text:
    A97A0592.
    BROWN v. THE STATE.
    (486 SE2d 370)
   Eldridge, Judge.

Appellant, Leonard Eugene Brown, was indicted by the Walker County grand jury on November 8, 1994, for one count of arson and two counts of burglary. Appellant was tried before a jury on March 20 through 22, 1996, and found guilty on all three counts. Appellant received a sentence of twenty years on the arson count and ten years concurrent on the burglary counts.

A hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) (“Jackson-Denno”) was held outside the presence of the jury after the jury had been selected. During the Jackson-Denno hearing appellant testified. During the hearing, appellant, on direct examination contended that he had been held by the police and threatened so that he made a statement to them that he had been present during the arson and burglary, but denied any participation in the fire at the high school. On cross-examination, appellant admitted that he had told the police that he had acted as a look-out, but that such statement had been made under threat from the police. However, appellant also admitted during the cross-examination that the statement was, in fact, true; because he had been present at the school during the arson and burglary and had acted as a look-out.

At trial, appellant testified in his own defense; he denied any involvement in the burglary of the high school; he testified that the only reason that he made the statement to the police about his involvement was because the police threatened him; he denied specifically being present at the high school during the burglary and arson; appellant denied that he had any recall of his testimony at a Jackson-Denno hearing. On cross-examination at trial, appellant was asked if he had previously testified at the Jackson-Denno hearing that he had been, not only present at the high school, but also acted as the look-out. Repeatedly, appellant denied having made such admission at the hearing.

Detective Tommy Hollander, the named prosecutor in the case, had been present during the Jackson-Denno hearing and had heard appellant at that time admit to being present at the high school during the burglary and arson and serving as the look-out. Appellant’s counsel made timely objection to the admission of such testimony by Hollander as to what appellant admitted under cross-examination at the Jackson-Denno hearing.

A motion for new trial was filed on April 20, 1995, and denied on July 18, 1995. Notice of appeal was filed on August 17, 1995. However, the appeal was dismissed for failure to timely file appellant’s brief and enumerations of error. On October 3,1996, a motion for out-of-time appeal was filed and granted on the same day. The second notice of appeal was filed on November 1, 1996.

Appellant’s sole enumeration of error is that the trial court erred in admitting, over objection, appellant’s testimony given during the Jackson-Denno hearing for the jury’s consideration as incriminatory testimony and as prior contradictory, inconsistent statements.

“There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. [Cit.] We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. [Cits.] It is essential, therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant’s obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. [Cit.]” United States v. Havens, 446 U. S. 620, 626-627 (100 SC 1912, 64 LE2d 559) (1980).

Although warnings under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), have not been given or the Miranda rights have not been observed, statements which have been excluded from evidence in the prosecution’s case-in-chief become admissible for the purpose of impeachment only when the accused takes the stand and testifies differently; under such circumstances, the excluded statements, as contradictory or inconsistent statements, become admissible for such limited purpose but not to prove guilt; the trial court must give proper limiting instructions when such use is made of otherwise excluded evidence. Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971); Oregon v. Hass, 420 U. S. 714 (95 SC 1215, 43 LE2d 570) (1975); State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986); Jones v. State, 243 Ga. 820, 825-826 (6) (256 SE2d 907) (1979); Scott v. State, 243 Ga. 233 (1) (253 SE2d 698) (1979); Williams v. State, 239 Ga. 12, 14 (235 SE2d 504) (1977); Campbell v. State, 231 Ga. 69, 76-79 (3) (200 SE2d 690) (1973); Colbert v. State, 124 Ga. App. 283 (2) (183 SE2d 476) (1971).

In the case sub judice, after holding a Jackson-Denno hearing, the trial court found that the Miranda warnings had been properly given and observed that the confession had been freely and voluntarily made by appellant, so that the custodial statements were admissible and were, in fact, admitted. At the hearing on the admissibility of such statements, appellant chose to testify in his own behalf regarding the voluntariness of the statement. On direct examination, appellant exceeded the necessary parameters for proof of the alleged threats, duress, and coercion, which allegedly negated the voluntariness of the statements, and testified as to his innocence. By voluntarily going into his guilt or innocence and the substance of his statements to the police, appellant waived any constitutional protection that he might have had at the Jackson-Denno hearing and left himself open to a thorough and sifting cross-examination as to his guilt or innocence and the truth of his statements.

Further, prior to appellant’s testifying at the hearing, defense counsel failed to request a limitation on the scope of the examination and failed to reserve any right against self-incrimination. On direct examination, defense counsel intentionally went into the area of guilt or innocence and did not object when the prosecution sought to cross-examine on the area raised during the direct examination; this pretrial, sworn testimony was not necessary to protect any constitutional rights and exceeded the scope of testimony necessary to protect any constitutional rights. Appellant freely, knowingly, and voluntarily waived the right against self-incrimination, under oath in a judicial hearing, with the aid of counsel. At the trial of the case after the prosecution had rested, appellant exercised his constitutional right to testify in his defense; however, he made the mistake of testifying contrary to the testimony at the Jackson-Denno hearing, which the constitution does not give appellant a right to do. Under oath appellant testified that he could not recall what he had said under oath only a day or two previously, which laid the foundation, under OCGA § 24-9-83, for his impeachment by such testimony. Thus, the trial court correctly ruled not only that the custodial statement was admissible but also that the appellant’s testimony at the hearing was admissible. The limitations under Scott v. State, supra; Jones v. State, supra; and State v. Byrd, supra, are inapplicable; the statements had been admitted into evidence and therefore, the testimony of the appellant was admissible to prove guilt as substantive evidence, as well as for impeachment. See Gibbons v. State, 248 Ga. 858, 862-863 (286 SE2d 717) (1982). The United States Supreme Court held in United States v. Kahan, 415 U. S. 239 (94 SC 1179, 39 LE2d 297) (1974), that an accused who testifies at trial can be impeached by prior sworn statements made as a part of the proceedings. See also Cowards v. State, 266 Ga. 191, 193 (2) (465 SE2d 677) (1996).

Appellant mistakenly relies upon Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968). In that case, the defendant had to testify at a motion to suppress in order to establish standing to assert Fourth Amendment rights regarding an alleged illegal search and seizure of evidence. The motion was denied and the prosecution used such testimony at the trial to convict the defendant but not as contradictory testimony because the defendant did not testify at trial in his own behalf. The United States Supreme Court reversed the conviction because the defendant had been compelled to choose between constitutional rights. Justice Black in a rare dissent to overturning a conviction on constitutional grounds, stated: “The consequence of the Court’s holding, it seems to me, is that defendants are encouraged to come into court, either in person or through other witnesses, and swear falsely that they do not own property, knowing at the very moment they do so that they have already sworn precisely the opposite in a prior court proceeding. This is but to permit lawless people to play ducks and drakes with the basic principles of the administration of criminal law. . . . While our Constitution does provide procedural safeguards to protect defendants from arbitrary convictions, that governmental charter holds out no promises to stultify justice by erecting barriers to the admissibility of relevant evidence voluntarily given in a court of justice. Under the first principles of ethics and morality a defendant who secures a court order by telling the truth should not be allowed to seek a court advantage later based on a premise directly opposite to his prior solemn judicial oath.” Id. at 398-399.

In short, the Fourth Amendment has a focus and established jurisprudence that differs from the Fifth Amendment. The priorities of the Fifth Amendment were fully satisfied in the case sub judice. Therefore, Simmons v. United States, supra, a Fifth Amendment case, is distinguishable as a matter of fact and law. There should be no attempt to superimpose the jurisprudence of one on to a case arising under the other, because the Amendments drastically differ. The United States Supreme Court has recognized that the limited use immunity applied in Simmons v. United States, supra, should be limited to Fourth Amendment cases and has declined to extend the scope of such holding. In United States v. Salvucci, 448 U. S. 83, 94 (100 SC 2547, 65 LE2d 619) (1980), the Court held: “[principally, respondents assert that the prosecutor may still be permitted to use the defendant’s testimony to impeach him at trial. This Court has not decided whether Simmons precludes the use of a defendant’s testimony at a suppression hearing to impeach his testimony at trial. But the issue presented here is quite different from the one of whether ‘use immunity’ extends only through the Government’s case-in-chief, or beyond that to the direct and cross-examination of a defendant in the event he chooses to take the stand. That issue need not be and is not resolved here, for it is an issue which more aptly relates to the proper breadth of the Simmons privilege, and not to the need for retaining automatic standing.” Id. at 93-94. The court allowed the impeaching testimony and upheld the conviction. In the case sub judice, appellant’s assertions cannot help but bring to mind the Court’s holding in United States v. Kahan, supra at 243: “[t]he protective shield of Simmons is not to be converted into a license for false representations on the issue of indigency free from the risk that the claimant will be held accountable for his falsehood. Cf. Harris v. New York, [supra].” Harris v. New York, supra at 226, held that the Miranda shield “cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” See also State v. Byrd, supra at 667.

Decided April 9, 1997.

Before Judge Loggins.

Frank B. Perry & Associates, Michael E. Brush, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael J. Moeller, Christopher A. Arnt, Assistant District Attorneys, for appellee.

Having previously found that the statements were voluntarily made and admissible, the trial court was under no duty to instruct the jury that they could only consider the appellant’s testimony from the Jackson-Denno hearing for purposes of impeachment only, because the jury was free to consider such evidence to determine guilt. The trial court did not err in admitting such relevant and probative admissions by appellant, who had waived his right against self-incrimination by testifying in his own behalf. “It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. [Cits.] It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. [Cits.] Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.” (Emphasis supplied.) McGautha v. California, 402 U. S. 183, 215 (91 SC 1454, 28 LE2d 711) (1971).

The trial court did not err in the evidentiary ruling.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0843.
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. CARROLL.
    (486 SE2d 613)
   Eldridge, Judge.

On August 26, 1992, appellee, Elsie C. Carroll, a 75-year-old woman, stopped at a Unocal service station in Decatur, DeKalb County, Georgia to get gasoline. Appellee parked her car several feet from the concrete island with the gasoline pumps. Appellee pumped her own gas. After appellee completed her purchase, and opened the car door to get inside, she saw a truck backing towards her. Appellee was afraid that she would be struck by the truck before she could get safely into her car; she began to back away from the truck along the side of her vehicle until she reached the rear of it; appellee then attempted to step onto the concrete island, while watching the approach of the truck. The truck struck appellee’s car on the rear driver’s side and, simultaneously, she fell backward into the gas pump and was injured. Appellee is not sure whether she fell because her car struck her after it had been hit by the truck, or because she tripped on the gasoline hose while attempting to get out of the way of the collision.

Appellant, United Services Automobile Association, was appellee’s automobile insurer, which policy had a medical coverage provision; appellee submitted a medical claim for her injuries which appellant refused to pay. After repeated demands to pay which were all refused, appellee sued appellant.

At trial, appellant attempted to impeach appellee by presenting prior inconsistent statements, made either to its claims adjuster shortly after the injury or on deposition, that her fall was caused by tripping over the gasoline hose prior to any attempt to enter her vehicle. Andrew Perles, the appellant’s claim representative who investigated appellee’s claim, testified that, based on the statement this 75-year-old elderly woman gave to him shortly after her injury, he did not believe that she had a claim. While appellee told him about various eyewitnesses, Perles believed that they had not seen anything, because appellee stated that the vehicles were between them; Perles never talked to any alleged eyewitnesses as part of his investigation. Two weeks later, appellee requested that appellant reconsider her claim for medical costs; Perles did so with his supervisor and house counsel, all of whom agreed that the claim was outside the medical coverage provision of the policy based upon the facts.

Appellee retained counsel and renewed her claim two years later. At that time Ms. Dora Jean Compton, an adjuster for appellant, reviewed the claim again with her manager and house counsel, and they again concluded that the claim fell outside the medical payments coverage. Appellee then filed suit against appellant.

On September 24, 1996, a jury returned a verdict for appellee against appellant. Judgment was entered on October 4, 1996, awarding appellee $22,190.55 in medical expenses, $21,000 in attorney fees, and $3,159.26 in litigation expenses.

1. The first enumeration of error is that the trial court erred in denying appellant’s motion for directed verdict on the issue of whether or not appellee was an occupant of her car at the time she was injured.

Under “PART B-MEDICAL PAYMENTS COVERAGE,” the policy reads: “[w]e will pay reasonable expenses of bodily injury: 1. Caused by accident; and, 2. Sustained by a covered person. ‘Covered Person’ as used in this Part means: 1. You or any family member: a) while occupying; or b) as a pedestrian when struck by; a motor vehicle designed for use mainly on public roads or a trailer of any type.” “Occupying” is defined in the policy as follows: “DEFINITIONS . . . ‘Occupying’ means in, upon, getting in, on, out or off.”

Major v. Allstate Ins. Co., 207 Ga. App. 805, 806 (1) (429 SE2d 172) (1993), upon which appellant relies, is distinguishable from the case sub judice. Such case arose under OCGA § 33-7-11 (b) (1) (B) as to the definition of “insured” under the statute and under the policy; the issue was who was an “insured” for the purpose of uninsured motorist coverage. Even though the policy language was broader than the statutorily mandated language, the plaintiff still did not qualify. Under the facts of that case, the plaintiff intended to get into the car but had not commenced to do so by the actual physical act of opening the car door as in the case sub judice. Also in contrast, the case sub judice involves medical coverage for the named insured and comes under OCGA § 33-7-9, which mandates the statutory minimum requirements of vehicle insurance, i.e., “Vehicle insurance is insurance against loss . . . from any hazard or cause,... or expense resulting from or incident to ownership ... or use of any such vehicle .. . against accidental death or accidental injury to individuals, including the named insured, while in, entering, alighting from, adjusting, repairing, cranking, or caused by being struck by a vehicle . . . and provisions of medical . . . benefits to injured persons . . . when issued as an incidental coverage with or supplemental to liability insurance.”

The holding in State Farm &c. Ins. Co. v. Holmes, 175 Ga. App. 655, 656-657 (333 SE2d 917) (1985), is persuasive in interpreting what “occupancy” means within the mandate of OCGA § 33-7-9, although the case was decided under former OCGA § 33-34-2 (8). In the case sub judice, appellee had commenced the physical act of entering the car by opening the door and had physical contact with the vehicle when she was forced to abandon the entry by the sudden peril. “The court in Partridge [v. Southeastern Fid. Ins. Co., 172 Ga. App. 466, 467 (323 SE2d 676) (1984)], recognized that ‘occupancy has been extended beyond physical presence in the vehicle in voluntary self-removal or alighting cases [cit.]. . . .’ Thereafter, the court held that one ‘remains an occupant of the car from which [she] is ejected until [she] is able to remove [herself] to a neutral zone or is removed to a neutral zone. . . .’ [Cit.] Further, the time interval between ejectment and such removal is not material. As in Partridge, [appellee] encountered a perilous situation while driving and, thus, [was] ‘occupying’ [her] car. The ensuing emergency provided [her] a choice: [entering into] the car and being [hit], in which case [she] would certainly qualify as an ‘occupant,’ or [abandoning her attempt to enter] the car in an attempt to reach safety. While it is clear that [appellee] did not [continue the attempt to enter her] car, we view [her] efforts to escape the peril at hand by [abandoning the attempt to enter] the car and heading for safety — that ‘neutral zone’ described in Partridge — as one unbroken chain of events constituting the immediate act of [entering] the car. That [she] was [unable to complete the process of entering the car and was forced to retreat] a small number of feet beyond is immaterial. As in Partridge, [she] remained an occupant of the car until [she] could reach a neutral zone or could be removed to one. Therefore, [appellee was] not precluded from recovery of [medical] benefits and [appellant] was not entitled to directed verdict as a matter of law.” State Farm &c. Ins. Co. v. Holmes, supra at 656-657.

In addition, whether or not appellee was occupying the car, there existed a material issue of fact as to whether or not appellee was a “pedestrian” who was struck by a vehicle within the policy provisions. There was evidence that appellee was struck either by her own car being knocked into her by the truck or struck by the truck while she stood outside her car, which could make her a “pedestrian” within the policy coverage. See generally Hardy v. Valley Forge Ins. Co., 165 Ga. App. 494, 495 (301 SE2d 671) (1983); Clinton v. Nat. Indem. Co., 153 Ga. App. 491, 494 (3) (265 SE2d 841) (1980).

“ ‘(O)n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment’ (Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746) [(1982)]); likewise, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 184 (129 SE2d 408) [(1962)]. The standard for review of a directed verdict and a judgment n.o.v. are the same: ‘Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) [(1983)]. And, ‘ “(t)he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard.” ’ F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6).” Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) (1991). Thus, we find that the trial court did not err in denying the motion for directed verdict.

2. The second enumeration of error is that the trial court erred in denying appellant’s motion for directed verdict on whether or not appellant denied appellee’s claim in bad faith.

Under OCGA § 33-4-6, “bad faith” of the insurer means a frivolous and unfounded refusal to pay a claim. Dixie Constr. Products v. WMH, Inc., 179 Ga. App. 658 (347 SE2d 303) (1986). There was no question of law in the case sub judice, because appellee clearly came within the definition of “pedestrian” and also came within the definition of “occupier” of the vehicle. See generally Brown v. Seaboard Lumber &c. Co., 221 Ga. 35 (142 SE2d 842) (1965).

Mr. Perles, the claims examiner, failed to talk to the eyewitnesses and instead relied solely upon the statement of the insured, an injured, elderly woman, because such limited statement, without questions that explored the presence or absence of a factual basis for coverage, seemed to exclude coverage but, in fact, did not rule out coverage. Perles quickly assumed the absence of covérage because he believed that appellee slipped and fell without contact with either her vehicle or the truck; Perles made no attempt to clarify the facts as stated by appellee. Ms. Compton, the claims adjuster for appellant, also failed to talk to eyewitnesses, because she felt the statement of appellee, alone, excluded coverage.

The insurer did not have reasonable grounds to exclude coverage based upon a claim that was not completely investigated. Appellant stubbornly continued to decline to pay, without investigation, even after the commencement of litigation. See Central Manufacturers Mut. Ins. Co. v. Graham, 24 Ga. App. 199 (99 SE 434) (1919); see generally Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993); Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 355 (3) (395 SE2d 851) (1990).

The trial court did not err in denying the motion for directed verdict in the face of evidence from appellant’s employees that no thorough investigation had been made prior to the denial of the claim. See Pendley v. Pendley, supra; Colonial Life &c. Ins. Co. v. McClain, 150 Ga. App. 883 (258 SE2d 655) (1979); North British &c. Ins. Co. v. Mercer, 90 Ga. App. 143 (82 SE2d 41), aff’d, 211 Ga. 161 (84 SE2d 570) (1954).

3. The third enumeration of error is that the trial court erred in charging the jury that appellee remained an occupant of her car until she was able to reach a neutral zone.

Under State Farm &c. Ins. Co. v. Holmes, supra, extending Partridge v. Southeastern Fid. Ins. Co., supra, the charge was a correct statement of the law, adjusted to the facts and circumstances of the case.

“A contract of insurance should be strictly construed against the insurer and read in favor of coverage in accordance with the reasonable expectations of the insured. Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291 (265 SE2d 102) (1980).” Roland v. Ga. Farm &c. Ins. Co., 265 Ga. 776, 778 (462 SE2d 623) (1995).

Decided April 9, 1997.

Before Judge Castellani.

Saveli & Williams, John C. Parker, Vincent A. Toreno, for appellant.

The trial court did not err in giving the charge.

4. The fourth enumeration of error is that the trial court erred in charging the jury that appellee’s policy of automobile insurance must be construed strictly against the insurer.

The policy language deviated from OCGA § 33-7-9 and was ambiguous; therefore, the charge was a correct statement of law. Roland v. Ga. Farm &c. Ins. Co., supra at 778; Nat. Union Fire Ins. Co. v. Prestige Helicopters, 217 Ga. App. 375 (457 SE2d 587) (1995).

5. The final enumeration of error is that the trial court erred in allowing the issue of litigation expenses to go to the jury; appellant challenges the trial court’s charge to the jury and the form of the verdict thereon.

The appellant timely excepted to the verdict form prior to its submission to the jury. Appellant also excepted to the charge on litigation expenses for bad faith denial of benefits.

OCGA § 33-4-6 specifically provides for “all reasonable attorney’s fees for the prosecution of the action against the insurer,” when the insurer denies a claim in “bad faith.” OCGA § 13-6-11 provides for the recovery of the expenses of litigation, including attorney fees, when the defendant has acted in “bad faith,” either during or subsequent to the transaction. However, general penalty provisions under OCGA §§ 13-6-11; 33-4-6; and 51-12-5.1 cannot be recovered where the General Assembly specifically has provided a procedure and a penalty for non-compliance. McCall v. Allstate Ins. Co., 251 Ga. 869, 871-872 (2) (310 SE2d 513) (1984). OCGA § 33-4-6 is the exclusive remedy for bad faith denial of benefits so that litigation expenses under OCGA § 13-6-11 are not recoverable. Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (2) (448 SE2d 275) (1994). Therefore, the portion of the judgment awarding expenses of litigation is set aside, and that portion of the judgment is hereby vacated and remanded.

Judgment affirmed in part and vacated in part.

Birdsong, P. J., and Ruffin, J., concur.

Alembik, Fine & Callner, Heidi K. Martin, Mark E. Bergeson, for appellee.


author: Judge Harold R. Banke.

text:
    A97A0271.
    SMITH v. THE STATE.
    (485 SE2d 538)
   Judge Harold R. Banke.

James Bernard Smith was convicted of possession of marijuana with intent to distribute and criminal trespass. In his sole enumeration of error, he challenges the sufficiency of the evidence supporting both charges.

The evidence, viewed in the light most favorable to the verdict, reveals the following. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). This case arose after the victim’s neighbor heard someone breaking into the apartment next door around 10:30 p.m. After hearing the door open, she looked out the peephole in her door and saw a shirtless black man of medium to heavy build with a bluish towel wrapped around his head walking quickly down the stairs to the parking lot. He was carrying something white in his arms. The neighbor called the police. She reported her observations and described her view of the parking lot, where she saw a man matching the description she had given sitting in an older blue Honda with the door propped open.

The police arrived within two or three minutes, knocked on the car’s dark tinted window, and discovered a reclining shirtless black male who was later identified as Smith. When asked what he was doing there, Smith responded that he was meeting a man named Neil. After officers ran Smith’s tag and discovered that the decal was stolen, they arrested him.

One of the officers investigated the victim’s apartment and discovered that the door had been chiseled open, with fresh wooden chips scattered on the floor. When officers asked Smith about the break in, he gave them the victim’s name (which was not Neil) and telephone number and stated they were supposed to meet that evening. Eventually the victim was reached at that number and summoned home.

When the officers initially searched the car, they discovered a hammer, a screwdriver, a large bluish towel, and what appeared to be an unopened can of beer. Smith subsequently gave written consent to search the car. During this second search, detectives discovered a small electronic scale in a case with a razor blade behind the sun visor, a mirror in the back seat, a television remote control on the floor board, numerous small plastic baggies, and a white teddy bear. After a closer look at the beer can, the detectives realized it had a false top. Inside, they found three clear plastic baggies containing a total of 1.5 grams of marijuana. When the victim arrived later, he identified the towel, the remote control and the bear as his. Smith denied knowledge of the marijuana and stated that the scales belonged to a friend. Held:

1. The evidence was sufficient to allow the jury to find all the essential elements of the misdemeanor of criminal trespass. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-21 (b), (c). That crime requires proof of the knowing entry without authority into the premises of another for an unlawful purpose. OCGA § 16-7-21 (b) (1). The evidence that the door was chiseled open, a man matching Smith’s description left the building shortly thereafter, and chiseling tools and the victim’s belongings were found in Smith’s car is sufficient to satisfy Jackson v. Virginia.

2. Whether the evidence was sufficient to support the drug charge presents a more problematic question due to the minimal amount of marijuana seized. The State is required to prove more than mere possession to support a conviction for possession of contraband with intent to distribute. Dyer v. State, 218 Ga. App. 879 (1) (463 SE2d 718) (1995). In other cases, the State has satisfied this burden with such indicia of intent to distribute as scales, plastic bags, and the fact that the contraband was stored in a number of small packages. Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991); Wright v. State, 154 Ga. App. 400, 401-402 (1) (268 SE2d 378) (1980).

Here, the evidence supporting the charge consisted of numerous baggies, scales, and the three small bags of marijuana containing a total of 1.5 grams. On cross-examination, one of the officers testified that the marijuana was packaged in what were commonly called nickel bags, meaning each bag sold on the street for $5. This testimony provided evidence that although the amount of marijuana was small, it had been packaged for sale. This testimony augmented the State’s contention that the number of baggies containing marijuana provided evidence of Smith’s intent to distribute. Although the officer was not qualified as an expert on drug matters and in fact admitted that his specialty was car theft, the defense elicited this testimony and did not object to it. See Searcy v. State, 214 Ga. App. 620, 621 (4) (448 SE2d 468) (1994); compare Stephens v. State, 219 Ga. App. 881, 882 (1) (467 SE2d 201) (1996) (physical precedent only). Thus, this testimony is not open to attack on appeal. Harper v. State, 249 Ga. 519, 532-533 (10) (292 SE2d 389) (1982).

Decided March 26, 1997

Reconsideration denied April 10, 1997.

Before Judge Gaines.

McArthur & McArthur, John J. McArthur, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

This evidence, viewed in a light most favorable to the verdict, would permit the jury to find each essential element of the crime. Jackson v. Virginia, 443 U. S. at 319-320. After proper instruction, the jury rejected the option of convicting on the lesser included offense of simple possession. Because we are not authorized to reweigh the evidence and Smith no longer enjoys a presumption of innocence, we must affirm. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       Smith was charged with burglary, but convicted of criminal trespass as a lesser included offense.


text:
    A97A0688.
    INTEGON GENERAL INSURANCE CORPORATION v. GIBSON.
    (485 SE2d 576)
   Eldridge, Judge.

On August 9, 1991, Carolyn S. Fairfax and appellee Eugene Gibson purchased a 1989 Chevrolet Silverado pick-up truck (“vehicle”), Vehicle Identification Number 1GCDC14K2166710, from Charlie Pike Chevrolet-Buick, Inc. (“Pike”), which is located in Warner Robins, Georgia. The purchase was financed by the seller pursuant to the provisions of a finance contract between appellee, Fairfax, and the seller. That contract shows Fairfax as “Buyer,” and appellee as “Co-Buyer” and holds both individuals jointly and severally liable for the note. The vehicle was given as security for the note. The finance contract between appellee, Fairfax, and the seller was assigned to General Motors Acceptance Corporation (“GMAC”).

Appellant Integon General Insurance Corporation issued a policy of insurance to appellee on the vehicle, policy no. SAG 8067060, which was effective February 28, 1994 through February 28, 1995, and which showed GMAC, the secured creditor, as loss payee. The named insured was the appellee, and the declaration pages showed Eugene Gibson and Gwendolyn S. Gibson as drivers. Fairfax’s name does not appear on the policy as an insured or otherwise.

On July 11, 1994, the vehicle was stolen. Appellee reported this loss to appellant on or about July . 12, 1994. Appellant investigated the loss and determined the value of the vehicle at the time of the loss to be $6,9004 In a letter dated November 2, 1994, appellant, contending that appellee had insured only his one-half property interest in the vehicle, offered appellee 50 percent of its valuation, or $3,450. Appellee did not accept this offer. Appellant made this identical offer to appellee on three more occasions, April 17, 1995, April 26, 1995, and August 18, 1995. Appellee refused each of these offers.

On February 21, 1995, GMAC, the lienholder on the vehicle and loss payee on the policy, filed the complaint in the case sub judice against appellee and Fairfax, alleging breach of contract for their failure to make payments on the note. Both appellee and Fairfax filed timely answers, and appellee filed a counterclaim against GMAC. On July 20, 1995, appellee alone brought his third-party complaint against appellant. On June 23, 1995, appellant made an offer of settlement of the claim in the amount of $3,450 directly to GMAC, which offer was not accepted. When the respective offers were not accepted either by appellee or GMAC, appellant, pursuant to a consent order signed on August 19,1995, tendered $3,450 into the registry of the court, requesting that the funds be placed in an interest-bearing account.

On January 29, 1996, appellant filed a motion for partial summary judgment against appellee. On February 23, 1996, appellee filed his own motion for partial summary judgment. On March 11, 1996, GMAC filed a motion for summary judgment against appellee and Fairfax. All pending motions were heard by the trial court on May 21, 1996. On June 4, 1996, the trial court entered an order granting GMAC’s motion for summary judgment. However, the trial court on June 21, 1996, entered an order staying the enforcement of that order, pending resolution of appellee’s and appellant’s mutual motions for partial summary judgment. On August 29,1996, the trial court issued an order granting appellee’s motion for partial summary judgment and simultaneously denying appellant’s motion for partial summary judgment. Notice of this order was sent in an untimely fashion to appellant, which error the trial court remedied by vacating and re-entering the order on October 3, 1996. It is from this order that appellant appeals.

1. In four enumerations of error, appellant alleges that the trial court erred as a matter of law in determining that appellee’s interest in the vehicle was in the preservation of the vehicle as a whole; that, therefore, his insurable interest in the vehicle equaled 100 percent of the value of the vehicle; and that appellant, as appellee’s insurer, was liable for the entire amount.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

OCGA § 33-24-4 (a) defines “insurable interest” as “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” Subsection (c) further specifies that the measure of recovery for that interest “is the extent to which the insured might be damnified by loss, injury, or impairment of such interest in such property.” “ ‘Title is not the sole test for determining an insurable interest. It is sufficient if the insured holds such a relation to the property that its destruction . . . would result in pecuniary loss to him. The test of insurable interest in property is whether the insured has such a right, title, or interest therein, or relation thereto, that he will be benefited by its preservation and continued existence, or suffer a direct pecuniary loss from its destruction or-injury by the peril insured against.’ (Citations and punctuation omitted.) Allstate Ins. Co. v. Thompson, 164 Ga. App. 508, 509 (297 SE2d 520) (1982). See Pike v. American Alliance Ins. Co., 160 Ga. 755, 760-61 (129 SE 53) (1925).” Ga. Farm Bureau Mut. Ins. Co. v. Smith, 179 Ga. App. 399, 402 (1) (346 SE2d 848) (1986); see also American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 653 (239 SE2d 543) (1977). This Court has held that, even if one does not have title to property, if he is indebted on such property and the property stands as security for such indebtedness, he has an insurable interest. Employers Fire Ins. Co. v. Pennsylvania Millers Mut. Ins. Co., 116 Ga. App. 433 (157 SE2d 807) (1967); see also Mathis v. Rock Springs Wholesale Co., 157 Ga. App. 726 (278 SE2d 484) (1981) (a person without title to property who is secondarily liable on a note for which such property stands as security has an insurable interest therein).

Although appellee was listed as “Co-Buyer” of the vehicle on the finance contract and held title to the vehicle with another, his insurable interest is not limited to his one-half ownership. Under the terms and conditions of the note, he was jointly and severally liable for the entire debt upon which the vehicle was given as security. Therefore, appellee’s interest in the vehicle was in the preservation of the vehicle as a whole, and appellee’s insurable interest in the vehicle equaled 100 percent of its value. Appellee was required under the terms of the note to obtain physical damage insurance covering loss or damage to the vehicle as a whole for the term of the note, which appellee sought to obtain from appellant. Appellant knew that GMAC held a security interest in the vehicle and, therefore, was aware of appellee’s interest in the preservation of the vehicle as a whole when it entered into the contract of insurance with appellee. This is evidenced by appellant listing GMAC as the loss payee on such contract of insurance. Therefore, appellant, as insurer of the vehicle, is liable to appellee for the entire value of the vehicle.

Decided April 3, 1997

Reconsideration denied April 10, 1997

Before Judge Culpepper.

Drew, Eckl & Farnham, Clayton H. Farnham, Charles L. Norton, Jr., for appellant.

Groover & Childs, W. Thomas Griffith, McCullough & Payne, Gregson T. Haan, Nancy A. Atkinson, for appellee.

2. Appellee’s motion for frivolous appeal is denied.

Judgment affirmed.

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

       An issue of fact exists as to the exact value of the vehicle. Appellant claims the value of the vehicle at the time of the loss to be $6,900, while appellee claims such value to be $12,000. However, the value of the vehicle was not an issue before the trial court on the respective motions for partial summary judgment.

       The case sub judice can be distinguished on the facts from the case of Shield Ins. Co. v. Kemp, 117 Ga. App. 538 (160 SE2d 915) (1968), cited by the appellant. In Shield Ins. Co., the contract of insurance specifically stated that it insured only “to the extent of the actual cash value of the property at the time of loss but not exceeding (the cost of repair or replacement) nor in any event for more than the interest of the insured. . . .” (Emphasis in original.) Id. at 539 (2). Such limiting language is not present in the policy of insurance presently before this Court.


text:
    A97A0185.
    RIDINGS v. THE STATE.
    (486 SE2d 378)
   Judge Harold R. Banke.

Mark Ridings was convicted of armed robbery. On appeal, Ridings enumerates two errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). Several days before the robbery at issue, Ridings and his two co-defendants, Kenneth McClellan and Charlie Bates, discussed getting a gun and committing a robbery. To that end, Ridings drove McClellan to a friend’s house where McClellan took a 20 gauge shotgun. McClellan sawed off the gun’s barrel at Ridings’ house.

Ridings, Bates and McClellan drove around, looking for prospective victims. After driving past Newman’s Grocery several times, the men decided that McClellan would rob it, while Ridings and Bates waited on the nearby interstate, pretending to have car trouble. Ridings drove up to the store and he and Bates went in to purchase drinks and see who was there.

After learning that a female clerk was alone in the store, McClellan went in and robbed her of approximately $75 at gunpoint and then ran to Ridings’ car waiting on the interstate. The three men then bought some beer and drove to Bates’ mother’s house. After they arrived, Bates’ mother told them the law had been riding by her house and asked them to leave for a while. The next day, at McClellan’s request, Ridings hid the clothing and mask worn during the robbery. During an investigation of another matter, Bates told police officers about the robbery. Held:

1. The evidence was sufficient to permit the jury to find that Ridings was a party to the crime of armed robbery. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). OCGA § 16-2-20 (b) (3). Although Ridings did not enter the store and brandish the gun, the evidence showed that he and McClellan discussed the crime, he drove McClellan to get the gun, allowed McClellan to saw off the gun at his home, drove the getaway car, and disposed of some of the clothing worn during the robbery. Such assistance renders Ridings equally accountable for the crime. Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986).

Notwithstanding Ridings’ argument to the contrary, his conviction was not premised solely upon the uncorroborated testimony of his co-defendant, McClellan. In fact, Ridings gave a statement to police in which he admitted participating in the crime. Under the evidence presented, the jury was authorized to reject testimony that McClellan coerced Ridings’ participation because Ridings had ample opportunity to leave McClellan and report him to authorities rather than wait while he robbed the store. See Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d 168) (1989).

2. We reject Ridings’ contention that the trial court invaded the jury’s province by giving an Allen-type charge. Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). The record shows that after the jury had deliberated for some time, the court inquired as to its progress. Upon learning that it was divided eleven to one, the court sua sponte gave the charge. Ridings made no objection. Nor did he move for a mistrial. The jury continued deliberating and requested and received a recharge on coercion before reaching its verdict. Pretermitting whether Ridings preserved the issue for appeal, under these circumstances, we cannot say the trial court abused its discretion. See Clifford v. State, 266 Ga. 620, 622 (4) (469 SE2d 155) (1996); accord Curry v. State, 175 Ga. App. 758, 759 (3) (334 SE2d 356) (1985).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided April 10, 1997.

Before Judge Keeble.

Kenneth D. Teal, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A97A0302.
    ARANDA v. THE STATE.
    (486 SE2d 379)
   Beasley, Judge.

After a stipulated bench trial, Aranda was convicted on one count of trafficking in cocaine by possessing more than 400 grams with a purity of more than ten percent. OCGA § 16-13-31 (a) (1) (C). He enumerates four errors in the court’s denial of his motion to suppress evidence seized, in what he contends was a search violative of the Fourth Amendment to the United States Constitution. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

Agent Johnson of the Drug Enforcement Administration and Sergeant Hogan of the Fayette County Sheriff’s Department had received information that Aranda had purchased a one-way airplane ticket from Los Angeles to Atlanta shortly before take-off with cash, behavior sometimes indicative of a drug courier. Johnson had worked on the airport drug task force for approximately 12 years and knew Los Angeles as “a drug-source city.” The officers identified Aranda’s lone piece of luggage, a small tote bag, before it was placed in the baggage claim area. When Aranda retrieved the bag the officers approached him, identified themselves, and asked to speak with him, to which he agreed. Johnson asked to see his ticket, and Aranda gave it to him. Johnson asked if his name was Abel Aranda, the name on the ticket, and he responded ‘Yes, it is.” Johnson returned the ticket and asked for identification. Aranda produced a California driver’s license. Johnson returned it and spoke with Aranda about his travel plans. Almost from the first, Aranda appeared nervous and began sweating and shaking. Johnson said he and Hogan were looking for drugs being brought through the area and asked if “you mind consenting to a search of your person and your checked bag here?” Aranda said it was “okay.”

A search of the bag produced no drugs but Johnson concluded the bag did not contain enough clothes for the one-week visit Aranda said he was making to Atlanta. When Johnson put the bag down, Hogan asked if he could perform a “pat down” of Aranda’s “outer clothing” and said he was not under arrest. Aranda again said “okay” and continued to appear nervous; he was pale, his knees shook, and he visibly slumped. Hogan patted him down and detected through his shirt something that felt like cardboard, “definitely something out of the ordinary.” Hogan asked what it was but Aranda looked down and either did not respond or said “nothing.” His mouth dropped open and his nose bore perspiration. Hogan looked into the shirt, saw something he could not identify, and unbuttoned the shirt, revealing packages of cocaine strapped to Aranda’s body.

Aranda testified that his driver’s license was never returned to him, that he had given consent to a search of his bag but not his person, and that when he was asked if it was okay to pat him down, he made no response. He said he did not leave because the officers held his driver’s license, had him “surrounded,” and “[t]hey knew everything.”

1. Aranda contends the court should have held that the officers’ approach and questioning of him was a seizure within the meaning of the Fourth Amendment. “ ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.’ [Cit.]” In the Interest of S. B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993). The court ruled that the encounter was of the first type, a police-initiated engagement in conversation which progressed to a consensual search for evidence of a crime.

This was not error. “ ‘ “(A) person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating compliance with the officer’s request might be compelled. (Cits.) In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. . . .” [Cit.]’ [Cit.]” State v. Jackson, 201 Ga. App. 810, 814 (2) (412 SE2d 593) (1991). “It is clear . . . that merely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not be supported by an articulable suspicion. ‘Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, (cits.); ask to examine the individual’s identification, (cits.); and request consent to search . . ., (cit.) — as long as the police do not convey a message that compliance with their requests is required.’ [Cit.]” (Emphasis in original.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

Contrary to Aranda’s contention, this is not a case in which the suspect had been seized by the removal of his ticket or identification. Johnson testified Aranda’s ticket and driver’s license were promptly returned. Even Aranda’s testimony, if believed, does not show circumstances that would create a seizure. Unlike the evidence in United States v. Elmore, 595 F2d 1036, 1039-1042 (5th Cir. 1979), Aranda did not testify the officers removed either his ticket or license from the immediate vicinity.

The officers’ conduct was not offensive or overbearing. What governs is not whether Aranda subjectively thought he was not free to leave but rather whether a reasonable person would have believed such, given the conduct of the officers and the surrounding circumstances. The court did not err in finding the encounter did not constitute a seizure. As such, reasonable suspicion was not required as support for the encounter under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

2. Aranda also contends the search exceeded the extent of any consent to a patdown search of his outer clothing. He bases this on Hogan’s testimony that, just before performing the patdown, he told Aranda it would not be “a very detailed search,” it would be “just a patdown of his outer clothing” and Aranda argues that the officers had no specific consent to go inside his shirt.

Johnson’s testimony was that Aranda consented to a search of his person and bag before either was searched. That Hogan asked for patdown consent before placing his hands on Aranda does not eliminate or narrow Aranda’s earlier, more general consent to a search of his person. “ £A consent search is one undertaken with knowledge and without objection by the defendant. Once consent is legally obtained, it continues until it is either revoked or withdrawn. [Cit.]’ [Cit.]” Woods v. State, 258 Ga. 540, 542 (2) (371 SE2d 865) (1988). “At no time did [Aranda] Verbalize’ a withdrawal of the consent he had given.” Ortiz v. State, 189 Ga. App. 428, 429 (375 SE2d 891) (1988). Neither did he do anything which signalled a withdrawal.

Even if consent was limited to a patdown, investigating the suspicious cardboard-like object which the officer felt under Aranda’s shirt would not surpass the scope of that search. The consent given did not restrict the patdown to one for weapons. See Rolle v. State, 198 Ga. App. 507, 509 (2) (402 SE2d 106) (1991). This was not a patdown for weapons as a precaution for the officers’ safety. They told Aranda they were narcotics officers looking for drugs and asked for his consent to search in pursuit of that goal. He gave it.

Decided April 10, 1997.

Before Judge Kilpatrick.

Richard Genirberg, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

This is not to say that, absent consent, the invasion beyond the outer clothing to the point at which suspected cocaine powder was “plainly seen” in a plastic bag would have met constitutional muster. Feeling “something like cardboard” did not equate to touching an object whose identity as contraband is immediately apparent. See Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993); Seaman v. State, 214 Ga. App. 878, 879-880 (2) (449 SE2d 526) (1994).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A0352.
    In the Interest of J. L. P., a child.
    (486 SE2d 387)
   Eldridge, Judge.

A complaint was filed in the Juvenile Court of Newton County on January 2, 1996, charging appellant, J. L. R, a child, with four delinquent acts which occurred on December 31, 1995, in Newton County: auto theft; theft by taking; entering an auto; and escape from detention. Appellant had been placed with Project Adventure, Inc. in Newton County, as his legal custodian; Project Adventure, Inc. was also the victim of the delinquent acts. Appellant, who lived in Bleckley County with his mother, was apprehended in Terrell County for hit and run on December 31, 1995. Thereafter, he was detained in Albany Regional Youth Development Center (RYDC) in Dougherty County.

A petition was filed on January 23, 1996, with the Juvenile Court of Newton County on these charges, styled as case no. 96J00013. In petition no. 96J00014, appellant was charged with a simple assault which had occurred on November 3, 1995; in petition no. 96J00015, he was charged with two counts of simple assault which had occurred on November 2, 1995; these additional petitions were also filed on January 23, 1996. A summons and a notice for an adjudicatory hearing were issued on the same day, January 23, 1996 and addressed to appellant at the Albany RYDC for a hearing set for February 5, 1996 which was more than ten days but less than sixty days after the petition was filed; however, no production order or detainer order was ever filed or served on the Albany RYDC commanding appellant’s detention and transportation to Newton County at that time. No hearing was held on that date, apparently because appellant had not been brought there.

The Juvenile Court of Newton County issued an order directed to the Albany RYDC and dated February 27, 1996, which stated that appellant was “not being held for Newton County and [appellant] may be released in that this Court does not have a hold on [him].” The order was faxed to the Albany RYDC. On February 28, 1996, the Juvenile Court of Newton County issued another order directing that appellant be “held at the Gwinnett RYDC pending a 72 [hour detention] hearing to be held on Monday, March 4, 1996, at 10:00 a.m., at the Juvenile Court of Newton County,” which order was faxed to the Albany and Gwinnett RYDCs. On March 4, 1996, a detention order issued and a hearing was set for March 11, 1996; appellant was ordered detained as an escape risk. On March 7, 1996, the Juvenile Court of Newton County received a report from the Juvenile Court of Terrell County setting out the delinquent acts which had occurred in that county on December 31, 1995, i.e., driving without a license and leaving the scene of an accident.

The March 11, 1996 hearing was continued by appellant’s counsel due to a death in her family. A continuance and detention order dated March 11, 1996 reset the hearing until March 25, 1996. The prosecution obtained a continuance on March 25, 1996, upon a legal showing that a material witness was subpoenaed in two cases in the Superior Court of Terrell County, and, by order, the hearing was continued until April 1, 1996.

On June 24, 1996, the Juvenile Court of Newton County dismissed petitions 107-96J00014 and 00015 against appellant. On April 1, 1996, the Juvenile Court of Newton County entered another detention order that appellant continue to be held in the Gwinnett RYDC.

On March 4, 1996, defense counsel filed a motion to dismiss the petition against appellant for failure to conduct a 72 hour detention hearing pursuant to OCGA § 15-11-21. A hearing on the petition was scheduled for March 11, 1996, but was continued twice as described. The hearing on the petition was finally conducted on July 8, 1996; appellant was found delinquent on all four acts and was transferred to the Juvenile Court of Bleckley County for disposition under OCGA § 15-11-16 (b). After the disposition hearing, appellant was committed to the Department of Children & Youth Services. Appellant then filed his notice of appeal.

Also before the court was appellant’s previous juvenile history, which included the following information: the Juvenile Court of Bleckley County found appellant delinquent on August 12, 1993, for an April 29, 1993 battery in which appellant struck another child in the head with a rock, causing substantial bodily injury; on February 22, 1994, a petition of delinquency for shoplifting on February 19, 1994 was filed against appellant; on March 28, 1994, appellant was placed on probation for such offense; on November 14, 1994, a petition was filed against appellant for theft of a motor vehicle on November 1,1994, and violation of probation for which appellant was ordered detained on November 3, 1994; on April 21, 1995, the Juvenile Court of Bleckley County placed appellant on probation; on May 12, 1995, a petition was filed against appellant for burglary and criminal damage to property on April 26, 1995; on May 12, 1995, a petition was filed against appellant for two counts of child molesting; on June 28, 1995, the Juvenile Court of Bleckley County adjudicated appellant guilty of criminal trespass, criminal damage to property in the second degree, and sexual battery, and the court ordered appellant committed to the Georgia Department of Children & Youth Services.

No transcript of any of the hearings was filed. No motion to dismiss for failure to timely hold the adjudicatory hearing under OCGA § 15-11-26 (a) was ever filed or ruled upon by the trial court, and there is no transcript showing that an oral motion was made and ruled upon.

1. Appellant’s first enumeration of error is that a detention hearing was not held within 72 hours of his being taken into custody, as mandated by OCGA § 15-11-21.

The Terrell County Sheriff’s Department took appellant into custody for a hit and run accident and driving without a license; the deputies also learned that appellant had escaped from custody in Newton County, where he had stolen the vehicle which was wrecked. OCGA § 15-11-17 (a) (3) provides that a law enforcement officer can take a child into custody if there are reasonable grounds to believe that the child has committed a delinquent act. See In re J. D. M., 187 Ga. App. 285, 287 (2) (369 SE2d 920) (1988). Appellant had previously been adjudicated as delinquent in 1995; custody had been given to the Department of Children & Youth Services, which, in turn, had placed him in the custody of Project Adventure, Inc., from which appellant had escaped. Clearly, then, appellant was in the custody of the Department of Children & Youth Services both at Project Adventure, Inc. and the Albany RYDC, and not in detention pursuant to any action by the Juvenile Court of Newton County until the order of February 28, 1996, which ordered detention for Newton County, as well as production for a detention hearing.

Custody of appellant was taken from the family by the June 28, 1995 order of the Juvenile Court of Bleckley County and was placed in the Department of Children & Youth Services; the Department had custody and control over appellant at all times subsequent. Appellant could not be released to his parents under OCGA §§ 15-11-18 (3) and 15-11-19 (a) (1) because of the prior adjudication and custody order, as well as appellant’s extensive juvenile delinquency record; thus, appellant simply remained in the custody of the Department of Children & Youth Services, and not in detention pursuant to the statute.

In sum, and as a legal matter of custody, appellant was in the physical custody of the Department of Children & Youth Services prior to his escape and after his return to its custody at the Albany RYDC; thus, technically, appellant was not being detained within the meaning of OCGA §§ 15-11-17; 15-11-18; 15-11-18.1; or 15-11-19, because the Department of Children & Youth Services had been given custody of appellant by the Juvenile Court of Bleckley County on June 28, 1995. Appellant did not, as his argument suggests, suddenly become eligible for release from Department custody because he had escaped and had been recaptured; appellant’s subsequent return to Department custody, where he was supposed to be all along, was not transformed into “informal detention” pursuant to OCGA § 15-11-21 (c) so as to require a hearing within 72 hours after his recapture. The Department simply continued to exercise custody in holding appellant in its facility in the Albany RYDC. See In re J. D. M., supra at 288. Accordingly, there was no error pursuant to OCGA § 15-11-21 (c).

Further, absent a transcript of the proceedings on March 4, 1996, it must be presumed that the detention hearing was conducted correctly under OCGA § 15-11-21. See Morris v. State, 220 Ga. App. 633, 636 (469 SE2d 848) (1996); Powell v. State, 198 Ga. App. 509, 512 (402 SE2d 108) (1991). The petition had previously been filed on January 23, 1996, satisfying OCGA § 15-11-21 (e) in conformity with OCGA § 15-11-25.

2. The second enumeration of error was that the adjudication hearing was not scheduled within ten days of the filing of the petition as required under OCGA § 15-11-26 (a).

In the Interest of R. D. K, 266 Ga. 294 (1) (466 SE2d 572) (1996), held that OCGA § 15-11-26 (a) only requires that the adjudicatory hearing be scheduled during the applicable time limit and that it may be continued for legal cause or within the juvenile judge’s sound discretion. It also held that the failure to object timely, have a ruling, and preserve a record of such ruling was fatal to a claim of error under OCGA § 15-11-26 (a). “In the absence of a transcript, appellee has failed to establish that OCGA § 15-11-26 (a) was violated. See Irvin v. Dept. of Human Resources, 159 Ga. App. 101 (1) (282 SE2d 664) (1981). Therefore, dismissal of the delinquency petition was error.” In the Interest of R. D. F., supra at 297.

Having failed to preserve the enumeration of error for appeal, it is denied.

Decided April 10, 1997.

Before Judge West, pro hac vice. •

Celia Larsen, for appellant.

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

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur in the judgment only.


text:
    A97A0577.
    YOUNG v. HIGINGBOTHAM.
    (486 SE2d 382)
   Judge Harold R. Banke.

Teresa Higingbotham appeals the judgment entered in favor of Curtis B. Higingbotham. On appeal, she enumerates three errors, challenging the determination of her liability under the principle of partnership by estoppel. OCGA § 14-8-16.

In early June 1994, Curtis B. Higingbotham obtained a 60-day loan, the proceeds of which he provided in the form of a cashier’s check to Stan Higingbotham, his grandson. No promissory note or other written documentation of the loan was exchanged between them. In July 1994, in a purported effort to repay the loan, Stan Higingbotham wrote a check in the name of “Stan Higingbotham, D/B/A Higingbotham Construction.” The check, however, had been written on a closed account and was returned due to insufficient funds. Shortly thereafter, in September 1994, before repaying his grandfather, Stan Higingbotham died in an automobile accident. Curtis B. Higingbotham then instituted the underlying’ legal action against Deanna S. Young, the administratrix of the Estate of Stan Higingbotham and Teresa Higingbotham, Stan’s widow, to recover for the loan.

It is undisputed that Stan and Teresa Higingbotham married in 1989 and that Higingbotham Construction (“HC”) was begun in 1990 and was operated from their home. The evidence conflicted as to whether HC was a partnership or sole proprietorship. Deanna Young, the administratrix and decedent’s mother, who prepared her son’s tax returns for 1990, 1991, and 1992 admitted the returns were not filed as a partnership but as a sole proprietorship, except possibly for tax year 1991.

Teresa Higingbotham vigorously denied being a partner in HC or having an active decision-making role in its operation. She testified that she obtained credit and credit cards in her name due to her husband’s bad credit. It is undisputed that she and her husband had only one checking account, “Stan Higingbotham D/B/A Higingbotham Construction” from which they both paid personal bills and he paid most of the business bills. She testified she only wrote checks for HC when Stan expressly directed her to do so in his absence. HC’s contractors testified without exception that Stan was in total control of HC and, in fact, excluded Teresa from having knowledge of the business.

Teresa Higingbotham testified that after December 1993, Stan had serious financial problems with his business and borrowed money from her, his mother, sister, and his grandfather. According to her testimony, Stan had gambling and drug problems. She testified that shortly after Stan obtained the loan from his grandfather, he disappeared for two weeks with credit card receipts indicating he was in Mississippi and Louisiana. Gary Johnson, a friend of the decedent, confirmed that shortly after June 1994, he and Stan took a gambling trip to Biloxi, Mississippi. The day after Stan returned, Teresa moved out and subsequently filed for divorce on August 9. Teresa testified that when she filed for the divorce in August, she owed $38,000 to American Express and approximately $100,000 overall.

Although Curtis Higingbotham testified that it was his understanding that Stan intended to use the loan proceeds to complete the construction of some houses, he conceded that he had no personal knowledge of how Stan used the money and admitted that he never discussed the loan with Teresa Higingbotham. Teresa Higingbotham testified that she never saw any of the loan proceeds and that she had no personal knowledge as to whether or not the proceeds were infused into the business or were, in fact, used to complete houses.

After a bench trial, the trial court determined the estate and Teresa Higingbotham were jointly and severally liable to Curtis Higingbotham for the loan, plus interest. The trial court found that Curtis Higingbotham provided the loan to Stan Higingbotham for business use in HC. The trial court then premised Teresa Higingbotham’s liability on OCGA § 14-8-16 (a), concluding that she acted as a general partner in HC. The court determined that Teresa Higingbotham held herself out in a public manner as a partner in HC, acted in a manner consistent with her status as partner, and received benefits consistent with those of a partner in HC. Held:

In three enumerations of error, Teresa Higingbotham contends that the trial court erred in applying the principle of partnership by estoppel. She claims that the record contains no evidence that at the time Curtis Higingbotham extended the loan to his grandson, he detrimentally relied on her representation that she was a general partner of HC or that, in the alternative, she made representations in a “public manner” holding herself out as a partner. OCGA § 14-8-16 (a).

Pretermitting consideration of whether Teresa Higingbotham was, in fact, a partner, is the question of whether the unsecured loan at issue was within the scope of partnership business. Even assuming for the sake of argument that Teresa Higingbotham was a partner of HC and was “jointly and severally liable for all debts, obligations, and liabilities of the partnership,” the dispositive issue is whether the loan was a valid partnership debt of HC or a personal loan to Stan Higingbotham, individually. OCGA § 14-8-15 (a).

A partnership is not liable for a transaction of one partner outside the scope of partnership business. Brandt v. Eckman, 79 Ga. App. 47, 53 (7) (52 SE2d 665) (1949). “An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners in the partnership agreement, at the time of the transaction or at any other time.” OCGA § 14-8-9 (2). Partners are bound by the acts of another partner “only within the legitimate scope of the business of the partnership” (Emphasis in original.) Elliott v. Nat. Union Radio Corp., 68 Ga. App. 873, 875 (24 SE2d 705) (1943).

Curtis Higingbotham bore the burden of proving the debt was a valid obligation of the partnership and not his grandson’s personal debt, falling outside the scope of partnership business. This he failed to do. See, e.g., Borders v. Wright, 141 Ga. App. 878, 880 (1) (234 SE2d 708) (1977).

The record contains no proof that the loan proceeds were infused into the business. No checking account records or business statements were offered as evidence as to how Stan Higingbotham expended the funds. Nothing more than speculation about the funds’ disbursement supported Curtis Higingbotham’s claim. In the absence of evidence that the loan proceeds went into HC, consideration of whether Teresa Higingbotham was a partner or held herself as a partner or was estopped from denying partnership liability is inappropriate. See OCGA § 14-8-16 (a); Chambliss v. Hall, 113 Ga. App. 96, 98-99 (2) (147 SE2d 334) (1966). Inasmuch as the record fails to show any evidence that the debt was a valid partnership obligation, the judgment must be reversed. Compare Macon-Bibb County Indus. Auth. v. Central Ga. R. Co., 266 Ga. 281, 282 (1) (466 SE2d 855) (1996).

Decided April 10, 1997.

Before Judge Culpepper.

Hicks & Massey, William E. Hicks, Robert M. Gardner, Jr., for appellant.

O’Neal, Brown &.Sizemore, James M. Wootan, Kenneth M. Brock, for appellee.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.

       No copies of federal income tax returns were offered into evidence.

       In fact, Stan’s sister, Stephanie Patton, filed a materialman’s lien in September 1994, on which she denoted herself as “partner in d/b/a Higingbotham Construction Company.”

       The Estate of Stan Higingbotham did not enter an appeal.


author: Blackburn, Judge.

text:
    A97A0210.
    HEFFERNAN v. HOME DEPOT U.S.A., INC.
    (486 SE2d 51)
   Blackburn, Judge.

Peter Heffernan appeals from a jury verdict in favor of Home Depot U.S.A., Inc. (Home Depot) in his premises liability action. While Heffernan was a customer at a Home Depot store, a paint sprayer fell from a shelf and injured his shoulder. Heffernan contests the denial of his motion for new trial, the admission of certain evidence, and the trial court’s failure to give a requested jury charge. He also argues that the trial court erred in failing to automatically disqualify certain members of the jury panel.

1. Heffernan claims the jury’s verdict in favor of Home Depot is contrary to the evidence and strongly against the weight of the evidence. “However, where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” (Punctuation omitted.) Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993).

The evidence in this case indicates that the paint sprayer which injured Heffernan was stored on a recessed shelf five feet and ten inches from the floor. Heffernan, who is six feet tall, had no difficulty seeing or reaching the sprayer, and when he touched the hose on the sprayer, the unit fell from the shelf. Heffernan argues that the sprayer fell because it was improperly assembled by Home Depot, but he was unable to substantiate this position at trial. In addition to his assembly argument, Heffernan argues that the display itself was dangerous.

Home Depot presented testimony that the paint sprayer display had been inspected several times during the week prior to Heffernan’s accident, and that daily checks were done to see that displays were safely assembled and items on displays were stable. Signs were posted in the paint sprayer area warning customers to ask for assistance, and there was no evidence that the paint sprayer display had ever caused any accident or raised any safety concerns for Home Depot. Home Depot also presented some evidence that Heffernan failed to exercise ordinary care for his own safety. One Home Depot witness testified that although he asked Heffernan repeatedly if he needed help, Heffernan ignored the witness, and at one point had his foot placed on a beam two feet off the ground as if to climb on the display.

This evidence is sufficient to support a finding that Home Depot exercised ordinary care in keeping its premises safe for invitees. See OCGA § 51-3-1. Given the lack of any previous accidents or safety hazards associated with either the paint sprayer or the display, a jury could find that Home Depot’s frequent safety inspections of the display were reasonable under these circumstances. See Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 594 (466 SE2d 58) (1995) (absent a prior accident, premises owner had no reason to conduct a closer inspection than the one actually executed). Home Depot was not obligated to “anticipate the existence of a hazard which [it] had no reason to believe existed or to . . . exercise extraordinary care to inspect the premises.” (Emphasis supplied.) Id. Because the jury was the judge of credibility and as some evidence supports the jury’s decision, we will not reverse on this enumeration.

2. Heffernan argues that the trial court erred in failing to charge the jury as follows, paraphrased from Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992): “The owner of a premises has an affirmative duty to inspect the premises to discover possible dangerous conditions and to take reasonable precautions to protect invitees from foreseeable danger.” However, this requested charge, while not incorrect, is an incomplete statement of the law. As Barksdale goes on to state, a landowner is not an insurer of an invitee’s safety, and the law only requires the owner to use such diligence toward making his premises safe as an ordinarily prudent person is accustomed to use. Id. at 185.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Punctuation omitted.) Kelly v. Scheldt, 209 Ga. App. 357 (433 SE2d 370) (1993). Inasmuch as Heffernan’s requested charge was an incomplete statement of the law, the trial court did not err in failing to give this charge.

3. During cross-examination, counsel for Home Depot attempted to impeach Heffernan with his deposition testimony by questioning him regarding a prior criminal offense adjudicated pursuant to the First Offender Act, OCGA § 42-8-60 et seq. Heffernan argues that it was error to admit evidence of the prior crime because of its first offender disposition, and also argues that this evidence was inadmissible for impeachment purposes because it was not in conflict with any of his other sworn testimony.

Decided March 28, 1997

Reconsideration denied April 11, 1997.

Before Judge Brogdon.

Arthur H. Marateck, for appellant.

Goldner, Sommers, Scrudder & Bass, Carroll G. Jester, Jr., Tiffany T. Norman, for appellee.

Heffernan waived any objection to the admission of this evidence by failing to timely object at trial. When counsel for Home Depot asked about the first offender crime, Heffernan answered without objection. Heffernan then complied when encouraged to explain his answer, and another question was posed and answer given on this topic before Heffernan’s counsel objected. See Webster v. Brown, 213 Ga. App. 845, 848 (446 SE2d 522) (1994) (“objection was waived because it was not raised until after several questions about it were asked and answered without objection”). “This is not a case in which objection was made as quickly as possible during a ‘very fast exchange’ of questions and answers; it appears [Heffernan] had opportunity to object to the first or second reference to [the first offender crime].” Id. Having failed to timely object to' the evidence, the alleged error was not preserved and Heffernan’s arguments on this issue are without merit.

4. Heffernan claims the trial court erred because it failed to automatically disqualify panel members who were shareholders or stockholders of Home Depot U.S.A., Inc. or Home Depot, Inc. This enumeration is not reviewable because the voir dire is not contained in the record. “[T]he burden is on the party alleging error to show it affirmatively by the record. Accordingly, as there is nothing before us to review, we are unable to address this enumeration of error.” (Citation and punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392 (1) (469 SE2d 469) (1996).

The jury’s verdict in favor of Home Depot is therefore affirmed.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A0712.
    PINKERTON & LAWS, INC. v. MACRO CONSTRUCTION, INC. et al.
    (485 SE2d 797)
   Blackburn, Judge.

Pinkerton & Laws, Inc. (P & L), a general contractor, entered into a contract with Macro Construction, Inc. (Macro), a subcontractor, for Macro to frame buildings for P & L on a certain construction project. Macro was bonded for this project by Amwest Surety Insurance Company (Amwest). Disputes arose under the construction contract, and P & L ultimately declared Macro in default. P & L then made a claim for payment under the bonds to Amwest. When Amwest refused the claim, this litigation ensued. At trial, the jury found in favor of P & L against Macro, but not against Amwest. It also found for Amwest and Macro on their counterclaim against P & L. P & L appeals from the jury’s verdict, the court’s denial of its motion for new trial, and the form of the judgment entered by the court.

1. At trial, Amwest contended that it denied P & L’s claim under the bonds because P & L defrauded Amwest into issuing the bonds. P & L now contends that it cannot be liable for fraud because there was no evidence that Amwest exercised due diligence before issuing the bonds.

Although P & L is challenging the sufficiency of the evidence, there is no indication in the record that it ever raised this issue by motion for directed verdict or otherwise so as to allow the trial court to pass upon it. See generally Krause v. Vance, 207 Ga. App. 615, 619 (428 SE2d 595) (1993). It is therefore not clear that the issue was preserved for appellate review. However, because Amwest did present evidence that it exercised due diligence, P & L is not entitled to reversal on this ground. ‘Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” (Punctuation omitted.) Lofty v. Fuller, 223 Ga. App. 95, 97 (2) (477 SE2d 30) (1996).

P & L contends that because Amwest failed to ascertain the truth about the terms of the contract between Macro and P & L before issuing the bonds, P & L cannot be liable for fraud. Amwest’s employee, Killeen, issued the bonds after talking with P & L’s project manager about the contract between Macro and P & L. Killeen did not have an executed copy of those parties’ contract when he issued the bonds. However, Killeen testified that it was not uncommon in the industry for a surety to write a bond without a copy of the contract between the principal and the obligee before it, especially where, as here, the surety gets verbal confirmation of the material terms of the contract. Kenneth Matheson, a surety expert, testified that it was common industry practice for sureties to write bonds without written copies of the contracts before them. He further testified that Killeen followed ordinary industry practice, and that it is common to take the word of the obligee, in this case P & L, regarding certain bonding considerations. Under the “any evidence” standard, Amwest therefore presented evidence that it exercised due diligence before issuing these bonds, and this enumeration is without merit.

2. P & L argues that because no confidential relationship existed between it and Amwest, there could be no basis for a finding that P & L constructively defrauded Amwest into issuing the bonds. However, the jury was charged on both actual and constructive fraud, and its verdict form does not specify what type of fraud it found. Because P & L contests only Amwest’s due diligence with respect to actual fraud, and because we hold in Division 1 that Amwest did exercise due diligence, actual fraud is established, and we therefore need not address the issue of constructive fraud.

3. P & L claims the trial court erred in denying its motion for new trial. “The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s [motion] for new trial. . . will not be disturbed.” (Punctuation omitted.) Lofty, supra at 97.

P & L sets forth no separate argument in its appellate brief on this issue, but instead refers us to its arguments regarding fraud. Divisions 1 and 2 are therefore dispositive of this enumeration, and as we have found evidence in support of the verdict, the trial court did not err in denying P & L’s motion for new trial.

4. P & L asserts that the judgment does not conform to the verdict, and further asserts that the judgment fails to account for a set-off. The jury’s verdict awarded P & L $170,754 against Macro, nothing against Amwest, and awarded Macro and Amwest $32,057 on their counterclaim against P & L.

(a) With respect to the setoff, P & L contends that it is entitled to set off the amount it owes Macro and Amwest, $32,057, against the amount of the verdict owed to it by Macro, $170,754. Because Macro assigned its recovery on the counterclaim to Amwest, however, the judgment entered by the court provides only that Amwest is entitled to $32,057. The effect of the claimed setoff would be that Amwest would recover nothing, and Macro would owe P & L only $138,697.

OCGA § 9-13-75 provides in part that “[o]ne judgment may be set off against another, on motion, whether in the hands of an original party or an assignee.” Setoff is therefore not automatic; it must be preceded by a motion. See generally Payne v. Jones & Kolb, 190 Ga. App. 62, 63 (1) (378 SE2d 467) (1989) (enumerating as error failure to grant motion to set off). The record indicates that P & L did not make a motion, written or oral, for setoff of this amount prior to entry of the judgment. When the court entered the judgment, P & L made a motion to set aside the judgment based in part upon the court’s failure to account for setoff. Inasmuch as P & L failed to move for setoff as required by OCGA § 9-13-75, we cannot say the trial court erred in failing to grant that relief when it entered the judgment on the jury’s verdict.

Decided March 18, 1997

Reconsideration denied April 11, 1997.

Before Judge Eldridge.

Bowman S. Garrett, Jr., for appellant.

Thompson & Slagle, Dewitte Thompson, Jr., Jefferson B. Slagle, David J. Merbaum, for appellees.

(b) P & L also argues that the judgment entered by the trial court fails to account for its verdict against Macro. Although the judgment states that P & L takes nothing from Amwest, and Amwest takes $32,057 from P & L, it does not state that P & L takes $170,754 from Macro. P & L contested this issue in the same motion to set aside mentioned above, but said motion was denied. In its response to this motion, Amwest acknowledged that the judgment should be amended to reflect P & L’s $170,754 verdict against Macro.

“A judgment must conform to the verdict (OCGA § 9-12-9); and likewise it must follow the true meaning and intent of the finding of the jury.” (Punctuation omitted.) C&S/Sovran Corp. v. First Fed. Sav. Bank of Brunswick, 266 Ga. 104, 108 (3) (463 SE2d 892) (1995). It is clear that the jury intended to award P & L $170,754 against Macro, and the judgment must be amended to reflect that intention. However, as P & L “has enumerated no error requiring reversal of the judgment below ... we affirm the judgment of the trial court with direction that it vacate that part of its judgment erroneously disregarding the clear intendment of the jury’s verdict and enter judgment for that amount accordingly.” City of Fairburn v. Cook, 188 Ga. App. 58, 69 (11) (372 SE2d 245) (1988). The trial court is therefore ordered to amend its judgment to reflect the jury’s award of $170,754 against Macro.

Judgment affirmed with direction.

Pope, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A97A0337.
    WELLS v. THE STATE.
    (486 SE2d 390)
   Johnson, Judge.

A jury found Delim Wells guilty of two counts of theft by taking for taking a 1994 Ford Mustang and 1994 Ford Probe from the car dealership where he worked. He appeals from the convictions entered on the jury’s verdict and the denial of his motion for new trial.

1. Wells argues that the trial court erred in denying his motion for new trial when the verdict was contrary to and strongly against the weight of the evidence. On appeal, we do not weigh the evidence but only determine if the evidence is sufficient to enable a reasonable trier of fact to find proof of guilt beyond a reasonable doubt. Rios v. State, 193 Ga. App. 485, 486 (1) (388 SE2d 527) (1989). In making that determination, we are required to view the evidence in a light most favorable to the verdict. Id. at 486 (1).

So viewed, the evidence shows that Wells worked as a porter in the body shop at Southlake Ford from May 17, 1995 until June 16, 1995. As a porter, he was responsible for cleaning cars that Ford Motor Company sent to Southlake Ford for repairs. Although his job required that he move cars around on the lot, he was not authorized to drive cars off the premises. On August 4, 1995, police officers stopped Wells on Jonesboro Road after seeing him drive a Ford Mustang in a reckless manner. When officers asked Wells if the car was his, he initially stated it was, but then said he worked at Southlake Ford and was using the dealership’s car to deliver or pick up automobile parts. Officers checked Wells’ driver’s license and discovered it was suspended. They called Southlake Ford and spoke to George Harris, the manager of the body shop. Harris told the officers Wells no longer worked at Southlake Ford, that the car was missing, and that Wells was not in lawful possession of the car. At the officers’ request, Harris went to the scene to identify the car. Harris testified that Wells was not authorized to drive the car off the premises and he had told all body shop employees during training that the cars were not to leave the lot. Harris added that he asked Wells at the scene what happened to a 1994 Ford Probe that was missing from the lot between May 16 and May 29. Wells told Harris he “got tired of it” and gave it to some friends before he got the Mustang.

At trial, Wells took the stand and denied having the conversation with Harris about the Ford Probe. However, Wells admitted at trial that he drove a 1994 Ford Mustang belonging to Southlake Ford and had been stopped by police and cited for traffic violations several times while driving the Mustang. He added that he had an accident when he drove the car to Michigan. He also admitted keeping the Mustang from June 16, when he was fired, until August 4, though he knew he should not have had the car after his termination. Wells also admitted driving the Ford Probe home on Friday, May 26, but said he returned it on Monday. Wells claimed his supervisor, Felton Thornton, told him he could use the cars.

Wells’ argument that the evidence here was insufficient to exclude every other reasonable hypothesis save that of guilt, specifically his hypothesis that Thornton authorized him to drive the cars off the lot, is unpersuasive. Harris was recalled as a witness and testified that Thornton was a porter, just as Wells was, and had no managerial duties or any authority to permit Wells to drive a car off the lot. Whether the circumstances in a case are sufficient to exclude every reasonable hypothesis except the guilt of the accused is primarily a question for the jury. Harris v. State, 236 Ga. 242, 244 (1) (223 SE2d 643) (1976). “[W]e have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.” (Citations and punctuation omitted.) Id. at 244-245. The evidence was sufficient for a rational trier of fact to find Wells guilty of theft by taking beyond a reasonable doubt. See Massalene v. State, 224 Ga. App. 321, 324 (3) (480 SE2d 616) (1997); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

We reject Wells’ contention that the evidence did not show he possessed any criminal intent in taking the Mustang because Thornton gave him the keys and told him he could use the car. Intent is a question for the jury. Cole v. State, 186 Ga. App. 243, 244 (1) (366 SE2d 844) (1988). The jury may find criminal intent by considering the accused’s words, conduct, demeanor, motive and all other circumstances connected with the act for which he is being prosecuted. See OCGA § 16-2-6. Wells admitted that he knew he was not authorized to have the Mustang after he was fired from Southlake Ford. “The intent to withhold property of another even temporarily satisfies the mens rea requirement of the theft by taking statute.” (Citations omitted.) Ferrell v. State, 172 Ga. App. 238 (322 SE2d 751) (1984).

2. Wells also claims the state failed to prove the cars were the property of Southlake Ford as alleged in the indictment. In support of this argument, he points to evidence showing the cars were actually owned by Ford Motor Company. However, “those who steal will not be permitted to raise nice and delicate questions as to the title of that which is stolen. The ownership of personal property in an indictment for larceny, may be laid in a bailee having possession of the property when it was stolen. . . .” (Citations and punctuation omitted.) McIlhenny v. State, 172 Ga. App. 419, 420 (1) (323 SE2d 280) (1984). Therefore, any variance between the allegations contained in the indictment and the proof offered at trial regarding ownership of the cars was not fatal. See Baker v. State, 160 Ga. App. 211, 212 (1) (286 SE2d 458) (1981).

3. Wells contends he was denied the right to a full evidentiary hearing on his motion for new trial because appellate counsel was not allowed to present testimony from Wells and Wells’ trial counsel regarding his ineffective assistance of counsel claim. We have reviewed the hearing transcript and find that the trial court did not prevent either witness from testifying.

At the hearing, appellate counsel called Wells’ trial counsel to the stand and proceeded to examine him about his education, trial experience, and investigation of the case. The trial court eventually interrupted the inquiry and asked appellate counsel upon what grounds the ineffective assistance claim was based, since none was specified in the motion for new trial. In response, appellate counsel stated that trial counsel was ineffective inasmuch as he failed to: investigate the case; develop possible defenses; file a demurrer to the indictment; and move for a directed verdict based on the fact that Southlake Ford did not actually own the cars. The trial judge noted that a thief cannot challenge title, and added that Wells’ motion would be denied “if that’s your only grounds.” Rather than reassert the other grounds, appellate counsel continued to argue only about ownership of the cars. The trial judge then remarked: “If that’s all you got, you can bring the witness down.” Appellate counsel did not say he had other grounds, evidence or witnesses to present. Neither did he object to the witness being excused or the end to the inquiry into the ineffectiveness claim. After the witness stepped down, the court asked to hear the other grounds for the motion for new trial. Counsel then stated that Wells’ insufficiency of the evidence argument was also based on the fact that Southlake Ford did not own the cars. At that point, Wells’ motion for new trial was denied.

Contrary to Wells’ contention, he had the opportunity to present witnesses at the hearing on the motion for new trial, but failed to take full advantage of that opportunity. The record reflects no effort by appellate counsel to call Wells as a witness. And when appellate counsel called trial counsel as a witness, he was permitted to testify. The trial court did not dismiss the witness until after appellate counsel continued to argue only the ownership issue and failed to argue or remind the trial court of any other grounds of ineffectiveness he had orally asserted. Thus, appellate counsel had several opportunities to develop his grounds for the motion before the witness was excused, but he failed to do so.

We point out that the trial court has wide discretion in determining what evidence is relevant and material. Mosier v. State, 218 Ga. App. 586, 587 (1) (462 SE2d 643) (1995). We find no abuse of that discretion here. Moreover, Wells does not suggest how he was harmed by the excusal of the witness. “Reversible error does not exist without harm. [Cit.]” Id. at 587 (1).

Wells’ reliance on Heard v. State, 173 Ga. App. 543 (327 SE2d 767) (1985), as mandating a contrary result in this case is misplaced. In Heard, we held that the trial court erred in refusing to conduct a hearing to determine whether a defendant was entitled to new trial counsel based on a claim of ineffective assistance. The trial court in Heard, however, held no hearing and made no inquiry into the defendant’s request for new counsel. Id. at 543-546 (1). The trial court in the instant case held a hearing and inquired into Wells’ claim. Nor do we agree with Wells’ reliance on Martin v. State, 185 Ga. App. 145 (363 SE2d 765) (1987). In Martin, we held that the trial court erred in not allowing trial counsel and the defendants to testify at the hearing as to trial counsel’s effectiveness. Id. at 147 (3) (a). In the case before us, trial counsel was permitted to testify and new counsel made no attempt to present testimony from the defendant. We find neither harm nor error.

Decided April 11, 1997.

Before Judge Ison.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Verda M. Andrews-Stroud, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.