678, 680 (385 SE2d 767) (1989). “Considering the totality of the circumstances, we find that the trial court’s determination was not clearly erroneous, and that there was no error in the admission of the statement[s].” Robinson v. State, 194 Ga. App. 432 (2) (390 SE2d 652) (1990).

In addition, appellant argues that he gave his statement based on representations by Allen of possible benefit to be gained if the district attorney were informed of his cooperation. Allen testified that it is routine to inform a suspect that “their cooperation would be noted and it would be left up to the D.A. and the Judge as far as the outcome.” He insisted that no promises were made but explained that the district attorney could negotiate a guilty plea for less than the maximum sentence. OCGA § 24-3-50 provides that a confession is not admissible unless it was made voluntarily, “without being induced by another by the slightest hope of benefit or remotest fear of injury.” “Offering to make known a suspect’s confession to the district attorney and the trial judge is not an offer of benefit. [Cit.]” McKenzie v. State, 187 Ga. App. 840 (4) (371 SE2d 869) (1988). Enumerations of error 3 and 4 are without merit.

4. In his fifth enumeration of error, appellant contends the trial court’s remarks to the jury at the close of the evidence deprived him of due process and negated his right to a fair trial. The record reveals that due to the lateness of the hour before moving to closing arguments and the jury charge, the trial court inquired of the jury whether or not it wished to proceed or come back the following day. The court stated that if they were to continue, argument and the charge could be completed by 6:00 p.m., and the jury could take the next day off and return the following day. Appellant contends that by its remarks, the trial court implied that it believed the issues in the case could be easily decided and encouraged hasty decision making. It appears appellant misunderstood the trial court’s attempt to consider the jury’s welfare; however, the record fails to show a timely objection to the court’s remarks. Accordingly, this contention will not now be considered on appeal. See Foushi v. State, 144 Ga. App. 608 (3) (244 SE2d 14) (1978).

5. Appellant urges the charge to the jury was defective because the trial court did not instruct on the lesser included offenses, robbery, theft by taking and theft by deception. Although both robbery and theft by taking have been held to be lesser included offenses of armed robbery, it is not necessary to charge on the lesser included offenses where the evidence demonstrates completion of the greater offense. Hambrick v. State, 174 Ga. App. 444 (2) (330 SE2d 383) (1985). The evidence clearly supported the trial court’s charge and appellants’ conviction. Thus, the trial court did not err in refusing to charge robbery and theft by taking.

“ ‘It is a basic law that a defendant in a criminal case is entitled to have the jury consider every lesser offense which the evidence authorizes which is includable in the crime for which he was indicted.’ [Cits.] ‘A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.’ [Cit.]” Dickson v. State, 167 Ga. App. 685 (2) (307 SE2d 267) (1983). Appellant contends that theft by deception is a lesser included offense of armed robbery and as such should have been charged based on appellant’s testimony that he committed the robbery as a part of a scheme allegedly devised by two former employees of the store’s parent company to defraud the parent company and its shareholders. In Moore v. State, 140 Ga. App. 824 (2) (232 SE2d 264) (1976), we held that neither burglary nor attempted armed robbery was a lesser included offense of the other. The reasoning in that case applies equally well to the facts in this case. “The statutory definition[s] of [theft by deception and armed robbery] make it clear that the Georgia legislature also intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by the same proof of all the facts . . . [N] either crime is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict under the statutes” Id. at 827. Accordingly, inasmuch as this trial followed an indictment for armed robbery, the court did not err in omitting appellant’s request to charge on theft by deception.

Decided October 10, 1990

Daniel, Hadden & Leonard, Wesley T. Leonard, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

6. Appellant asserts that the trial court erroneously failed to charge the jury that evidence which merely raises a suspicion of guilt is an insufficient basis for conviction and that appellant’s testimony had the same evidentiary value as other testimony. We disagree. A review of the charges in their entirety reveals that the principles contained in the requested charges were sufficiently covered by the court’s instructions on reasonable doubt, burden of proof, appellant’s competence as a witness and the credibility of witnesses. “[I]t is unnecessary to give the precise language of a requested charge when the principles upon which the jury must make its decision have been clearly explained by the trial court. Such being the situation in this case, the assignment[s] of error [are] without merit.” Mathis v. State, 192 Ga. App. 772 (4) (386 SE2d 532) (1989).

7. Appellant also enumerates as error the trial court’s failure to charge the defense of mistake of fact. OCGA § 16-3-5. Appellant contends that he was under the misapprehension that no robbery was being committed as he was acting in accordance with his alleged co-conspirators’ plan to defraud the parent company. Pretermitting the question of whether or not mistake of fact was appellant’s sole defense, appellant cannot maintain that his misapprehension justified his actions in robbing the store manager at gunpoint. The requested charge was not properly adjusted to the facts. The evidence adduced at trial clearly did not authorize a charge on mistake of fact, and the trial court was correct in refusing to give the charge. This enumeration is without merit. See Hayes v. State, 193 Ga. App. 33 (8) (387 SE2d 139) (1989).

8. Finally, appellant argues that the trial court erred in denying his motion for new trial based on all the contentions enumerated and discussed above and the general grounds. We find the evidence to be sufficient for a rational trier of fact to conclude that appellant was guilty of armed robbery as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Based on the foregoing, the court correctly denied appellant’s motion for new trial.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1067.
    ROUNTREE v. THE STATE.
    (398 SE2d 37)
   Cooper, Judge.

Appellant was indicted on charges of armed robbery (Count I) and robbery (Count II) and found guilty by a jury on both counts. One of the victims testified that on the morning of October 17, 1987, she went to the bank to deposit cash receipts, and while she was in the bank, appellant bumped into her and yanked the bag of cash from her. The second victim testified that on the morning of September 25, 1987, as he exited a bank after cashing payroll checks for his employees, appellant jumped out of a car behind the victim and beat him on the head with a pistol before taking the money and driving away. In February 1988, an officer patrolling in his vehicle became suspicious when he noticed a car with two men in it parked in a lot across the street from a bank. The officer testified that he pulled into a vacant lot and watched the car for approximately ten minutes and that when the men in the car saw him, appellant got out of the car, looked under the hood for a few seconds and then let the hood down, got back in the car and pulled out of the lot at a high rate of speed. The officer pursued the car with his blue lights on until the car stopped. Appellant got out of the car and when asked by the officer for a driver’s license, he gave the officer a driver’s license in the name of Willie Daniel. When the officer discovered that appellant did not fit the description on the license, he patted appellant down and found a stocking mask in his jacket pocket. Appellant was arrested and charged with driving without a license. At a line-up conducted approximately two weeks after appellant’s arrest, the first victim identified appellant as the man who robbed her. The second victim could not identify appellant in the line-up; however, a witness to the second victim’s robbery identified appellant as the man who committed the robbery.

1. Appellant contends in his first enumeration of error that the prosecutor impermissibly placed appellant’s character in evidence. The prosecutor cross-examined appellant about where he got the tattoo which was on his face. When appellant responded that he got it at “Hardwick,” the prosecutor asked him what “Hardwick” was. Before appellant responded, defense counsel requested a bench conference and following the bench conference the following colloquy transpired between the prosecutor and appellant:

Q: And what is Hardwick?
A: A correctional center for youthful offenders.
Q: And it is also an adult prison, isn’t it?
A: No, I was in the Y-0 Unit.
Q: And when was it that you were in Hardwick?
A: 8-82

Decided October 10, 1990.

Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Richard E. Hicks, Assistant District Attorneys, for appellee.

Q: And why were you there?
A: Being with the wrong fellows at the wrong time.
Q: Well, that’s not the crime that you pled guilty to to get to Hardwick now, is it?
A: Yes.

Although the bench conference was not transcribed, the record was supplemented to reflect that during the bench conference defense counsel objected to any testimony describing what “Hardwick” was or why appellant was there and that the trial court overruled the objection. No objection was made to the testimony, which occurred following the bench conference, relating to appellant’s having pled guilty to a crime. Nor did appellant’s counsel, at any time during the trial, move for a mistrial or request any curative instructions. Therefore, we find that appellant has preserved nothing for this court to review. Acierno v. State, 176 Ga. App. 600 (2) (337 SE2d 39) (1985).

2. In his second enumeration of error, appellant contends that the trial court erred in charging the jury as follows: “This case has been carefully tried by both sides. It has been submitted to you for decision and verdict, if possible, and not for disagreement.” The charge given by the trial court was almost verbatim to the charge approved by the Supreme Court in Spaulding v. State, 232 Ga. 411 (4) (207 SE2d 43) (1974). Accordingly, we find no error with the trial court’s charge.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1118.
    KENNEDY v. THE STATE.
    (398 SE2d 249)
   Cooper, Judge.

Appellant was found guilty by a jury of being a convicted felon in possession of a firearm.

1. Appellant contends that the evidence was insufficient to support the jury’s verdict. The evidence viewed in a light favorable to the jury verdict shows that several officers responded to a call at a house where appellant, a convicted felon, lived with his mother. Although appellant was in the house when the officers arrived, he did not respond to the officers either when they knocked on the door or when they announced their presence in the house. As the officers proceeded to look through the house, one of them saw a gun in an open dresser drawer in a bedroom and upon further inspection, found that the gun was loaded with four live rounds of ammunition and contained one fired shell casing. The same officer also found a hole, approximately the size of a bullet, in a screen in the bedroom window. The officer testified that the gun had a strong odor of gunpowder, which is not normal if a gun has been sitting for a length of time. Appellant’s mother testified that she owns a .38 caliber gun, which she keeps in a file cabinet drawer in her bedroom; that when she left on the morning of the incident to go to work, the gun was locked in the file cabinet; that the key to the file cabinet was in a little box on top of the file cabinet; and that appellant knows the location of the key. Appellant was the only person in the house when the gun was found and no one was seen leaving or entering the house prior to the time the officers arrived. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of possession of a firearm. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Thompson v. State, 168 Ga. App. 734 (2) (310 SE2d 725) (1983).

Decided October 10, 1990.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, for appellee.

2. Appellant contends that the trial court erred in giving the following charge to the jury: “The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who though not in actual possession knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” The trial court’s charge was based on the evidence (see Division 1) and was a correct statement of the law, Thompson v. State, supra at 736; therefore, we find no error in the charge. See Griggs v. State, 181 Ga. App. 618 (3) (353 SE2d 97) (1987).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1151.
    LEONARD v. THE STATE.
    (398 SE2d 250)
   Cooper, Judge.

Appellant was convicted by a jury of two counts of aggravated assault upon a peace officer. The evidence adduced at trial reveals that appellant robbed Clifton Wells at gunpoint at a gasoline station in Fulton County. Appellant fled the scene of the robbery to an adjacent construction site where he stole a truck. At the construction site, appellant, confronted by local police officers Marlin and Ward, swerved the truck toward the spot where Marlin was standing and then swerved and hit Ward’s patrol car. Appellant then entered the highway and drove into Fayette County where two county deputies attempted to bring appellant’s vehicle to a stop. These deputies, Pruitt and Bennett, both testified at trial that appellant drove the truck directly toward each of their cars, causing impact. Pruitt testified that in his opinion appellant had room to avoid his car but did not do so. Bennett testified that after the impact with appellant’s truck, appellant was coming toward his driver’s door and Bennett had to take evasive action to avoid a life-endangering situation. The charges against appellant arise from the collisions with Pruitt and Bennett. The State also introduced testimony of a former police officer, Thompson, who testified as to a similar chase scene involving appellant which occurred in 1980. Thompson testified that appellant stole a truck after a burglary and during a chase, sped up, aimed the truck toward the officer’s car and collided with the car. Appellant testified at trial that he was trying to avoid the officers and that he did not intentionally strike their vehicles, but rather the officers hit his vehicle.

1. Appellant first asserts as error the admission of the evidence and testimony regarding the robbery of Wells and the encounters with Marlin and Ward on the grounds that these events were not the subject of the instant charges, were concluded before the collisions with Pruitt and Bennett and would be highly prejudicial to the appellant. “ ‘ “(I)t is well settled that all of the circumstances connected with an accused’s arrest, ... are admissible as evidence at trial, even those that establish the commission of another criminal offense.” [Cit.]’ ” Howell v. State, 179 Ga. App. 632 (2) (347 SE2d 358) (1986). “When transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction as that for which the accused is being tried, they are admissible. . . . [Cits.] The allegedly separate events are admissible in evidence when they are part of a continuous course of conduct, closely connected in time, place and manner of commission. [Cit.]” Kennedy v. State, 193 Ga. App. 784 (1) (389 SE2d 350) (1989). The armed robbery, the encounters with Marlin and Ward and the collisions with Pruitt and Bennett all occurred within a time frame of one-half hour and constituted one continuous event. No error occurred in the admission of this evidence. Appellant’s fourth enumeration, objecting to the admission of the testimony of Marlin and Wells, is subsumed in the first enumeration and likewise has no merit.

Decided October 10, 1990.

Ballard, Slade & Ballard, H. Geoffrey Slade, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

2. Appellant next enumerates error in the admission of the evidence and testimony of the similar incident involving Thompson. “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. [Cit.]’ Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. [Cit.]” Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455) (1988). See Flanagan v. State, 193 Ga. App. 408 (2) (388 SE2d 29) (1989). Thompson’s testimony and court records of the prior crime introduced by the State are sufficient to identify appellant as the perpetrator of the previous crime. Additionally, the facts of the prior and current incidents are so similar that evidence of the former can be admitted to illustrate appellant’s motive, intent and bent of mind in the latter. This enumeration has no merit.

3. As to appellant’s enumeration that the court erred by denying appellant’s motion for a directed verdict, “[a] defendant is entitled to a directed verdict ‘(w)here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . . ’[Cit.]” Scavonne v. State, 193 Ga. App. 603 (1) (388 SE2d 375) (1989). Considering the officer’s testimony at trial, it was not error to deny appellant’s motion for a directed verdict.

4. Appellant’s enumeration that the court erred in allowing Thompson to illustrate his testimony by drawing a diagram of the collision scene is without merit. The diagram served a demonstrative purpose, the witness specified that it was not drawn to scale and it was not admitted into evidence; therefore, we find no error in the way the trial court dealt with the diagram. Harvey v. State, 175 Ga. App. 120 (4) (332 SE2d 912) (1985).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1177.
    SUPER DISCOUNT MARKETS, INC. v. KUBITZ.
    (398 SE2d 252)
    Decided October 10, 1990.

      Drew, Eckl & Farnham, G. Randall Moody, for appellant.
   Cooper, Judge.

Appellee filed an action in the State Court of DeKalb County seeking an unspecified amount of damages for personal injuries she suffered from a slip and fall in appellant’s store. Appellant answered the complaint and subsequently filed a written demand for a twelve-person jury pursuant to OCGA § 15-12-122 (a) (2). Prior to the commencement of the trial, the court denied appellant’s demand and required the case to be tried with a jury of six persons. Although appellee did not pray for a specific amount of damages, during closing arguments, appellee’s attorney asked the jury to award appellee an amount in excess of $50,000. The jury returned a verdict in favor of appellee in the amount of $35,000. Appellant’s sole enumeration of error is the trial court’s denial, of its demand for a twelve-person jury.

OCGA § 15-12-122 (a) (2) provides: “In all civil actions in the state courts in which the claim for damages is greater than $10,000.00, either party may demand in writing prior to the commencement of the trial term that the case be tried by a jury of 12. If such a demand is made, the judge shall follow the procedures for superior courts of subsection (b) of this Code section.” Appellee’s attorney, when asked by the court whether he also wanted a twelve-person jury, responded that he wanted a six-person jury. We find that statement to be tantamount to an acknowledgment that appellee’s claim was for less than $10,000. It seems grossly unfair for an attorney to utilize the informalities of “notice pleading” by not pleading a specific amount of damages, object to appellant’s demand for a twelve-person jury, and then argue to the jury that his client is entitled to an amount greatly in excess of the $10,000 limit set for six-person juries.

Appellee contends that appellant had the burden of proving that appellee’s claim was greater than $10,000 at the time the court ruled on appellant’s demand. We disagree. To place such a burden on the party demanding a twelve-person jury would require the court to conduct an evidentiary hearing before ruling on the demand. It seems the better practice for the trial court to grant the request for a twelve-person jury unless the record affirmatively shows that the claim is for less than $10,000. Inasmuch as the record did not reflect that the claim was for less than $10,000, we conclude that the trial court erred in not granting appellant’s request for a twelve-person jury.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.

Lloyd W. Hoffspiegel, for appellee.


text:
    A90A1190.
    In the Interest of R. A. W., a child.
    (398 SE2d 261)
    Decided October 10, 1990.

      Hagler, Hyles & Cain, M. Stephen Hyles, for appellant.

      Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.
   Cooper, Judge.

A petition of delinquency was filed against appellant alleging that he committed the offenses of criminal damage to property (OCGA § 16-7-23), interference with government property (OCGA § 16-7-24) and criminal trespass (OCGA § 16-7-21). The trial court directed a verdict in favor of appellant on the counts of criminal damage to property and criminal trespass and adjudicated appellant delinquent based on the offense of interference with government property.

Appellant’s sole enumeration of error is that the evidence was insufficient to support the adjudication of delinquency. “Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is ‘beyond a reasonable doubt.’ [Cits.] On appeal we thus apply the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which is whether a rational trier of fact could reasonably have found from the evidence presented proof that the juvenile committed the offense beyond a reasonable doubt. [Cit.]” In the Interest of C. D. L., 184 Ga. App. 412 (361 SE2d 527) (1987).

A witness for the State testified that appellant admitted to her that he had torn down some traffic control signs in the neighborhood. “On appeal the Court is bound to construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact, here the trial court. [Cit.] The issues of the credibility of the witnesses and the resolution of conflicts in the evidence fall within the province of the trial court. [Cit.] Application of these principles leads to the conclusion that the evidence was sufficient. [Cit.]” In the Interest of C. D. L., supra.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1297.
    PEACHTREE WINFREY ASSOCIATES v. GWINNETT COUNTY BOARD OF TAX ASSESSORS.
    (398 SE2d 253)
   Cooper, Judge.

This appeal arises from the dismissal with prejudice of a civil action.

Appellant filed an appeal to the superior court from a decision of appellee, the Gwinnett County Board of Tax Assessors. Following discovery, the trial court published an order scheduling the pre-trial conference for “Friday, January 31, 1990.” Reference to a 1990 calendar reveals that January 31, 1990, fell on Wednesday instead of Friday. When appellant did not appear at the pre-trial conference, the trial court, upon motion of the appellee, dismissed with prejudice appellant’s action for want of prosecution.

In three enumerations of error, appellant contends that the trial court erred in dismissing its action for want of prosecution. Appellant argues that the error in the scheduling order created confusion which resulted in its attorney’s failure to appear at the pre-trial conference. “The authority of the trial court to dismiss plaintiff’s complaint for failure to appear at a pretrial hearing is clearly established by [OCGA § 9-11-41 (b)] and Weeks v. Weeks, 243 Ga. 416 (254 SE2d 366).” Turner v. T & T Oldsmobile, 154 Ga. App. 228 (1) (267 SE2d 833) (1980). “An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of that discretion.” Cohutta Mills v. Bunch, 166 Ga. App. 395 (2) (304 SE2d 431) (1983). Furthermore, “[w]e will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.]” Id. Because appellant did not appear for the hearing and since there is no evidence in the record that appellant even inquired as to the dates specified in the order, we find no abuse of discretion in the dismissal of appellant’s case.

OCGA § 9-11-41 (b) (1) as amended in 1982 provides that “[a] dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits.” “Since a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, it follows that such a dismissal cannot be with prejudice.” Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984), aff’d 254 Ga. 265 (330 SE2d 596) (1985). We find appellee’s argument that a dismissal with prejudice was proper because appellant failed to comply with an order of court to be without merit. The trial court’s order specifically stated that it was a dismissal for want of prosecution; therefore, the court had no authority to further direct that the dismissal operate with prejudice. Id. Accordingly, we reverse the order of dismissal entered by the trial court.

Decided October 10, 1990.

James W. McKenzie, Jr., for appellant.

Caryl B. Sumner, Richard A. Carothers, for appellee.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1341.
    FIRST UNION NATIONAL BANK OF GEORGIA et al. v. INDEPENDENT INSURANCE AGENTS OF GEORGIA, INC.
    (398 SE2d 254)
   Banke, Presiding Judge.

The appellee, a Georgia corporation comprised of an association of agencies and individuals licensed to sell insurance in this state, brought the present action against the appellants, First Union National Bank of Georgia, First Union Corporation of Georgia, and First Union Mortgage Corporation, seeking a judicial determination that the appellants’ activities in marketing and selling certain lines of casualty and property insurance in this state were violative of OCGA § 33-3-23 (b), which prohibits such activities by banks and bank holding companies, their subsidiaries or affiliates. In addition, the appellee sought to enjoin the appellants from such activities and to recover monetary damages. In answer to the complaint, First Union National Bank of Georgia and First Union Corporation of Georgia denied having engaged in any activities within the scope of OCGA § 33-3-23 (b), while First Union Mortgage Corporation asserted that its insurance activities were permissible under OCGA § 33-3-23 (f), which exempts from subsection (b) of that Code section banking institutions and their subsidiaries which have continuously conducted insurance operations in Georgia since January 1, 1974. We granted the appellants’ application for an interlocutory appeal from the denial of their motion to dismiss the complaint or, in the alternative, for summary judgment.

The evidence of record reveals that in September of 1987, the appellee asked the Georgia Commissioner of Insurance to initiate an investigation to determine the legality of the appellants’ alleged insurance activities. Acting pursuant to OCGA § 33-2-12, the Commissioner thereafter appointed an examiner to investigate the insurance-related activities of First Union Insurance Group, a division of First Union Mortgage Corporation, to ascertain whether those activities were violative of OCGA § 33-3-23. The examiner ultimately reported to the Commissioner that First Union Mortgage Corporation (and its predecessor) were “in continuous operation and that policies were issued to Georgia residents from said company during [the years 1973 through 1987].” The Commissioner’s deputy comptroller general forwarded a copy of the examiner’s report to the appellee, along with a transmittal letter stating that “factually, First Union complies with the ‘grandfather clause’ requirement of continuous activity from January 1, 1974, as found in OCGA § 33-3-23 (f).” The Commissioner also sent a letter to the appellee in which he reiterated those findings and concluded that, “based upon the information available at this time . . ., First Union Insurance Group appears not to violate OCGA § 33-3-23.” The appellee then brought the present declaratory judgment action, without pursuing any further administrative relief. Held:

1. The appellants contend that the present action is barred by the appellee’s failure to exhaust its administrative remedies before the Commissioner. In denying the motion to dismiss the complaint, the trial court determined “that the administrative procedures set forth in the Georgia Insurance Code are not mandatory or exclusive” and that the appellee “has the right to seek a declaratory judgment from this court without exhausting those administrative remedies.”

OCGA § 50-13-19 (a) of the Administrative Procedure Act provides as follows: “Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.... A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” However, it has been held that “only in rare instances will the requirement of exhaustion be relaxed. This will be the case only when the administrative remedy exacts a price which causes it to be no remedy at all.” Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986). See also Wilson v. Ledbetter, 260 Ga. 180 (390 SE2d 846) (1990); George v. Dept. of Nat. Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983). We are unr prepared to hold that this is the situation in the present case.

Under OCGA § 33-2-1 et seq., the Insurance Commissioner has exclusive authority to enforce the Insurance Code. The Commissioner may issue orders prohibiting persons from engaging in activities which, in his opinion, are prohibited by the Code; and any persons aggrieved by “any act... or failure of the Commissioner to act. . are entitled to notice and an opportunity for an administrative hearing under OCGA § 33-2-17 et seq. As an entity assertedly aggrieved by the Commissioner’s decision in this case finding the appellants to be in compliance with OCGA § 33-3-23 (b), the appellee was clearly authorized to request such a hearing and to seek judicial review of the Commissioner’s decision following such a hearing in the event it remained favorable to the appellants. See OCGA § 33-2-26 et seq. We have no basis for concluding that the pursuit of this administrative appeal process would be unavailing to the appellee. Compare Wilson v. Ledbetter, supra (where the department’s rules precluded administrative review of a decision adverse to the plaintiffs); Hilton Constr. Co. v. Rockdale County Bd. of Education, 245 Ga. 533 (3) (266 SE2d 157) (1980) (where the available administrative remedies could not afford complete relief). Accordingly, we hold that the trial court erred in denying the appellants’ motion to dismiss the complaint.

Decided October 10, 1990.

Troutman, Sanders, Lockerman & Ashmore, Tench C. Coxe, Robert Edwards, Jr., Mark S. Vanderbroek, for appellants.

Thomas L. Murphy, for appellee.

2. The appellants’ remaining enumeration of error is rendered moot by the foregoing.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1592.
    DeKALB COUNTY et al. v. SCHURGIN DEVELOPMENT CORPORATION.
    (398 SE2d 260)
    Decided October 10, 1990.

      Johnson & Montgomery, Albert S. Johnson, Susan C. Mullís, for appellants.

      Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., James D. Comerford, Richard W. Wilson, Jr., G. Douglas Dil

      lard, Bernard R. Wolfe, for appellee.
   McMurray, Presiding Judge.

On March 27, 1990, the trial court dismissed appellants’ cross-appeal in this zoning case. Appellants simultaneously pursued this direct appeal and a discretionary appeal from the trial court’s order of dismissal. Appellants’ discretionary appeal application was transferred to the Supreme Court where it was denied.

With regard to the direct appeal, we find that we are without jurisdiction to entertain it. A direct appeal cannot be entertained in a zoning case. Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123). It follows that this direct appeal from an order dismissing a notice of cross-appeal in this zoning case must be dismissed. See Brewer v. Bd. of Zoning Adjustment, Atlanta, 170 Ga. App. 351 (317 SE2d 327).

Appeal dismissed.

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


text:
    A90A1744.
    WILLIS v. THE STATE.
    (398 SE2d 259)
    Decided October 10, 1990.

      John H. Tarpley, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Adams, Robert M. Coker, Assistant District Attorneys, for appellee.
   Deen, Presiding Judge.

A DeKalb County jury found appellant Willis guilty of violating the Georgia Controlled Substances Act by possessing and selling cocaine. Willis’ motion for new trial on the general grounds was denied April 23, 1990. On appeal he enumerates as error the sufficiency of the evidence and the State’s alleged failure to prove the chain of custody of the cocaine. Held:

1. Our scrutiny of the trial transcript and the remainder of the record in the instant case indicates that the only evidence for defendant was his own testimony, and that more than a sufficiency of competent evidence was adduced by the State to authorize the jury to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Further examination of the trial transcript reveals that the chain of custody of the packet of cocaine which an undercover officer purchased from appellant was established in accordance with customary procedures. The testimony of the law enforcement officers was “sufficient ... to establish with reasonable assurance that the cocaine admitted into evidence was the same substance that the undercover agent had purchased from appellant and that there had been no tampering.” Stewart v. State, 190 Ga. App. 162 (378 SE2d 387) (1989). Moreover, the trial transcript indicates that defense counsel did not object to the admission of the cocaine into evidence, nor did he question any witnesses regarding the chain of custody. “A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable verdict and then complain later.” Simmons v. Edge, 155 Ga. App. 6, 8 (270 SE2d 457) (1980).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1787.
    DEPARTMENT OF MEDICAL ASSISTANCE v. LLEWELLYN.
    (398 SE2d 256)
   Deen, Presiding Judge.

Appellee Llewellyn applied for medical assistance benefits. The Department of Medical Assistance (“Department”) determined that appellee had transferred certain assets for less than fair market value and, further, that she had not rebutted the presumption that the transfer was made for the purpose of establishing eligibility for benefits. Her application was denied, and she requested and received administrative review of this decision before an administrative hearing officer.

The Department filed its final decision in January 1988, and appellee sought judicial review in the Monroe County Superior Court. Upon that court’s reversal of the Department’s determination that appellee Llewellyn was ineligible for benefits, the Department applied for an appeal to this court, which granted the application and reversed the decision below, holding that the superior court had not applied the proper standard of review. Johnson v. Llewellyn, 194 Ga. App. 186 (390 SE2d 94) (1990). After filing of the remittitur in the Monroe County Superior Court, the Department moved for costs pursuant to OCGA § 5-6-5, attaching bills and other evidence of costs paid in conjunction with the appeal. The superior court denied the motion, reciting that it was untimely because it was filed after the adoption of the remittitur. The Department now files this direct appeal, assigning error to (1) the trial court’s non-compliance with the allegedly mandatory language of OCGA § 5-6-5 and (2) the trial court’s ruling that the motion, to be timely, should have been filed prior to the adoption of the remittitur. Held:

1. OCGA § 5-6-5 provides as follows: “If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.” Both parties focus on the word “shall” in this statute, appellant contending that the word is mandatory in effect and appellee arguing that it merely denotes simple futurity. This court has generally held that, unless the context clearly indicates otherwise, the word “shall” is to be read as a word of command. See, e.g., Tate v. Burns, 172 Ga. App. 688 (324 SE2d 485) (1984); Cole v. Frostgate Warehouses, 150 Ga. App. 320 (257 SE2d 309) (1979). Appellee acknowledges the holdings in such cases but nevertheless contends that the matter of costs is discretionary and that the meaning of “shall” depends on any modifying phraseology that may appear in the context. In support of this contention he relies on the clause of OCGA § 9-11-54 (d) which provides that “costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs(Emphasis supplied by appellee.) It is well settled, however, that the controlling statute here is OCGA § 5-6-5, not OCGA § 9-11-54. Barnett v. Thomas, 129 Ga. App. 583 (200 SE2d 327) (1973); disapproved on other grounds 232 Ga. 92 (205 SE2d 293) (1974).

Decided October 10, 1990.

Michael J. Bowers, Attorney General, William C. Joy, William M. Droze, Senior Assistant Attorneys General, for appellant.

Even if, arguendo, we were to pretermit the parsing of the word “shall,” it would be more fruitful in the instant case to focus on the word “entitled” in OCGA § 5-6-5 rather than on “shall.” As appellee notes, Black’s Law Dictionary (4th ed., p. 626) defines “entitle” as “[t]o qualify for; to furnish with proper grounds for seeking or claiming.” Black’s further defines the term as “to give a right or title.” It is the concept of “entitlement” that is controlling here. The issue of whether the prevailing party has the right to obtain costs has already been settled in his favor: that party has already qualified for costs; it is simply a matter of asking for them once (“as soon as”) the remittitur “is returned to the court below.” The statute expressly sets the return of the remittitur as the earliest point in time (the terminus a quo) at which the entitlement takes effect — or at which the prevailing party may assert its claim; it is silent as to the terminus ad quern — that is, the latest point in time to which the entitlement extends. In situations where no time is specified for the accomplishment of a given act, either by statute or by contract, the court routinely presumes “a reasonable time.” See OCGA §§ 1-3-3 (5); 13-4-20; Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218 (308 SE2d 564) (1983); Parker v. Futures Unlimited, 157 Ga. App. 520 (278 SE2d 99) (1981).

In the instant case the record shows that the remittitur was sent to the trial court on January 31, 1990; that it was filed there on February 2 and judgment entered on February 19; and that the motion for costs was transmitted by the Department on February 20 and filed on February 22. In the circumstances of the instant case the rational person must surely find due diligence and regard this interval as “a reasonable time.” Moreover, appellee has not alleged in what way, if any, a few days’ delay in being asked to turn over to the Department the sum of approximately $300 in costs was detrimental to her. The trial court erred in its reading of OCGA § 5-6-5 and in denying the motion whereby appellant asserted its rightful claim to costs.

2. Our holding in Division 1, supra, incorporates and therefore renders moot appellant’s second enumeration of error.

Judgment reversed.

Pope and Beasley, JJ., concur.

C. Robert Melton, for appellee.


text:
    A90A1916, A90A1917.
    HUFF v. THE STATE (two cases).
    (398 SE2d 258)
   Deen, Presiding Judge.

While investigating a burglary at a self-storage facility in Griffin, Georgia, law enforcement officers saw in plain view, through a 20-inch-wide hole in the wall separating the storage bin they were investigating from the adjacent bin, a large number of gallon milk jugs stacked in crates that filled the area. Suspicious as to the jugs’ contents both because the jugs were so numerous and because of a seemingly unrelated incident that had occurred the previous evening, an officer reached through the aperture and removed the screw-top from one of the jugs, none of which appeared to bear tax stamps. The officer concluded that the jugs were filled with “moonshine whiskey,” a conclusion later confirmed by State Crime Laboratory tests performed subsequent to seizure of the jugs.

A Spalding County jury found appellant guilty as charged, and he unsuccessfully sought a new trial on the general grounds. He subsequently entered a plea in bar based on an allegation of double jeopardy. He now appeals from the judgment entered on the jury verdict and also from the denial of his plea in bar. Held:

1. In a consolidated enumeration of errors, appellant assigns error to the trial court’s denial of his motions to suppress the evidence, for directed verdict of acquittal, for mistrial due to alleged prosecutorial misconduct, and to quash the original accusation. He also enumerates as error the trial court’s failure to require that he receive five days’ notice of arraignment and the overruling of his plea in bar. Dealing first with the plea in bar and the motion to quash the accusation (Case No. A90A1917), we find that, according to the record, the jurors were not sworn until after the quashing and dismissal of the accusation on which he was originally brought to trial. It is well settled in Georgia law that jeopardy does not attach until after the jury is impaneled and sworn. Alexander v. State, 192 Ga. App. 211, 212 (384 SE2d 436) (1989).

The record further reveals that only one accusation — not two — was quashed, contrary to appellant’s allegation. OCGA § 16-1-8 operates to bar double jeopardy only in the presence of a set of facts not obtaining here. This enumeration has no merit; nor, by the same token, has the enumeration pertaining to the motion to quash the accusation.

2. As to appellant’s enumeration regarding lack of statutory notice (#6), the record shows that the accusation upon which he was tried was filed July 21, 1989. Appellant and his attorney appeared in court for arraignment on July 24 and entered a plea of “not guilty.” Under the relevant statute, OCGA § 17-7-91 (c), “The appearance and entering of a plea by the accused shall be a waiver of the [five days’] notice required in this Code section.” Appellant is therefore deemed to have waived his right to five days’ notice, and the sixth enumeration is without merit.

Decided October 10, 1990.

Virgil L. Brown & Associates, Eric D. Hearn, Bentley C. Adams III, for appellant.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.

3. Examination of the records of both these related cases reveals that under the evidentiary and procedural facts obtaining here, the trial court ruled properly on all the motions involved in appellant’s second, third, and fourth enumerations of error, and that these enumerations are consequently without merit.

Judgments affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0868.
    DEPARTMENT OF TRANSPORTATION v. MILLS et al.
    (398 SE2d 218)
   McMurray, Presiding Judge.

The subject tract in this condemnation action consisted of 3.723 acres on the corner of Seayes Road and Austell Road in Cobb County. Condemnor Department of Transportation took 0.320 acres, a strip 25 to 47 feet wide, to improve Austell Road. Condemnor’s estimate of adequate compensation deposited in the trial court was $78,325. The condemnees appealed the matter to a jury which awarded compensation of $359,200. Condemnor appeals. Held:

1. Condemnor’s first enumeration of error contends that the trial court erred in excluding from evidence an exhibit tendered by condemnor. The exhibit in question had apparently been acquired by condemnor during the deposition of a professional appraiser, Pritchett, who subsequently testified at trial for one of the condemnees, the owner of the encumbered fee. Pritchett was cross-examined at length concerning the exhibit which showed a lower value for the taking and some differences in underlying assumptions when compared with his testimony on direct examination. When cross-examined concerning the origins of the exhibit, Pritchett first stated that it had been done in connection with an estate appraisal but later stated that it gave a preliminary opinion as to the values of the taking. It was consistently stated that the exhibit was not an estimate of value at the date of the taking but related to some unspecified prior time.

Condemnor contends the trial court erred in refusing to admit the exhibit into evidence so that it could be sent out with the jury in its deliberations. Condemnor argues that the exhibit was a prior inconsistent statement and admissible under Gibbons v. State, 248 Ga. 858 (286 SE2d 717), and its progeny.

Upder similar circumstances in Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749 (1) (371 SE2d 231), we pointed out that a prior inconsistent statement is one that is contradicted by a later statement on the same issue but that such does not occur when two different time frames and sets of circumstances are involved. Thus, the exhibit was not a prior inconsistent statement when viewed in relation to Pritchett’s direct testimony as to the value of the taking at the time of the actual taking, therefore was not admissible for impeachment purposes or as substantive evidence under Gibbons. Nor was the exhibit, which was not associated with any specific time, otherwise subject to consideration by the jury. This irrelevant matter was properly excluded.

2. Witness Bordon had been “in property management with Citizen’s and Southern Trust Company,” one of the co-trustees of the estate which owned the encumbered fee simple title to the property taken, for the preceding 11 years. Bordon had some knowledge of the subject property for the last four or five years, was familiar with the rental history of the subject property, and sometimes had occasion to look into alternative investments for the estate which owned the subject property and for other estates.

Condemnor contends that it was error to admit into evidence, over its objection that no foundation had been laid, the opinion of witness Bordon as to the value of the property taken. Also enumerated as error is the trial court’s refusal to strike Bordon’s opinion as to value after it was established upon cross-examination that such represented undepreciated replacement cost of a convenience store structure which Bordon viewed as having been made useless when the taking eliminated most of the store-front parking.

Pretermitting the issue raised as to the sufficiency of the foundation for the admission into evidence of Bordon’s opinion as to the value of the property taken, we find that the trial court erred when it declined to strike that testimony upon its being revealed to be undepreciated replacement cost of a building. While the loss of use of the building would be a proper element of consequential damages, the fair market value of the building is not demonstrated, save perhaps in the instance of a new building which this was not, by evidence of replacement cost, absent evidence of depreciation. The admission of the evidence of replacement cost, absent depreciation, was irrelevant and misleading to the jury and should have been stricken. Metropolitan Atlanta Rapid Transit Auth. v. Dendy, 250 Ga. 538 (299 SE2d 876).

Decided September 26, 1990

Rehearing denied October 11, 1990

Michael J. Bowers, Attorney General, Evans & Flournoy, Charles A. Evans, for appellant.

Chamberlain, Hrdlicka, White, Johnson & Williams, Richard N. Hubert, Jimmy W. Jones, for appellees.

3. Condemnor’s remaining enumeration of error need not be addressed as it is unlikely to recur upon retrial of the case.

Judgment reversed.

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


author: Beasley Jud^6

text:
    A90A1012, A90A1013.
    KELLEY et al. v. RS&H OF NORTH CAROLINA, INC.; and vice versa.
    (398 SE2d 213)
   Beasley Jud^6

Appellee RS&H of North Carolina, Inc. (“RS&H”), a North Carolina corporation, entered into a contract with Southern Properties of Georgia, Inc., to provide engineering services for a proposed real estate development project in Gwinnett County. The contract was signed by appellant Kelley as president of Southern Properties of Georgia, Inc. Appellant MacConochie was a financial investor who signed an agreement with Kelley and other principals in the project to form a Georgia corporation or other entity to acquire and develop the property. The project was abandoned after Gwinnett County denied a zoning change.

Before signing the contract, Kelley as president of Southern Properties, Inc., a North Carolina corporation, applied to the Secretary of State of Georgia for a certificate of authority to do business in Georgia under the name Southern Properties of Georgia, Inc. Several weeks after the contract was signed, the certificate was denied due to a name conflict. Kelley then submitted a new application for a certificate of authority using the name Southern Properties of N. C., Inc., which was granted. RS&H did not discover that there was no Georgia corporation called Southern Properties of Georgia, Inc., until after its demand for payment under the contract was not met.

RS&H sued Kelley and MacConochie, contending that they were individually liable for $61,681.68 because they held themselves out to be officers and employees of a corporation they knew to be nonexistent. The verdict was in favor of RS&H for $30,930.84 plus interest. Kelley and MacConochie contend that there is no legal basis for any personal liability on their part. RS&H cross-appeals from the amount of the judgment awarded.

Case No. A90A1012

1. The essential issue was whether the appellants were acting as an existing North Carolina corporation or a fictitious nonexistent Georgia corporation.

“All persons who assume to act as a corporation before the Secretary of State has issued the certificate of incorporation to the incorporator or incorporators or their attorney shall be jointly and severally liable for all debts and liabilities occurred or arising as a result thereof.” Former OCGA § 14-2-23. However, “[t]he existence of a corporation claiming a charter under color of law cannot be collaterally attacked by persons who have dealt with it as a corporation. Such persons are estopped from denying its corporate existence.” Former OCGA § 14-2-23. “Although the Official Comment to OCGA § 14-2-23 specifies that the latter Code section was not intended to lessen the applicability of the estoppel by corporation doctrine, this court has held in no uncertain terms that the doctrine does not permit an individual to escape liability for obligations undertaken as an agent for a corporation which has not yet been ‘registered’ (i.e., issued a certificate of incorporation) by the Secretary of State. [Cits.]” Video Power v. First Capital Income Properties, 188 Ga. App. 691, 692 (1) (373 SE2d 855) (1988). If, then, Kelley and MacConochie were acting in behalf of an unregistered Georgia corporation, they are individually liable for its debts.

Appellants contend that they were acting for Southern Properties, Inc., an existing North Carolina corporation, and that Kelley signed the contract with RS&H for Southern Properties, Inc., using the misnomer of Southern Properties of Georgia, Inc. They argue that in such case, since the intent of the parties was to do business with an existing corporation, it made no difference what state it was incorporated in.

The applicable law is as follows: “In a situation where the existence of the corporate entity is questioned, the controlling factor in determining whether the estoppel doctrine applies is whether the entity on whose behalf the person entering into the contract purported to act had been issued a certificate of incorporation before the contract was executed. If not, then the contracting agent will be held personally liable for the obligations of the purported corporation thus incurred. [Cits.] . . .” “ ‘ “The important thing is to determine what corporation the parties intended, for it is the intent of the parties that controls. Error in the use of the corporate name will not be permitted to frustrate the intent which the name was meant to convey, and to find out the identity of the corporation intended, resort may be had to evidence aliunde.” (Cit.)’ [Cit.]” (Emphasis supplied.) Pinson v. Hartsfield Intl. Commerce Center, 191 Ga. App. 459, 461 (382 SE2d 136) (1989).

RS&H’s agents testified that they were repeatedly told by appellants that the entity with which they were contracting was a Georgia corporation, but the evidence is undisputed that this corporation never existed. The North Carolina corporation of the same name was not the one RS&H was dealing with, nor was it shown to be the one on whose behalf Kelley was purporting to act. Although Kelley claimed to be its president, he admitted that he had never drawn a paycheck, never appeared for work there and was unaware if it was still in business. He did not offer any proof that he had been elected its president or received any shares of its stock. For the jury to agree with appellants’ argument, they would have had to find that RS&H entered into a contract with a corporation it never heard of and did not know existed. Representations purportedly made by the parties, as well as the intent of the parties, are jury questions. The evidence presented supported the verdict of the jury and must be affirmed. Lissmore v. Kincade, 188 Ga. App. 548 (1) (373 SE2d 819) (1988).

2. Appellants’ remaining enumerations of error complain of jury instructions and the substitution during litigation of RS&H’s accurate name. After considering the charge as a whole, including those instructions requested by appellants, we conclude that the trial court fully and accurately explained the respective positions of the parties and the law in regard to fictitious corporations and misnomers, which in summary is that if the appellants were acting as a North Carolina corporation they had no liability, but if they were acting on behalf of a nonexistent Georgia corporation they were personally liable under theories of contract, quantum meruit or account.

As to the misnomer, appellants have shown no harm to themselves to the extent that allowing the substitution of plaintiff’s correct name was an abuse of discretion under the liberal policy of the CPA. Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984). Crucial is that at all times, throughout the transaction and litigation, it in fact existed.

Case No. A90A1013

3. RS&H’s cross-appeal complains of a charge that if the jury found defendants liable to RS&H, they should “give the defendants credit for any payments received by [RS&H] with regards to the contract from any source, whether the payments were made in money or by means of a promissory note or in some other manner.” There was evidence that an agreement, covenant and promissory note had been entered into between RS&H and three North Carolina principals of Southern Properties, Inc., prior to the filing of the suit. The amount of the judgment was equal to that sought by RS&H minus the amount of the promissory note ($30,930.84) but for $6,823.91, representing the one payment which had been made.

Decided September 11, 1990

Rehearing denied October 11, 1990.

Arnall, Golden & Gregory, James A. Gober, for appellants.

McReynolds & Boyd, J. Michael Welch, Frederic S. Beloin, for appellee.

RS&H contends that the charge misstated the law and in addition was inapplicable to the facts because there was no evidence that the note from the three North Carolina principals was accepted as payment or that the note discharged the original obligation, since the accompanying covenant recited that “in the event that there is a default in payment of the Promissory Note then this Covenant shall be null and void.” Kelley and MacConochie contend that the jury charge was not erroneous because it indicated only that the giving of the note could constitute payment, and the covenant provided that the amount due was “being paid through delivery” of the note.

Bank checks and promissory notes are not payment for a debt incurred until themselves paid, “absent some express agreement or compelling circumstances which clearly indicates a contrary intention of the parties.” Walsey v. Alterman Foods, 140 Ga. App. 270, 271 (231 SE2d 3) (1976). See also Malak v. McGinnis, 257 Ga. 622 (1) (361 SE2d 798) (1987); Norton v. Paragon Oil Can Co., 98 Ga. 468 (1) (25 SE 501) (1896). The terms of the covenant state on the one hand that the amount due was being paid by delivery of the note, and on the other hand and immediately following that any default in payment nullified the covenant. These conflicting terms fail to create an express and clear agreement that the giving of the note would constitute payment. There are no compelling circumstances indicating such an intention of the parties in the settlement either. The charge falls short of adequately explaining the appropriate legal principle to the jury. As it was misleading and not a correct statement of the law, it constituted error.

The judgment must be reversed. Upon return, the trial court is authorized to grant RS&H a new trial unless defendants accept in a new judgment the amount awarded plus an amount equal to the unauthorized deduction of $24,106.93.

Judgment reversed.

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


author: Pope, Judge.

text:
    A90A1197.
    COX v. THE STATE.
    (398 SE2d 262)
   Pope, Judge.

Defendant Gregory Cox was convicted of the armed robbery of a convenience store and appeals.

1. Defendant first argues the trial court erred in failing to rule on the admissibility of evidence of similar transactions prior to trial. Though a ruling was not made prior to trial, a hearing was conducted and a ruling on admissibility was made prior to the presentation of any evidence to the jury. Fair and adequate notice of the State’s intention to utilize evidence of similar transactions was given prior to trial, as required by Rule 31.1 of the Uniform Superior Court Rules, so that defendant had the requisite opportunity to investigate the validity, relevancy and admissibility of the prior offenses. See Thompson v. State, 186 Ga. App. 421 (2) (367 SE2d 586) (1988). Consequently, in this case we find no prejudice to the defendant. Cf. Grogan v. State, 192 Ga. App. 234 (384 SE2d 441) (1989) (in which this court held the trial court erred in waiting until after all other State’s evidence had been presented before ruling on the admissibility of an allegedly similar transaction because defendant was prejudiced thereby and, in addition, the evidence was not sufficiently similar to be admissible).

2. We find no error in'admitting evidence that defendant pled guilty to two other armed robberies of stores in 1981, seven years before the robbery at issue in this case. We have reviewed the evidence and find the circumstances to be sufficiently similar to be admissible to show identity, motive, plan, scheme, bent of mind or course of conduct. “Although lapse of time between the two crimes is an important factor to consider in determining admissibility of the prior crime, it is not wholly determinative.” Hudson v. State, 175 Ga. App. 878, 880 (334 SE2d 735) (1985). “[W]e are persuaded by the fact that defendant was incarcerated for approximately [six] of the intervening years, thus circumscribing his ability to commit similar offenses during much of the [seven-year] period. Accord Miller v. State, 165 Ga. App. 487 (2) (299 SE2d 174) (1983).” Anderson v. State, 183 Ga. App. 669, 671 (359 SE2d 688) (1987).

3. Contrary to defendant’s assertion, we find no evidence that the photographic line-up presented to the eyewitness was impermissibly suggestive. Moreover, the in-court identification of defendant by the eyewitness had an independent basis in the witness’ opportunity to observe the defendant at the scene of the crime. Thus, the trial court did not err in admitting the witness’ identification of defendant. See Messer v. State, 247 Ga. 316 (3) (276 SE2d 15) (1981). The witness testified she had the opportunity to see part of defendant’s face at the scene of the crime, declared immediately after the crime that she would be able to identify the robber if she saw him again and picked defendant’s photograph out of a line-up five days after the crime. Any inconsistency or inaccuracy in her physical description of the robber and the circumstances under which she observed him relates to the witness’ credibility with the jury but does not require her identification of defendant to be excluded as a matter of law. Cf. Bradley v. State, 148 Ga. App. 722 (2) (252 SE2d 648) (1979) (in which testimony was excluded where a witness had limited opportunity to observe the defendant, did not have the opportunity to identify the defendant until five weeks later and that opportunity was so suggestive as to prevent an independent identification at trial).

4. Defendant presented the testimony of psychologist Stephen P. Cole, Ph.D., as an expert in perception and memory. Dr. Cole was permitted to testify concerning his opinions on the effect of stress on memory and on statistical studies regarding the accuracy of recall over time (the “forgetting curve”). However, the trial court excluded his testimony regarding statistical studies on the relationship between a witness’ confidence in his or her identification of a person and the accuracy of that identification and studies addressing the accuracy of identifying a person of another race. The excluded testimony is almost identical to that the same witness offered to present in the trial of the case reviewed by the Georgia Supreme Court in Norris v. State, 258 Ga. 889 (1) (376 SE2d 653) (1989). The Supreme Court in Norris had already ruled such testimony to be inadmissible at the time the case now before us was tried. Id. at (1). As in Norris, the profferred testimony of Dr. Cole did not seek to comment specifically on the credibility of the eyewitness who testified in this case. However, testimony concerning general statistical reliability of eyewitness identification is properly excluded as expressing an opinion on a question which is solely for jury determination. See Porter v. State, 188 Ga. App. 675 (2) (373 SE2d 805) (1988); see also Jones v. State, 232 Ga. 762 (2) (208 SE2d 850) (1974). The trial court did not err in excluding testimony concerning the effect of feedback and intervening discussion with others on the accuracy of a witness’ identification because, in addition to the general rule stated above, defendant presented no evidence that the witness was subject to such factors.

5. The only direct evidence linking defendant with the crime was the eyewitness’ identification of him. Defendant was afforded ample opportunity to impeach the credibility of the witness. However, credibility is an issue for jury determination. See Miasso v. State, 191 Ga. App. 222 (381 SE2d 315) (1989). “ ‘(A)ppellate courts consider only the sufficiency . . . not the weight of the evidence.’ Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131) (1976).” Wayne v. State, 184 Ga. App. 160, 161 (361 SE2d 39) (1987). Consequently, we hold the trial court did not err in denying defendant’s motion for new trial on the general grounds.

Decided October 11, 1990.

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.