text:
    A95A2625.
    HUNTER v. THE STATE.
    (467 SE2d 2)
   McMurray, Presiding Judge.

Defendant Hunter appeals his conviction of the offense of felony obstruction of a law enforcement officer. Held:

1. The evidence presented at trial was sufficient to authorize defendant’s conviction. After defendant and a companion were denied entry into a bar because they were intoxicated, defendant’s companion became verbally abusive towards the bar’s doorman. Two uniformed police officers were summoned and attempted to escort defendant’s companion away. Defendant then attacked one of the officers, tackling him from behind and driving the officer into a door resulting in an injury to the officer’s hand.

There was conflicting evidence as to whether defendant first attacked the officer, or was himself attacked by an officer, with several witnesses supporting each of the alternative accounts of what transpired. But such conflicts in the evidence relate to the credibility of the witnesses which is solely for the trier of fact. We examine only whether the evidence viewed in the light most favorable to upholding the jury’s verdict was sufficient from which a rational trier of fact could find defendant was guilty beyond a reasonable doubt. Under this standard, the evidence was sufficient to authorize defendant’s conviction. Therefore the trial court did not err in denying defendant’s motion for directed verdict of acquittal or in denying defendant’s motion for new trial on the general grounds. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Williams v. State, 217 Ga. App. 636, 637 (3), 638 (458 SE2d 671); Adams v. State, 217 Ga. App. 532 (1) (458 SE2d 171); Redding v. State, 217 Ga. App. 529 (458 SE2d 168).

2. Defendant also contends the trial court erred in instructing the jury concerning voluntary intoxication in this case where actual knowledge and specific intent form essential elements of the offense charged. However, this Court has already held that there is no error in charging voluntary intoxication in a case charging a specific intent crime so long as the jury is properly charged regarding the finding of the requisite intent. Hayes v. State, 193 Ga. App. 33, 36 (6) (387 SE2d 139). In the case sub judice, the jury was properly instructed on the necessary findings of specific intent, that is, that defendant knew the person he attacked was a police officer and knew that the officer was attempting the lawful discharge of his duties. Therefore, and in view of the evidence concerning defendant’s intoxication, the charge on voluntary intoxication was not error.

3. Following a hearing, the trial court issued an order denying defendant’s motion for a supersedeas bond because reversal on appeal was unlikely. Birge v. State, 238 Ga. 88, 90 (230 SE2d 895). In an order of September 14, 1995, we also denied a motion by defendant for supersedeas bond. In his third and final enumeration of error, defendant maintains that the trial court’s denial of his appeal bond was error. But since we affirm the conviction, this issue is moot. Hall v. State, 210 Ga. App. 792, 795 (2) (437 SE2d 634).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided January 3, 1996.

N. David Wages, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Jefferson B. Blandford, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2674.
    MORGAN v. THE STATE.
    (466 SE2d 658)
   Beasley, Chief Judge.

Morgan appeals his convictions of driving under the influence of alcohol to the extent that it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), failure to maintain lane (OCGA § 40-6-48), and driving left of center lane (OCGA § 40-6-40).

On the evening of May 24, 1994, Officer Higdon responded to a two-vehicle accident. He found Morgan to be the driver of a truck that had crossed the centerline, struck a second vehicle, and then overturned. When Higdon arrived, Morgan was sitting against the guardrail holding a towel or shirt to his head. He observed minor injuries, although Morgan told Higdon he did not think he was hurt. The driver of the other vehicle was afraid to move for fear of his own injuries and was transported by emergency medical service personnel to the hospital.

As soon as the EMS personnel arrived, Higdon engaged Morgan in conversation. He observed that Morgan had bloodshot eyes, slurred speech and a moderate odor of alcoholic beverage. Morgan said his vehicle hit the guardrail because he attempted to avoid an animal in the road, and he had no recollection of what took place thereafter. Morgan submitted to several field sobriety evaluations, which he did not perform satisfactorily.

On cross-examination, Higdon acknowledged that he had not observed the EMS personnel treat Morgan’s injuries, that a photograph taken of Morgan at the time of his arrest indicated he had a broken nose, and that it is not uncommon for a person who has suffered a head injury to experience a loss of memory. The names of the two EMS personnel appeared on the State’s amended list of witnesses, but they were not called to testify.

After the State rested, the prosecuting attorney moved pursuant to Wilson v. Zant, 249 Ga. 373, 384 (4) (290 SE2d 442) (1982), to prohibit comment on the State’s failure to call these witnesses. In response, defense counsel argued that Wilson only precludes argument that the testimony of witnesses not called by the prosecution would have been exculpatory, where such witnesses are merely repetitive. He maintained that Wilson does not apply to a separate category of witnesses, such as the EMS personnel whose testimony would be relevant to the crucial issue of whether Morgan’s condition following the accident was caused by alcohol or injury. The prosecuting attorney stated that their testimony was not exculpatory, that they were not called because their testimony would have been cumulative, and that the defense was supplied with their names and could have called them.

After granting the State’s motion, the court denied defense motions to block comment on the defendant’s failure to call the EMS personnel as defense witnesses and to allow the defendant to argue that he did not call the EMS personnel as witnesses because of their appearance on the State’s witness list. The court denied the second motion after the prosecuting attorney stated he had informed defense counsel that the State would not call them. Counsel then made their closing arguments, which were not reported.

In his sole enumeration of error, Morgan contends that the court erred in refusing to allow any reference to the State’s failure to call the witnesses. This relates to the grant of the State’s motion but not to the denial of the defense motions.

The general rule is that the defendant may not comment on the State’s failure to produce certain witnesses. Wilson, supra at 384 (4). This is justified by the logic that “it is not reasonable to infer that the state’s failure to produce all available inculpatory witnesses means that their testimony would not have been inculpatory or would have been exculpatory.” Id. at 385. The Supreme Court did recognize that “there might be exceptions to the rule . . . depending upon the facts of a particular case. ...” Id.

Here, as in such cases as Prejean v. State, 209 Ga. App. 411, 413 (3) (433 SE2d 628) (1993), and Gober v. State, 203 Ga. App. 5, 7 (5) (416 SE2d 292) (1992), the defendant failed to demonstrate why the general rule should not be applied. The EMS personnel “were as available to [him] as to the state, and the defense could have called them to testify.” Brown v. State, 150 Ga. App. 831, 833 (2) (258 SE2d 641) (1979). In addition, the defendant did not controvert the prosecuting attorney’s statement that the testimony of these uncalled witnesses would not have exonerated him.

Despite the prohibition on defendant’s comments, he was not precluded from arguing that the State did not carry its burden of proving his guilt beyond a reasonable doubt because facts relied on by the State did not exclude every reasonable hypothesis save that of guilt.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided January 3, 1996

Robert W. Chestney, for appellant.

Ralph T. Bowden, Jr., Solicitor, Shannon L. Goessling, Lawrence Delan, W. Cliff Howard, Assistant Solicitors, for appellee.


author: McMurray, Presiding Judge.

text:
    A95A2711.
    SALDONA v. THE STATE.
    (466 SE2d 655)
   McMurray, Presiding Judge.

Defendant Saldona appeals his conviction of the offense of harassing phone calls (OCGA § 16-11-39 (4)). Held:

1. The first enumeration of error maintains that the evidence is not sufficient to authorize defendant’s conviction because there is evidence of only one telephone call in which defendant threatened the victim. Defendant’s argument is predicated on an incorrect reading of Sarver v. State, 206 Ga. App. 459 (2) (426 SE2d 48) which notes that the statute provides alternative and separate ways by which the crime may be committed. In the case sub judice, the accusation charged that defendant repeatedly telephoned the victim for the purpose of annoying and harassing him. The victim testified as to a dozen or more such calls and this evidence was sufficient to authorize defendant’s conviction. Id. at 460. The conviction in Sarver was reversed because there was only one annoying and harassing phone call so that the statutory prohibition of repeated conduct of this type was not breached there as it has been in the case sub judice. On this appeal, the significance of the evidence that defendant threatened the victim is only that this was an additional harassing telephone call. Furthermore, defendant’s assertion, that the repeated calls in which defendant screamed and cursed at the victim were only for the purpose of obtaining salary owed to his wife, addresses a factual issue which was properly submitted to the jury and decided adversely to defendant. A review of the entire record in the case sub judice reveals sufficient evidence from which a rational trier of fact could determine that defendant was guilty beyond a reasonable doubt of the offense of harassing phone calls. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Next, defendant complains of the trial court’s grant of the State’s motion in limine prohibiting any mention of a prosecution witness’s conviction of driving under the influence. Defendant argues that such evidence provided a proper means to impeach the witness by proof of a crime involving moral turpitude. But defendant is mistaken. Driving under the influence is not a crime involving moral turpitude. Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470). This enumeration of error is without merit.

Decided January 3, 1996.

Conrad M. Saldona, pro se.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Paul L. Howard, Jr., Solicitor, Jane Morrison, Assistant Solicitor, for appellee.

3. In his final enumeration of error, defendant argues for the first time that he was denied effective assistance of trial counsel. The ineffectiveness claim is raised by appellate counsel who had no participation in the case until after the filing of the notice of appeal (which was done by defendant pro se). We, therefore, remand the case for a hearing by the trial court to consider the claim of ineffective assistance of trial counsel. Kennedy v. State, 217 Ga. App. 18, 19 (2) (456 SE2d 288); Phillips v. State, 215 Ga. App. 526, 528 (451 SE2d 517).

Judgment affirmed and case remanded with direction.

Andrews and Blackburn, JJ., concur.


text:
    A95A2746.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. BARNETT et al.
    (466 SE2d 657)
   Beasley, Chief Judge.

The Barnetts filed a complaint against the State Department of Transportation and C. W. Matthews Contracting Company, Inc., a Georgia corporation. Matthews moved to dismiss or transfer venue from Fayette County to Cobb County, where Matthews’ principal place of business and registered office are located. The motion was denied and we permitted an interlocutory appeal to establish whether the DOT is a resident of Fayette County for the purposes of this action.

Plaintiffs own property in Fayette County in the vicinity of a state highway. The DOT widened the highway, and it contracted with Matthews to construct the improvements. Plaintiffs complain that the improvements were designed and constructed in a negligently defective fashion, causing rainfall, mud, and silt to be discharged onto their property.

In Count 1, they seek damages from the DOT for the depreciation in the value of their property under a theory of inverse condemnation. In Count 2, they seek an order against both defendants requiring them to abate the continuing nuisance, based on allegations that defendants jointly created the nuisance and that the DOT is maintaining it. In Count 3, plaintiffs seek damages against Matthews for negligent construction of improvements on their property and for negligent corrective work. Each defendant filed a cross-claim against the other.

Plaintiffs argue that for venue purposes the DOT resides in Fayette County by reason of OCGA § 32-2-5 (b), which states that all actions by or against the DOT, other than ex contractu actions, shall be brought in the county in which the cause of action arose. But see Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106, 108 (3) (213 SE2d 150) (1975) (holding that OCGA § 32-2-5 (b) is cumulative, not exclusive, of other venue provisions). Plaintiffs assert that, based on the theory that defendants are joint tortfeasors, venue over Matthews in Fayette County is proper under Art. VI, Sec. II, Par. IV of the 1983 Georgia Constitution. This provision allows an action to be maintained against joint tortfeasors who reside in different counties of Georgia in the county of residence of either.

1. Under the rationale in Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 307 (1) (127 SE2d 454) (1962), the DOT is a resident of Fayette County for venue purposes in the suit.

When the General Assembly enacts statutes providing that suits against certain corporations should be filed in the county where the cause of action arose, Gibbs and the cases it cites proceed on the theory that this constitutes an implied designation of that county as the residence of the corporation for the purposes of that suit. Id. at 310. By similar reasoning, OCGA § 32-2-5 (b) constitutes an implied designation of the county in which a cause of action against the DOT arose as the residence of the DOT for the purposes of that cause of action. This allows a resident joint tortfeasor to be joined in the action, even though the resident joint tortfeasor resides in a different county. Pate v. Brock, 95 Ga. App. 594, 596 (2) (98 SE2d 404) (1957); Quinton v. American Thread Co., 74 Ga. App. 436 (40 SE2d 95) (1946); compare Benton Rapid Express v. Johnson, 202 Ga. 597 (43 SE2d 667) (1947); but compare Horton v. Western Contracting Corp., 113 Ga. App. 613, 615 (3) (149 SE2d 542) (1966).

2. Venue over Matthews is thus proper in Fayette County, in that plaintiffs have alleged that Matthews and the DOT are joint tortfeasors in creating a continuing nuisance and plaintiffs seek an abatement of the nuisance by both defendants. See Bennett v. Bagwell & Stewart, Inc., 214 Ga. 115 (103 SE2d 561) (1958); Davey v. Turner, 55 Ga. App. 786, 788 (1) (191 SE 382) (1937); see also Gault v. Nat. Union Fire Ins. Co., 208 Ga. App. 134, 137 (4) (430 SE2d 63) (1993).

Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff'd 233 Ga. 453 (211 SE2d 744) (1975), relied on by Matthews, is not dis-positive. Gilson provides a test for determining whether persons are joint tortfeasors where, unlike the present case, a concert of action is lacking. Gault, supra at 137 (3).

Decided January 3, 1996

Moore & Rogers, William R. Johnson, Jere C. Smith, for appellant.

Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Sarah H. Murphy, for appellees.

3. Under the rule announced in Natpar Corp. v. E. T. Kassinger, Inc., 258 Ga. 102, 104 (1) (365 SE2d 442) (1988), the Fayette Superior Court, having venue over Matthews as to Count 2 of plaintiffs’ complaint, had discretion to entertain the claims asserted by plaintiffs against Matthews in Count 3.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A1949, A95A1950.
    DENISE et al. v. CANNON et al. (two cases).
    (466 SE2d 885)
   Birdsong, Presiding Judge.

Kimberley Denise, individually, and as representative of her deceased child Martin Ring and as next friend of her two surviving children, Haywood Payton and Jessica Ring, filed suit against Michael Cannon and Tammy Williams (Cannon) for damages arising out of a fire in the house which Denise leased from the Cannons. Also present in the house was a male friend of Denise, and his child who later died of injuries sustained in the fire. Denise contends the Cannons were negligent in that the smoke detector system in the house was hardwired to the security system and was inoperative and the fire alarm could not be heard in the master bedroom; and that the Cannons never warned Denise of these facts, never showed her how to operate the system, and never informed her that there was a battery pack in the basement which had to be replaced every few years and which was last replaced three years previously, with the result that although there were three adults in the house in addition to the children, Denise was unable to save her child Martin Ring, and she and her other children suffered great harm.

The trial court granted summary judgment to the Cannons. On Denise’s appeal, the Cannons respond by stating that while the cause of the fire is irrelevant to the issues before the court, this Court may nevertheless be curious as to how this tragedy occurred, and appellees then inform us that at trial they intended to speculate that Denise’s “petulant child” set fire to the house because this child had played with matches in the past and was the only child found outside fully clothed and not suffering from smoke inhalation. Appellees further assert, with no citation to the record, that “plaintiff’s lover,” David Cole, heard the alarm and therefore the trial court had no choice but to grant summary judgment to appellees. Appellees also note that “among the other curious things about this case is the plaintiff’s name, ‘Kimberley Denise.’ In the transcript of one of plaintiff’s many other cases we find an explanation: Changing her last name through her many divorces simply became too cumbersome, therefore, she simply abandoned a last name altogether and goes by the first and middle of her maiden names.” To prove this irrelevant point, appellees attach to their brief a deposition from a case named “Denise v. Mountain.” Held:

Efforts in a brief to disparage the character of opposing parties are not well received in this court, as they are an attempt to obscure the issues. At best they show an absence of real merit in the position of the party making such remarks. They also cause offense to the parties slurred and, being irrelevant and obfuscatory, may constitute excessive litigation giving rise to damages.

On motion for summary judgment, the burden is on the movant to establish the absence of any genuine issue of material fact and that the evidence, viewed most favorably to the respondent, warrants judgment as a matter of law (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)); the trial court is required to give the opposing party the benefit of all reasonable doubt and to construe all evidentiary inferences and conclusions most favorably to the respondent. Fisher v. Clarendon &c. Co., 210 Ga. App. 711 (437 SE2d 344). On appeal of the grant of summary judgment, we are not bound to any degree by the conclusions of the trial court; there is no presumption that the trial court correctly determined that there is no genuine issue of material fact, and our review is therefore de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832).

The defendants, as landlords, had a duty to maintain the premises in a safe condition. A landowner is liable to invitees for injuries caused by his failure to use ordinary care in keeping the premises safe; this is a statutory duty. OCGA §§ 51-3-1; 44-7-13; Hickman v. Allen, 217 Ga. App. 701 (458 SE2d 883). A landlord impliedly warrants that the rented premises are in good repair, and if by reason of a latent defect they are not, he is liable if he actually knew they were not in good repair or if by the exercise of ordinary care he could have discovered that they were not, if the defective condition is the proximate cause of the injury. Country Club Apts. v. Scott, 154 Ga. App. 217, 219 (267 SE2d 811). The requirement of ordinary care in maintaining an adequate fire detection and alarm system, whether established by ordinance or by the jury’s finding, is intended to warn of fire whatever its cause. Even assuming that Denise’s “petulant” child started this fire, if an adequate fire detection and alarm system may have spared the plaintiffs the particular harm caused to them, the defendant landlords may be liable to the extent determined by the jury. To say otherwise would remove all duty, if there is one, of a landlord to maintain an adequate fire detection and alarm system on the premises.

The evidence shows Denise relied upon the representations and manifestations that the fire detector system worked. There is evidence that faulty wiring in the basement could not be ruled out as the cause of the fire. Denise also shows evidence that appellees destroyed or altered material evidence, namely a supply wire and outlet which were removed from the area of the fire’s origin; if this was the case, inferences may reasonably be drawn that the items removed by defendants could have reflected unfavorably on the defendants as to the cause of the fire. If a jury concludes that a defective condition in the house caused the fire, defendants may be liable for damages on that account.

Appellees allege that Denise’s “then-current lover” (whose son also died as a result of the fire) heard a “beep,” but appellees cite no evidence for this assertion. See Court of Appeals Rule 27. Even assuming Mr. Cole did hear such a noise, this does not remove all issues of fact as to whether the alarm system was defective or in disrepair. Further, there is evidence appellees had superior knowledge that the control panel for the system would not function. In documents produced by the security system company from the Cannons’ file, there is a handwritten note stating that the control was to be replaced, that there were no signals, and that the homeowner was to call if replacement control was desired. There is also evidence that appellees violated local ordinances in failing to maintain an adequate fire detection and alarm system. Whether the system was defective and whether Denise had ever been instructed by appellees how to operate the system are unresolved issues of material fact.

Appellees contend the condition of the fire detection and alarm system was irrelevant because the fire itself was “loud” as it was crackling, burning and raging. This is an issue of fact. Appellees’ extensive argument as to whether the alarm system met statutory requirements merely proves that strong issues of fact remain for a jury’s determination.

Construing all the evidence in favor of the respondent, Denise, and giving her the benefit of every reasonable inference and every doubt, we find there are substantial issues of fact which only the jury can determine, and appellees are not entitled to judgment as a matter of law.

As we reverse the trial court’s partial summary judgment and summary judgment to appellees and return the case to its position before those judgments were granted, it is unnecessary to determine whether the trial court erred procedurally.

Decided December 7, 1995

Reconsideration denied January 4, 1996

Hughes, Rogers & Hofrichter, David R. Hughes, Kimberly E. Sanders, for appellants.

Cozen & O’Connor, Michael A. McKenzie, Timothy A. Bumann, for appellees.

Judgments reversed.

Johnson and Smith, JJ., concur.


text:
    A95A2518.
    FRAZIER v. THE STATE.
    (467 SE2d 338)
   Birdsong, Presiding Judge.

Willie Frazier appeals his conviction of burglary; he enumerates three errors. Held:

1. Appellant asserts that as Ms. Davis is his common law wife, the trial court erred in allowing her to testify in violation of OCGA § 24-9-23. We disagree.

Ms. Davis was indicted as a co-defendant with appellant. In anticipation that she would invoke her privilege against self-incrimination, the State granted her use and derivative use immunity with regard to any testimony or evidence she may give at appellant’s trial, and petitioned for an order from the trial court compelling her to testify. The trial court granted the State’s petition and issued the order. However, when Ms. Davis was called as a State’s witness, appellant’s counsel stated in his place that he anticipated the witness would invoke the marital privilege as she had been living with appellant for more than two years, had requested visiting privileges with appellant which was granted after she and appellant executed an affidavit of common law marriage, and had a gas bill which listed her name as “Tonya Frazier.” At trial, both the affidavit and the gas bill were introduced in evidence; the gas bill is dated approximately three months after the burglary. Ms. Davis subsequently testified that her name was “Tonya Joan Davis”; she had resided on Gordon Street with appellant for three months prior to her arrest; prior to moving to Gordon Street she had lived with her mother on Palamore Drive; she “now” has been living longer than three months with appellant, at her mother’s house and elsewhere; at the time of her arrest, she gave police the Palamore Drive address, because she did not have a phone at appellant’s address; just after her arrest she gave a statement to a police detective in which she stated that appellant was her boyfriend; upon being processed in the Glynn County Detention Center she gave her marital status as “single” but she has used the last name of “Frazier”; she does not remember signing any form of affidavit; in September she and appellant signed an affidavit to get visitation rights; she was 22 years old when she moved in with appellant; she has never been married before and has not lived with anyone else; she used the name “Frazier” in front of a lot of people and on her bills; one of her bills, she believes it was the gas bill, was listed in the name “Tonya Frazier”; she is the common law wife of appellant and has been so since 1993; she had sexual relations with appellant during the time she claimed to be his wife; in 1993, Ms. Davis had a miscarriage and lost a child by appellant; her mother considered her as married to appellant as did her friends; she had intended to be appellant’s wife and they subsequently had taken “the blood test and everything”; a ceremonial marriage was not performed, however, as Ms. Davis was incarcerated on a probation violation the day before the wedding was scheduled; although the ceremony was scheduled to be held after the date when both she and appellant were arrested, it was not being done for the purposes of claiming a marital privilege; and, it was appellant who told her she could claim a marital privilege but did not ask her to do so. Ms. Davis’ mother testified and corroborated inter alia that portion of her daughter’s testimony pertaining to appellant’s residing with Ms. Davis in the mother’s house and sleeping with Ms. Davis. She considered her daughter and appellant as being married; appellant and Ms. Davis told her they were married. The mother’s alleged common law husband testified that he too considered appellant and Ms. Davis as being married to each other. Tonya cooked for appellant and they went shopping together; however, during the year and a half that he lived with Ms. Davis’ mother, he had never heard Ms. Davis refer to herself as “Tonya Frazier.” But Ms. Davis may have done so and his attention may have been elsewhere at the time. At a family reunion appellant and Ms. Davis attended, he never heard them say they were man and wife. A holding cell mate of Tonya and longtime friend of the family testified that she believed appellant and Ms. Davis married as they were living together and Tonya always called appellant her husband.

The trial court found that neither appellant nor Ms. Davis had carried the burden of proving a common law marriage by the preponderance of the evidence; and, on the contrary, that the State has proven, based on admissions and statements of Ms. Davis herself, by a preponderance of the evidence and to the trial court “as a matter of fact, proof beyond a reasonable doubt, that there was not a common law marriage existing and existing now.” Accordingly, the trial court denied the witness’ assertion of the marital privilege and ordered her to testify under the grant of immunity given by the State.

As a “grant of immunity does not operate to compel one spouse to testify against another” (Stanley v. State, 240 Ga. 341, 348 (6) (241 SE2d 173)) and as a marital privilege extends to common law as well as to ceremonial marriages (see Overcash v. State, 239 Ga. 499, 500 (3) (238 SE2d 50)), we must determine whether the trial court erred in concluding that Tonya Davis was not the common law spouse of appellant. At trial, “[t]he party asserting a common law marriage must prove its existence to a preponderance of the evidence.” Dixon v. State, 217 Ga. App. 267, 268 (1) (456 SE2d 758); cf. Brantley v. State, 262 Ga. 786, 792 (7) (d) (427 SE2d 758) (not unconstitutional to place burden of proving insanity or mental illness on defendant); Johnson v. State, 209 Ga. App. 514, 516 (2) (433 SE2d 717) (burden upon defendant to show incompetency by a preponderance of the evidence). “If the evidence is in conflict as to the existence of a marriage, two procedures have been used to determine whether a marriage exists. The trial judge may hear evidence to determine whether a marriage exists, and his decision will not be disturbed on appeal if there is any evidence to support his finding. [Cit.] The second procedure is for the trial court to submit to the jury with appropriate instructions the question of whether or not a marriage exists. [Cit.]” Sheffield v. State, 241 Ga. 245, 246 (1) (244 SE2d 869). “The decision of the trial court as to the fact question of the existence vel non of a common-law marriage, should not be disturbed on appeal if there is any evidence to support its finding.” Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709); see, e.g., Schirato v. State, 260 Ga. 170, 171 (2) (391 SE2d 116) where there was not only some but substantial evidence to support the trial court’s finding. Although the evidence is in conflict, there exists some evidence to support the trial court’s finding of the nonexistence of a common law marriage, and we will not disturb that finding on appeal. Conyers, supra; Sheffield, supra. Additionally, the record reveals that during her testimony before the jury, Ms. Davis made an admission in judicio (see generally Lingerfelt v. State, 255 Ga. 180, 181 (3) (336 SE2d 250)) of the fact that appellant “still is” her boyfriend; and, during his testimony in open court, appellant also made an admission in judicio (Lingerfelt, supra) that, when the detective visited him after the burglary, at that time he was Ms. Davis’ boyfriend and she was his girl friend. Appellant’s first enumeration is without merit.

2. Appellant also enumerates that the trial court erred in allowing the introduction and publication to the jury of the tape-recorded statement of Ms. Davis’ interrogation by a police detective, as she is the common law wife of appellant and, as such, should not have been compelled to testify against her spouse or to produce other evidence in violation of OCGA § 24-9-23. In view of the limited scope of the enumeration, no other issue regarding the admission of the tape has been preserved for appellate review. See, e.g., Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). This enumeration, which alleges as the sole ground for statement inadmissibility a claim of spousal immunity, is without merit for the reasons discussed in Division 1 above.

3. We find no error of law as enumerated by appellant. See Divisions 1 and 2 above. Appellant’s contention that the verdict was against the weight of the evidence also is without merit. Tonya Davis testified, without objection by the defense except for the meritless prior claim of spousal immunity, regarding the contents of her taped, unsworn recorded statement to a police detective. She admitted in open court that in her prior statement she had told the detective that appellant kicked open the door of the averred building, entered and stole items therefrom; she helped appellant pick up stolen property he dropped while running out of the building and helped him carry that property to their residence. Ms. Sweeting testified that appellant had given her certain purses and two short pants sets as a gift; these items had been taken from the burglarized store. Additionally, Mr. Culver testified that he personally observed appellant enter the burglarized store between 3:00 a.m. and 5:00 a.m. on the averred date and exit the store carrying “garments and stuff.” The witness also observed “Tonya” standing on the sidewalk of the next door building; appellant gave some of the items to “Tonya.” The eyewitness picked up certain items which appellant left on the sidewalk; the eyewitness has a prior criminal record, including inter alia conviction of sale of marijuana, burglary and forgery in the first degree, numerous other forgery counts, criminal trespass, and theft by receiving. A trial court enjoys a wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646 (8) (398 SE2d 179). If, as in this case, evidence is duly admissible under any legitimate theory, it should be admitted even though it would not qualify for admission under one or more other evidentiary theories. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided November 16, 1995

Reconsideration denied January 4, 1996

Willie Frazier, pro se.

C. Foster Lindberg, for appellant.

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


text:
    A95A2673.
    HARRISON v. GOLDEN et al.
    (466 SE2d 890)
   Birdsong, Presiding Judge.

On December 27, 1991, appellant Tony Harrison sued Melvin Leon Golden, Carolyn Golden, and/or Jane Doe for injuries sustained in an automobile accident on January 6, 1990. Carolyn Golden’s boyfriend, Jackie Dempsey, had borrowed Melvin Golden’s car, driven it to his stepfather’s house and parked it in the driveway. While unoccupied the car rolled into the roadway and struck Harrison’s vehicle. On June 4, 1992, Harrison moved for leave of court to add as a defendant Jack Dempsey, the person alleged last to have driven the Goldens’ car. The trial court ultimately denied Harrison’s motion, and thereafter granted summary judgment to the Goldens. Harrison now appeals. Held".

1. Harrison contends the trial court erred in denying his motion for leave of court to add a party defendant. He claims that, until he deposed Melvin and Carolyn Golden, he believed Carolyn Golden was the last known driver of the vehicle prior to the collision. At the depositions he learned that Carolyn Golden allowed her former boyfriend, Jack Dempsey, to use the car.

OCGA § 9-11-15 (c) provides: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Harrison asserts that in denying his motion to add Dempsey as a defendant, the trial court erroneously concluded that Dempsey did not have notice of the suit prior to the expiration of the two-year statute of limitation.

A review of the record shows Dempsey was served on two occasions with a copy of the original complaint after the statute of limitation had expired. In fact, the Goldens themselves were not served until after the expiration of the statute. Further, nothing in the record shows Dempsey had any knowledge of the suit prior to the expiration of the statute of limitation.

A new party may be added to a lawsuit only if both elements of OCGA § 9-11-15 (c) have been satisfied. In the present case, Dempsey may have had notice of the facts of the case prior to the running of the statute of limitation, but this alone is not sufficient to satisfy the elements of OCGA § 9-11-15 (c). “By the plain wording of the statute, the required notice is notice of the institution of the action (i.e., notice of the lawsuit itself) and not merely notice of the incidents giving rise to such action. Notice of the incidents giving rise to the litigation did not satisfy the § 81A-115 (c) [OCGA § 9-11-15 (c)] requirement that the party sought to be added must have notice of the institution of the action. See also Sims v. American Cas. Co., 131 Ga. App. 461 (6) (206 SE2d 121), affd. 232 Ga. 787 (209 SE2d 61), recognizing this distinction by citing Craig v. United States, 413 F2d 854 (9th Cir. 1969), wherein the required notice of the institution of the action was held to be notice within the statutory period of the lawsuit, and not merely notice of the incident giving rise to it. Sims, supra, p. 483.” (Citation and punctuation omitted.) Hall v. Hatcher Sales Co., 149 Ga. App. 133, 134 (253 SE2d 812). Accordingly, the trial court properly denied Harrison’s motion for leave of court to add a party defendant because Harrison failed to show that Dempsey had notice of the institution of the action within the limitation period.

2. Harrison also contends the trial court erred by granting summary judgment to the Goldens even though genuine issues of material fact remained. Specifically, Harrison claims that there was a question of fact regarding who was the last known driver of the car, and also that the negligence of the appellees should be determined by a jury.

Under our law, “[t]o prevail at summary judgment. . . 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. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

(a) Although Harrison contends that the Goldens’ testimony claiming the automobile had no brake or transmission problems did not conclusively establish as a matter of law that there was no negligence on the Goldens’ part, he misstates the burden. After Lau’s Corp., a movant for summary judgment who will not have the burden of proof at trial need not conclusively disprove the non-moving party’s case. Id. at 495. “[I]nstead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491. Here the Goldens carried their burden by showing that the car was under Dempsey’s control prior to the accident, and that it was in good mechanical condition. Therefore, Harrison was required to come forward with evidence giving rise to a triable issue on these points. Id.

Harrison attempted to meet this burden by producing a mechanic’s affidavit stating that in his opinion a car in proper mechanical order which has its emergency brake applied and is in a gear will not roll from a parked position. He further declared it was his opinion based on his “experience and training that the vehicle did not have its emergency brakes properly applied and was not in gear.” This affidavit is insufficient to produce a genuine issue of fact as to the Goldens’ averred liability. It is not inconsistent with the Goldens’ deposition testimony that they properly cared for the vehicle, that they were without knowledge of any defect in the braking system or other problems that might cause the vehicle to roll when parked, and that there were no problems with the braking system after the collision. We conclude that Harrison failed to point to a triable issue; rather he merely relied on general allegations contained in a mechanic’s affidavit. “In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts.” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47).

(b) Further, Harrison attempts to show a genuine issue of material fact by claiming that Carolyn Golden was the last driver of the vehicle, rather than Jack Dempsey. Harrison provided the affidavit of a private investigator who stated that Mr. Golden’s wife (who was not present at the time of the accident) told him that her stepdaughter Carolyn Golden was the last driver of the car. In summary judgment proceedings the rules on admissibility of evidence apply, and hearsay such as this statement by the investigator has no probative value unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576).

Decided December 12, 1995

Reconsideration dismissed January 4, 1996.

Jack F. Witcher, for appellant.

Arnold Wright, Jr., for appellees.

(c) Harrison relies on the doctrine of res ipsa loquitur to establish a breach of duty by the Goldens.

“The elements of the res ipsa loquitur doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Further, the accident must also be of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. Moreover, res ipsa loquitur should be applied with caution and only in extreme cases; . . . it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.” (Citation, punctuation and emphasis omitted.) United States Fidelity &c. Co. v. J. I. Case Co., 209 Ga. App. 61, 64 (3) (432 SE2d 654).

For Harrison to proceed under the res ipsa loquitur doctrine, he must satisfy all elements of the test. He cannot do so, since the doctrine requires that defendants have exclusive control over the instrumentality. In this case Dempsey, and not the Goldens, had physical control of the vehicle before the crash. Harrison’s attempt to rebut this point through the affidavit of his investigator is insufficient. Therefore, res ipsa loquitur is not applicable because an intermediary cause (namely, Dempsey) produced or could have produced the injury. Meadows v. Oates, 156 Ga. App. 242, 243 (274 SE2d 634).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2092.
    BARRON v. POYTHRESS et al.
    (466 SE2d 665)
   Beasley, Chief Judge.

We granted Barron’s application for discretionary review of the denial of her claim for unemployment benefits, after she was discharged from her job as a photocopy clerk with NationsBank. She appealed and was heard by an administrative hearing officer, who determined she was disqualified from benefits under OCGA § 34-8-194 (2) (A). The Department of Labor’s board of review adopted the hearing officer’s decision and affirmed, and the board’s decision was affirmed by the superior court.

When Barron was hired, she told her employer she could not work overtime due to child care and safety concerns. A little over a year later, on November 26, 1993, the employer instituted a new policy that all photocopying jobs would be completed the same day submitted, and that all photocopy workers would be required to work whatever overtime was necessary to implement that policy. Barron informed her supervisor that this created a problem in that her child care provider would charge $20 an hour past 6:00 p.m. and that the area where her child care provider was located was unsafe for a woman traveling alone by public transportation at night. Her supervisor referred the matter to the personnel department.

The personnel manager’s first action was to inform Barron of a child care subsidy program “so she could basically be able to work this overtime and have her kids in a better situation.” She also encouraged Barron to find another position with the bank that did not require overtime and informed her that she would have until January 17 to do so. That period was later extended to January 31, and Barron continued to work in her photocopy clerk position while pursuing both options. None of her interviews resulted in another position, but before the deadline she was able to make child care arrangements that allowed her to work the required overtime. She was then told she could not continue in her job because she had been replaced, and her employment was terminated on January 31.

“Under [OCGA § 34-8-194 (2) (A)], an individual may be disqualified for unemployment compensation benefits where the individual has been discharged ‘for failure to obey orders, rules, or instructions or for failure to discharge the duties for which he was employed . . .’ Before such disqualification is appropriate, the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant. [Cits.]” Tanner v. Golden, 189 Ga. App. 894, 895 (377 SE2d 875) (1989). This is in keeping with the “strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2.” Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984). Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate. Id. at 113, 115; Glover v. Scott, 210 Ga. App. 25, 26 (435 SE2d 250) (1993).

The hearing officer found that Barron was “discharged due to being unable to work the required hours of the department” and that she “was separated for failure to work the required hours.” Consequently, the hearing officer concluded that under OCGA § 34-8-194 (2) (A) the termination was “due to fault assignable to the claimant and disqualification [was] required.” Factual determinations must be affirmed if there is any evidence to support them. OCGA § 34-8-223 (b); TNS Mills v. Russell, 213 Ga. App. 107 (443 SE2d 658) (1994). Whether there is fault assignable to claimant, which is a legal requirement for disqualification, often requires a legal conclusion. See Holstein v. North Chem. Co., 194 Ga. App. 546, 548 (3) (390 SE2d 910) (1990). The agency’s decision is reversible if there is error in a category listed in OCGA § 50-13-19 (h) (1) through (6).

There is no evidence to support the conclusion that termination was Barron’s fault. A determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation. Millen, supra at 115; accord Ga. Comp. Rules & Regulations 300-2-1-.01 (9) (c).

It is uncontroverted that Barron was terminated solely because of an inability to work overtime. It is also uncontroverted that, before her termination, she informed the bank that she could indeed work overtime. She had been given a period of time in which to secure another position at the bank while still holding her photocopy clerk position or work out arrangements for child care, which the personnel office attempted to help her cure. She was unable to use the child care assistance the bank offered because it would leave her with too much to pay from her own funds, but she independently sought and found a different child care solution that enabled her to work overtime. When she had resolved the problem presented by the employer’s new policy, she was told she would be terminated anyway because her position had been filled by someone else. There is no evidence Barron was ever informed she would be terminated even if, before the deadline, she became able to work the overtime. “If an employer . . . wishes to be arbitrary about such matters, Georgia law allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.” Millen, supra at 114.

It cannot be said that the bank showed there was a reasonable expectation of termination when Barron cured the problem. Therefore, fault for her termination is not assignable to her. As the bank did not carry its burden of showing that Barron came within the disqualification exception, she is entitled under the law to unemployment compensation and the superior court erred in affirming the denial of benefits. See Glover, supra at 26-27. OCGA § 50-13-19 (h) (5).

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

Decided January 4, 1996.

Anne E. Bunton, for appellant.

Michael J. Bowers, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Mary U. Jones, for appellees.


text:
    A95A2611.
    DEPARTMENT OF HUMAN RESOURCES v. WOOD.
    (466 SE2d 663)
   McMurray, Presiding Judge.

As authorized by OCGA § 19-6-28 (b), the Georgia Department of Human Resources (“DHR”) petitioned the Superior Court of Cobb County, Georgia, for a contempt citation, alleging that respondent Gilbert G. Wood had “refused and neglected to provide support for [his] minor children. . . .” Specifically, the petition claimed that court-ordered child support in the amount of $14,200 had accrued but that respondent had paid only $11,350, leaving him in arrears in the amount of $2,850. A divorce decree entered April 8, 1994, is attached as an exhibit to the petition. The record contains no response filed by respondent.

After a hearing, the superior court determined that respondent is obligated to pay court-ordered child support in the amount of $700 per month and alimony in the amount of $600 per month, according to the divorce decree; that these amounts were determined (by agreement) at a time when respondent’s annual income exceeded $60,000 whereas respondent’s present income is approximately $27,000 per annum; that there has been no modification of the original divorce decree; but that respondent is not in arrears with respect to child support although he “is in arrears in payment of alimony in the sum of $4317.16,” which he does not have the ability to pay. Consequently, the superior court concluded that respondent was not in wilful contempt of its previous order. The superior court did grant judgment against respondent for the $4,317.16 in back alimony and further ordered respondent to “make his future child support payments to the Cobb County Child Support Receiver ... by certified check, money order or cash at the Receiver’s office.” However, the superior court “refuse [d] to grant an Income Deduction Order in any form, as requested by Petitioner[, DHR].”

DHR’s application for discretionary appeal was granted and a timely notice of appeal was filed. Held'.

DHR contends the trial court erred in refusing to enter an income deduction order. We agree that the refusal to enter an income deduction order, as requested by DHR, with respect to a child support or spousal support judgment entered after July 1, 1989, was procedural error.

“All child support orders which are initially issued in this state on or after January 1, 1994, and are not at the time of issuance being enforced under subsection (a) of this Code section shall provide for the immediate withholding of such support from the wages of the parent required by that order to furnish support. ...” (Emphasis supplied.) OCGA § 19-6-32 (a.1) (1). The April 8, 1994 divorce decree in the case sub judice failed to include such an income deduction order when it was first issued. Nevertheless, after July 1, 1989, “upon the application to the child support (IV-D) agency[, i.e., DHR,] and upon the entry of a judgment establishing, enforcing, or modifying a child support obligation or spousal support obligation under subsection (d) of Code Section 19-11-6, the court, referee of the court, or administrative hearing officer shall enter a separate order for income deduction if one has not been entered.” (Emphasis supplied.) OCGA § 19-6-32 (a) (1). “The language of [OCGA] § 19-6-32 thus plainly mandates income-deduction orders.” Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733, supra. “The obligor cannot prevent it[.]” Dept. of Human Resources v. Offutt, 217 Ga. App. 823, 826 (459 SE2d 597). “Because the DHR [in the case sub judice] obtained a judgment after July 1, 1989, enforcing [respondent’s] obligation to pay [spousal] support, the [superior] court should have entered a separate income deduction order pursuant to [the mandate of] OCGA § 19-6-32 (a) (1). . . . We note that the [superior] court may determine the effective date of the income deduction order as outlined in OCGA § 19-6-32 (c). [See also Ga. Dept. of Human Resources v. Word, 265 Ga. 461, 464 (2) (458 SE2d 110).] Accordingly, that portion of the [superior] court’s order denying an income deduction order is reversed and the case is remanded for further proceedings consistent with this opinion.” Dept. of Human Resources v. Chappell, 211 Ga. App. 834 (440 SE2d 722). Accord Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733, supra.

Judgment reversed and remanded. Andrews, J., concurs.

Blackburn, J., concurs in judgment only.

Decided January 4, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Stephanie M. Baldauff, Assistant Attorneys General, for appellant.

D. Robert Autrey, Jr., Linda J. Spievack, for appellee.

       “An income-deduction order is directed to the employer of a person obligated to provide child support. The order requires the employer to deduct from the employee’s income an amount set by the court to meet the employee’s support obligation, including arrearages. See [OCGA] §§ 19-6-32; 19-6-33.” Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, fn. 1 (399 SE2d 65).


text:
    A95A2827.
    JONES v. THE STATE.
    (466 SE2d 667)
   Beasley, Chief Judge.

An accusation was returned against Jones charging him with various counts of DUI in violation of OCGA § 40-6-391 (a) (1) [less safe to drive] and (a) (4) [unlawful blood-alcohol level], arising from incidents on April 3, April 14, and June 15, 1991. The jury found him guilty on all counts. He appeals the trial court’s denial of his motion for new trial on the general grounds.

1. At the outset, we reject the State’s argument that Jones is precluded from challenging the sufficiency of the evidence on appeal because he failed to challenge it during trial, such as by moving for a directed verdict.

OCGA § 17-9-1 (a) requires the trial court to grant a directed verdict of acquittal where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law. Wisecup v. State, 157 Ga. App. 853 (1) (278 SE2d 682) (1981). There is no requirement that the defendant move for such as a prerequisite to filing a motion for new trial. Compare OCGA § 9-11-50 (b). OCGA §§ 5-5-20 and 5-5-21 authorize the defendant to seek a new trial on grounds that the verdict is contrary to the evidence and the principles of justice and equity, or decidedly and strongly against the weight of the evidence. The denial of a new trial on these grounds addresses itself to the discretion of the trial judge. Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978). On appeal, this Court only reviews the evidence to determine if there is sufficient evidence to support the verdict, which is a matter of law, not discretion. Woods v. State, 208 Ga. App. 565, 567 (3) (431 SE2d 167) (1993); Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988).

Thus, the defendant may challenge the sufficiency of the evidence by appealing the denial of his motion for new trial, even though he did not invoke such a ruling from the court at trial.

As to the evidence, Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987), relied upon by the State, is distinguishable. In Hill, we refused to consider the defendant’s contention that there was a merger of two of the counts of the indictment into another count, because that issue had not been properly presented to the trial court either during the course of the trial or by post-trial motion. Moreover, Hill is physical precedent only. See Court of Appeals Rule 33 (a).

Decided January 4, 1996.

Ralston & Painter, David E. Ralston, for appellant.

Roger Queen, District Attorney, William Britt, Assistant District Attorney, for appellee.

2. Jones argues that the State’s evidence was insufficient to establish that he was ever in actual physical control of a vehicle on June 15.

An officer employed by the Gilmer County Sheriff’s Department testified that he and another officer responded to a radio call in which they were asked to investigate a moving vehicle at a specified location. The other officer made the stop before the witness arrived on the scene. The witness testified that when he arrived, Jones had already exited his vehicle and was being read his implied consent warnings by the other officer. These facts were of sufficient specificity to indicate, and thus authorize the jury reasonably to infer, that Jones had been driving the vehicle. See, e.g., Henson v. State, 205 Ga. App. 419 (422 SE2d 265) (1992); Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992); Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988); Jones v. State, 187 Ga. App. 132 (1) (369 SE2d 509) (1988); Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987); compare Krull v. State, 211 Ga. App. 37 (438 SE2d 152) (1993).

3. Jones also seems to argue that the evidence was not sufficient to support a finding that he was driving a vehicle on April 3.

A City of Ellijay police officer testified that he observed Jones drive the vehicle a distance of approximately 50 feet before switching positions with the passenger and letting him drive.

No basis to reverse the judgment is offered.

Judgment affirmed.

Andrews and Ruffin, JJ., concur. Pope, P. J., disqualified.


text:
    A95A0979.
    A95A1137.
    GROVE et al. v. SUGAR HILL INVESTMENT ASSOCIATES, INC. et al. MID-AMERICAN WASTE SYSTEMS OF GEORGIA, INC. et al. v. SUGAR HILL INVESTMENT ASSOCIATES, INC. et al.
    (466 SE2d 901)
   Beasley, Chief Judge.

The appeal involves the validity of a city council resolution approving a “restated lease and operating agreement” between the City of Sugar Hill (“City”) and its solid waste treatment provider, Mid-American Waste Systems of Georgia, Inc. (“Mid-American”). The lease agreement included provisions for the potential expansion of an existing landfill. Mid-American, Grove, and Driver enumerate as error the trial court’s denial of their motions for summary judgment and the grant of summary judgment to plaintiffs on one count of plaintiffs’ complaint in this declaratory judgment action. A direct appeal is authorized by OCGA § 9-11-56 (h) and Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980).

Plaintiffs Sugar Hill Investment Associates, Inc. (“SHIA”), Albertson, Parker, Wayne and Louise Ballew, Bagley, and “HOPE” (Homeowners for a Positive Environment, Inc., a non-profit corporation organized to promote ecologically sound land use), initially moved for a temporary restraining order to prevent the City from adopting the agreement. The individual plaintiffs and SHIA own property near the landfill. Defendants Grove and Driver, sole stockholders of Mid-American’s predecessor with direct financial interest in the landfill due to a contract with Mid-American, were permitted to intervene.

After the trial court denied plaintiffs’ motion for a temporary restraining order, the city council adopted the agreement at a meeting on August 9, 1993, and authorized its execution. Subsequently plaintiffs were awarded summary judgment on one count on the basis that the lease agreement provided for the location of additional acreage for a landfill and therefore constituted a siting decision which required prior public notice by publication under OCGA § 12-8-26 (b). The trial court concluded that the failure to give the public notice rendered the City’s action ultra vires and the agreement void.

After an election changed the composition of the city council, the City realigned itself in this action and admitted that the agreement provided for siting an expanded landfill and was therefore void. The City has not joined in this appeal. Thus, Grove and Driver’s argument that the City is estopped from attacking the validity of the agreement has no bearing on this appeal. Nor does their unsupported argument that the estoppel would extend to plaintiffs by virtue of the City’s actions.

By lease agreements in 1985 (for thirty-eight acres) and 1989 (for six acres), the City leased to Mid-American’s predecessor, for use as a sanitary landfill site, a forty-four-acre tract the City owned. The updated agreement at issue sets out the parties’ obligations in relation to the operation of the landfill.

It also provides in paragraph 15 for the expansion of the landfill to 216.27 additional acres of identified parcels bordering the 44 acres, which was not previously designated for use as a landfill, and was not yet owned by the City or Mid-American. The latter agreed to acquire it and deed it to the City before the end of 1993; when that was done, it would become subject to the lease agreement. Paragraph 16 provides that the contractor (Mid-American) will convey to the City 60 acres it owns, within 90 days, which acreage shall be subject to the lease agreement, except that the contractor retains a reversionary interest in the event it cannot get or chooses not to obtain a sanitary landfill permit for its use. That paragraph also subjects to the lease agreement 30 acres the City owns, “for use as landfill property.”

The agreement’s introduction states:

“WHEREAS the parties desire to add additional property to be subject to this restated Agreement to allow for a reconfiguration of the footprint of the proposed expansion of the existing landfill; and

“WHEREAS, the parties hereto deem it necessary and appropriate to address these issues by restating the Old Lease and to provide future stability, resources and reserves for Owner’s solid waste disposal needs which will be mutually beneficial to both parties for years to come. . . .”

1. Grove, Driver, and Mid-American argue that the trial court erred in concluding that the agreement constitutes a siting decision within the meaning of OCGA § 12-8-26 (b), because it does not locate or transfer or affect any more property than is already subject to existing leases with the City. They maintain it simply identifies certain parcels of land that Mid-American might deed to the City in the future and that they might wish to develop as part of the landfill. They assert that the lease agreement provides that in order for these additional properties to become landfill sites, they would have to comply with all of the applicable laws, regulations, and ordinances. At that time, the siting decision would have to be made, pursuant to OCGA § 12-8-26 (b). Alternatively, the defendant-appellants contend that even if the lease agreement constitutes a siting decision, the agreement is not void and the remedy is to require the City to hold properly noticed hearings.

The Solid Waste Management Act, OCGA § 12-8-1 et seq., requires municipalities to publish a notice in a newspaper of general circulation at least once a week for two weeks before “taking action resulting in a publicly or privately owned municipal solid waste disposal facility siting decision.” OCGA § 12-8-26 (b). Siting decisions include, but are not limited to, “such activities as the final selection of property for landfilling and the execution of contracts or agreements pertaining to the location of municipal solid waste disposal facilities within the jurisdiction.” Id.

Clearly, the agreement pertains to the location and expansion of the City’s landfill facilities and therefore is a siting decision within the meaning of OCGA § 12-8-26 (b). It constitutes mutual obligations designating specified additional parcels for landfilling, to be added at the option of Mid-American alone, subject to permitting and other applicable laws for landfills. The agreement itself provides: “It is contemplated that Contractor may acquire additional tracts of land . . . for purposes of expanding the present operations of the landfill. . . . Owner shall accept any such conveyance subjecting said property to the Restated Agreement for potential use as a landfill.” “Contractor shall use the Leased Premises as a sanitary landfill. . . .” Also, the City is obligated to assist Mid-American to obtain the necessary permitting.

We reject Grove and Driver’s argument that, because the new property is contiguous to the existing landfill, the adoption of the agreement is not a siting decision. Such reasoning, taken to its logical conclusion, would allow for unlimited landfill expansion without public notice, so long as the additional property bordered an existing landfill. This does not conform to the legislature’s purpose in enacting the Solid Waste Management Act, OCGA § 12-8-21 (a).

2. It is undisputed that the City failed to provide the statutory notice of the meeting in which the city council adopted the agreement at issue, as required under OCGA § 12-8-26 (b). The only notices were those posted on the City Hall notice posting board and at the end of the street in front of City Hall on August 6. The posted agenda listed, as a committee report, “Solid Waste: Proposed Restated Lease & Operating Agreement with Mid-American.” At issue is the effect of the failure to give the requisite notice.

Municipalities have only limited power to enter into contracts and “[i]f a contract is beyond the power or competence of the local government, then the contract is termed ultra vires and is void.” Precise v. City of Rossville, 261 Ga. 210, 211 (1) (403 SE2d 47) (1991). For an act to be considered ultra vires, “it must be beyond the ‘power or authority of the (local government) to perform under any circumstances.’ [Cit.] . . . An irregularity in the exercise of a granted power does not render the act in question ultra vires. [Cit.]” City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 539 (7) (a) (422 SE2d 651) (1992); R. P. Sentell, Jr., Local Government and Contracts that Bind, 1969 Ga. L. Rev., pp. 546, 548.

Under some circumstances, as with the eight acres for which the State granted a landfill permit, and the balance of the forty-four acres which was already subject to landfill leases with the City, the City had the undisputed power and authority to enter into a new lease for the property to continue in use as a landfill. Thus, the ultra vires doctrine would not nullify the adoption of the entire agreement. However, officials’ actions may be set aside “if they fail to comply with the law in the exercise of their discretion.” Lindsey v. Guhl, 237 Ga. 567, 570 (II) (229 SE2d 354) (1976). Due process as set out in the law must be followed. We conclude that the failure to comply with OCGA § 12-8-26 (b) by necessity invalidates that portion of the agreement relating to the siting decision — that portion of the agreement pertaining to the expansion of the acreage of the municipal solid waste disposal facility. Johnson v. Rogers, 214 Ga. App. 557, 558 (1) (448 SE2d 710) (1994) (summary judgment must be affirmed if correct on any ground).

Mid-American’s solution, that the remedy for the failure to comply with OCGA § 12-8-26 (b)’s notice requirements is to compel the City to hold a properly noticed siting decision meeting, does not achieve the prescribed due process. The legislature stated its purpose in enacting the Solid Waste Management Act — to protect the health, safety, and well-being of Georgia’s citizens and assure that solid waste facilities “do not degrade the quality of the environment by reason of their location, design, method of operation, or other means. . . .” OCGA § 12-8-21 (a). The implicit purpose of the notice requirements is to promote reasoned decisions on the location of waste facilities made after public discussion and to assure officials’ accountability. See OCGA § 12-8-26. Compare Harms v. Adams, 238 Ga. 186 (232 SE2d 61) (1977). To effectuate this purpose, the legislature used mandatory language — the word “shall” — in fashioning the notice requirement. Id.; McClure v. Davidson, 258 Ga. 706, 710 (3) (373 SE2d 617) (1988). “As shall is a word of command, it can hardly be argued that the procedures are optional.” McClure, supra at 710. Such language has been strictly construed to invalidate other municipal actions; McClure involves zoning.

Permitting the City to make a siting decision without complying with the statutorily mandated notice procedures and then remedying this error by holding pro forma hearings after the siting decision has been made would strip OCGA § 12-8-26 (b) of its essential meaning. Such a remedy thwarts the public notice requirement’s purpose. A public airing must precede a decision if it is to have an unbiased, unencumbered effect on the decision. The purpose of the airing is to allow the presentation of all evidence and argument upon which a rational political decision can be made, not to give parties adversely affected by a decision merely an opportunity to reverse it. The score must be the result of plays made during the game, not after its conclusion.

3. Appellants did not contend, below or here, that the balance of the agreement survives due to the severability clause. We reach the question, however, because at bottom the issue in this case is the validity of the contract. Under Georgia law where the parties express an intent to frame a severable contract, “ ‘the invalid provision does not render other provisions of the contract void.’ [Cit.]” Horne v. Drachman, 247 Ga. 802, 805 (2) (280 SE2d 338) (1981); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 649 (152 SE2d 579) (1966), appeal after remand 118 Ga. App. 172 (162 SE2d 815) (1968). The parties’ intent may be expressed directly, through a severability clause, or indirectly, as when the contract contains promises to do several things based upon multiple considerations. OCGA § 13-1-8; Charles v. Leavitt, 264 Ga. 160, 161, n. 1 (442 SE2d 241) (1994). See also OCGA § 13-8-1.

The lease agreement includes a severability clause reflecting the parties’ intent that invalid provisions be severed. The last sentence of the clause causes no concern because it has no applicability in this case. The lease agreement is a complex document which addresses many matters unrelated to the illegal siting decision such as pre-existing leases, per ton host fees for solid waste, recovery of methane gas, and indemnification. Compare Med. Doctor Assoc. v. Lab-Quip Co., 201 Ga. App. 880, 881 (1) (412 SE2d 625) (1991). The parties clearly expressed an intent to frame a severable contract and we do not read the contract as expressly conditioning validity of the remaining provisions on the validity of those paragraphs addressing the problematic siting decisions. OCGA § 13-1-8 (b); Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 139-140 (4) (355 SE2d 437) (1987).

Accordingly, although the trial court’s order granting plaintiffs’ motion for summary judgment is affirmed insofar as it declares void the city council resolution as to the siting decision, it is reversed insofar as the order in effect invalidates the entire agreement.

4. Defendants argue that the trial court erred in denying their motion for summary judgment on Count 2 of the complaint, which alleges that paragraph 30 of the lease agreement constitutes a zoning decision within the meaning of OCGA § 36-66-3 (4). They deny that the agreement is a zoning decision within the meaning of the statutory provision. Plaintiffs, on the other hand, maintain that the entire agreement is void due to defendants’ failure to provide the notice mandated by OCGA § 36-66-4 before taking action on a zoning decision.

Paragraph 30 is not a zoning decision within the meaning of the statute. OCGA § 36-66-3 (4) defines zoning decision in pertinent part as a “final action by a local government which results with . . . the adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another.” In paragraph 30 of the agreement, the City agreed only to “join with [Mid-American] in any lawful efforts needed to achieve compliance with all federal, state, and local laws, regulations, and ordinances to maximize the sanitary landfill capacity of the premises leased. . . .” It is undisputed that the zoning ordinance was not actually amended. Although paragraph 30 may require a future amendment to the zoning ordinance, the adoption of paragraph 30 does not constitute “the adoption of an amendment” or a “final action” under the statute. Therefore, the trial court erred in denying summary judgment to defendants on Count 2 of the complaint as a matter of law.

Decided December 20, 1995

Reconsideration denied January 5, 1996

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Catherine M. Packwood, for appellants (case no. A95A0979).

Dan A. Aldridge, Jr., Chad K. Reed, for appellants (case no. A95A1137).

Kirwan, Parks, Chesin & Remar, Robert B. Remar, Susan M. Garrett, for appellees.

Accordingly, the orders denying defendants’ motions for summary judgment are affirmed in part and reversed in part. The remaining enumerations of error (3 and 5 through 10) raise no reviewable grounds either because genuine issues of material fact remain to be tried, the record is not sufficiently developed to permit legal analysis at this stage of the proceedings, or the parties have provided insufficient record citations. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251) (1989). See Court of Appeals Rule 27 (c). These cases are remanded for further proceedings consistent with this opinion.

Judgments affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.

        “Invalid Provisions. If any provision of this Restated Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof such provisions shall be fully severable; the Restated Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof or thereto; and the remaining provisions hereof or thereof shall remain if [sic] full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom or therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part hereof or thereto a provision that is similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable.”


text:
    A95A2290.
    CASWELL et al. v. THE STATE.
    (466 SE2d 907)
   McMurray, Presiding Judge.

Defendants Blanche Caswell, Robert L. Caswell II, and Robert L. Caswell III, were jointly indicted for possession of methamphetamine. Defendants appeal following their conviction at a non-jury trial. Held-.

Some amount of the contraband drug was found in the possession of each of the defendants during a search pursuant to a warrant of the residence of Robert L. Caswell II, and Blanche Caswell. The search warrant was issued solely on the basis of the affidavit submitted to the magistrate, that is, no oral testimony adding to the affidavit was given before the issuing magistrate. Defendants contend that the affidavit and search warrant are defective due to a failure to establish the reliability of the informant and of the information provided by the informant.

“An affidavit submitted in support of a search warrant must ‘ “set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” ’ State v. McKendree, 188 Ga. App. 290, 291 (372 SE2d 673) (1988).” (Emphasis in original.) State v. Teague, 192 Ga. App. 839, 840 (386 SE2d 718). The reliability of the informant was adequately established in the affidavit.

But defendants are correct in their assertion that the affidavit fails to establish the informant’s basis of knowledge. The affidavit states that “[d]uring the past five (5) days Affiant has received information from a reliable confidential informant that Bert Caswell had a quantity of methamphetamines in his residence.” There was no indication in the affidavit as to whether this information came from the informant’s personal knowledge so the informant’s tip must be relegated to the status of a casual rumor. Evidence at the motion to suppress hearing showing that the affiant had more information as to the basis of the informant’s knowledge than was set forth in the affidavit is irrelevant since it was not communicated to the magistrate.

Nor was the informant’s tip proven reliable through corroboration. Such usually requires that the tip contains predictions of the future actions of third parties of a nature not easily predicted. In the case sub judice there was neither such predictions nor any surveillance of defendants or their residence.

The State does argue that corroboration is provided by a statement that in the past months information had been received from concerned citizens that Bert Caswell was selling methamphetamines from the residence, but these earlier complaints could not turn the informant’s rumor into reliable information since there were no facts in the affidavit from which the earlier complaints could be deemed reliable either. State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57).

The affidavit in the case sub judice did not provide the magistrate with a substantial basis for determining the existence of probable cause to issue a warrant authorizing a search of the residence. Therefore, the denial of defendants’ motion to suppress evidence obtained pursuant to the search warrant was reversible error.

We further note that the third defendant, Robert L. Caswell III, was not a resident of the home, but arrived there during the course of the search and that methamphetamine was found during a search of his person. The trial court upheld the legality of this search by determining that this was a legal search of a probationer who is required to submit to police search when requested. Since this finding suggests an independent basis for the search of this defendant, we must note that the factual predicate for the trial court’s finding is absent from the record. There is no evidence that the conditions of this defendant’s probation include any relinquishment of Fourth Amendment rights. Consequently, the search of this defendant must be viewed as attributable to the illegal search warrant.

Decided January 5, 1996.

T. Neal Brunt, Jimmy D. Berry, for appellants.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A95A2305.
    MOBLEY v. THE STATE.
    (466 SE2d 669)
   Johnson, Judge.

Irvin Mobley was convicted of aggravated child molestation in that he forced his niece to perform oral sodomy on him. He appeals from that conviction.

1. Mobley’s challenge to the sufficiency of the evidence supporting the conviction is without merit. The victim testified that on numerous occasions, from the time she was five until she was eleven or twelve years old, Mobley forced her to perform oral sex on him, rubbed her breasts with his hands, placed his fingers inside her vagina and laid on top of her while they were both undressed. Another of Mobley’s nieces testified that from the time she was nine until she was twelve years old Mobley forced her, on approximately ten to twenty occasions, to perform oral sex on him. She also testified that on at least one occasion he tried to have sexual intercourse with her. Viewed in the light most favorable to the verdict, the testimony of the victim and Mobley’s other niece was enough to enable a rational trier of fact to find Mobley guilty beyond a reasonable doubt of aggravated child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-6-4 (c).

2. Mobley claims the court erred in refusing to dismiss the indictment on the ground that it charged a single act of child molestation which occurred outside the statute of limitation. This claim is without merit. There is a seven-year statute of limitation for aggravated child molestation offenses committed after July 1, 1987, and a four-year limitation period for such offenses committed before July 1, 1987. OCGA § 17-3-1 (c); Martin v. State, 196 Ga. App. 145, 146 (1) (395 SE2d 391) (1990). Here, the indictment was filed on February 7, 1994, and charged that Mobley forced the victim to perform an act of oral sodomy between March 1, 1987, and August 31, 1989. The court correctly ruled that under this indictment any act of molestation which occurred before July 1, 1987, is barred by the four-year statute of limitation, which expired in 1991. However, the seven-year statute of limitation had not expired on any molestation which occurred between July 1, 1987, and the date the indictment was returned in February 1994. Accordingly, the court properly denied Mobley’s motion to dismiss the indictment and correctly instructed the jury that it could only consider acts of oral sodomy occurring between July 1, 1987, and the date the indictment was filed in determining Mobley’s guilt or innocence under the indictment. See generally Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236) (1986). The court’s ruling and jury instruction did not improperly alter the indictment, but simply removed from the jury’s consideration the mere surplusage contained in the indictment. See Ingram v. State, 211 Ga. App. 252, 253 (1) (438 SE2d 708) (1993). The court therefore committed no error in refusing to dismiss the indictment.

3. Mobley argues the court erred in refusing to hold a similar transaction hearing before the start of the trial, and instead holding two separate hearings in the middle of the trial immediately before similar transaction testimony was offered by the victim and the other niece. Although it may be preferable to hold a similar transaction hearing before trial, the court has discretion in deciding when to hold the hearing, and it is not reversible error to hold the hearing in mid-trial where the defendant can show no prejudice from the failure to have the hearing before trial. White v. State, 203 Ga. App. 889, 890 (1) (418 SE2d 149) (1992). Because Mobley can show no prejudice, we must hold that the trial court did not abuse its discretion in holding the similar transaction hearings after the start of the trial.

4. Mobley’s complaints that the court erred in admitting similar transaction testimony from the victim and the other niece because such evidence was not offered by the State for a proper purpose are specious. “(T)he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible when the accused is being tried for one or more crimes involving some form of sexual abuse of a child. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Citations, punctuation and emphasis omitted.) McGarity v. State, 212 Ga. App. 17, 19 (2) (440 SE2d 695) (1994). In the instant case, the similar transaction evidence of both the victim and Mobley’s other niece was properly admitted as relevant to show Mobley’s lustful disposition, plan, scheme, bent of mind and course of conduct, whereby he would subject his young female relatives to his acts of sexual abuse. See Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993); Rash v. State, 207 Ga. App. 585, 586-587 (3) (428 SE2d 799) (1993); Starnes v. State, 205 Ga. App. 882, 883-884 (1) (424 SE2d 4) (1992).

Decided January 5, 1996

Michael O. Horgan, Jeffrey C. McLellan, for appellant.

Dennis C. Sanders, District Attorney, M. Eric Eberhardt, Assistant District Attorney, for appellee.

5. Mobley contends the court erred in not allowing him to ask potential jurors during voir dire whether they had heard of “false memory syndrome” or “repressed memory.” Mobley’s contention is unpersuasive. “The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.” (Citations and punctuation omitted.) Kirkland v. State, 206 Ga. App. 27, 28 (4) (424 SE2d 638) (1992). Here the court did not manifestly abuse its discretion in disallowing Mobley’s proposed questions because they appear to test jurors’ willingness to accept the defense theory rather than to test juror impartiality. See Meeks v. State, 216 Ga. App. 630, 632-633 (4) (455 SE2d 350) (1995).

6. Mobley asserts that the court erred in inspecting only the prosecutor’s files, and in refusing to inspect the files of the Georgia Bureau of Investigation (GBI) and other state law enforcement agencies, for material exculpating Mobley. Contrary to this assertion, the court correctly denied Mobley’s request for an inspection of GBI and other law enforcement agencies’ files because Mobley was entitled only to exculpatory material contained in the state prosecutor’s file or about which the prosecutor had knowledge; the court was not required to inspect all police investigative files. See Morrill v. State, 216 Ga. App. 468, 472-473 (7) (454 SE2d 796) (1995).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.