O.C.G.A. § 5-5-21 (2019)

Annotations

Law reviews. - For survey of cases dealing with criminal law and criminal

procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION JUDGMENT NOTWITHSTANDING VERDICT APPLICATION APPEAL OR CERTIORARI FROM DENIAL OF NEW TRIAL

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NEW TRIAL General Consideration

General grounds for new trial are addressed to discretion of trial judge. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Authority to grant new trial. - No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97, 547 S.E.2d 734 (2001). Defendant claimed on appeal that a conviction for the unauthorized possession of drugs by an inmate, in violation of O.C.G.A. § 42-5-18(b), was contrary to law, contrary to the evidence, and against the weight of the evidence, and that, on that basis, it was error for the trial court to deny a motion for a new trial, but, under O.C.G.A. § 5-5-21, only the trial court had the authority to grant a new trial on the ground that the verdict was contrary to the weight of the evidence. Collinsworth v. State, 276 Ga. App. 58, 622 S.E.2d 419 (2005). Defendant’s argument that the verdict convicting the defendant of the involuntary manslaughter of defendant’s 17-month-old son was decidedly and strongly against the weight of the evidence could only be made to a trial court in a motion for new trial, not to an appellate court on appeal. The appellate court did not have the discretion to grant a new trial on these grounds. Lewis v. State, 304 Ga. App. 831, 698 S.E.2d 365 (2010). Discretion rests solely with trial judge. - Discretion to grant or refuse motions for new trials because verdict is strongly and decidedly against weight of evidence rests solely in presiding judge. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932); Turner v. Masonic Relief Ass’n, 52 Ga. App. 374, 183 S.E. 350 (1936). Trial judge alone has the authority to grant new trial on ground that the verdict is strongly and decidedly against weight of evidence. Josey v. State, 197 Ga. 82, 28 S.E.2d 290 (1943); Wright v. State, 173 Ga. App. 408, 326 S.E.2d 584 (1985); Hood v. State, 192 Ga. App. 150, 384 S.E.2d 242 (1989); Dixon v. State, 192 Ga. App. 845, 386 S.E.2d 719 (1989); Madaris v. State,

207 Ga. App. 145, 427 S.E.2d 110 (1993). Duty upon trial judge to exercise discretion. - Motion for a new trial on grounds set forth in former Code 1933, §§ 70-202 and 70-206 (see O.C.G.A. §§ 5-5-520 and 5-5-21) addressed the sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962); Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant’s motion for new trial under O.C.G.A. § 5-5-21. The issue was not whether the evidence was sufficient to support the verdict, but whether the verdict was against the weight of the evidence. Manuel v. State, 289 Ga. 383, 711 S.E.2d 676 (2011). When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court’s discretion and weigh the evidence. The trial court did not exercise the court’s discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and 5-5-21. Walker v. State, 292 Ga. 262, 737 S.E.2d 311 (2013). Discretion to grant new trials should be exercised with caution. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). New trial should be granted only when evidence preponderates heavily against verdict. - Power to grant new trial under this section should be invoked only in exceptional cases in which evidence preponderates heavily against verdict. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978) (see O.C.G.A. § 5-5-20). Discretion duty applies no matter how many verdicts have gone against

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General Consideration (Cont’d) movant. - In all cases when motion for new trial is being passed on by trial judge, no matter how many verdicts have gone against losing party, law places on the judge a solemn responsibility to exercise discretion in granting or refusing new trial. Mills v. State, 188 Ga. 616, 4 S.E.2d 453 (1939). On motion for new trial, court may weigh evidence and consider credibility of witnesses. If court reaches conclusion that verdict is contrary to weight of evidence and that miscarriage of justice may have resulted, verdict may be set aside and new trial granted. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979). Trial court did not apply the wrong standard in denying a defendant’s motion for new trial by noting, in response to the defendant’s argument that the eyewitnesses were not credible, that the credibility of the witnesses was for the jury unless ‘‘they were just way in left field.’’ Tolbert v. State, 313 Ga. App. 46, 720 S.E.2d 244 (2011). All conflicts are resolved to favor verdict in determining whether there is any evidence supporting the verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979). Inference in favor of verdict. - After verdict, in passing upon motion for new trial, that view of the evidence which is most unfavorable to the accused must be taken, for every presumption and every inference is in favor of the verdict. Brown v. State, 71 Ga. App. 522, 31 S.E.2d 85 (1944). Motion for new trial must be made before trial court. - Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448, 738 S.E.2d 277 (2012). Cited in Richmond & D.R.R. v. Allison, 89 Ga. 567, 16 S.E. 116 (1892); Western & Atl. R.R. v. Hughes, 278 U.S. 496, 49 S. Ct.

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231, 73 L. Ed. 473 (1929); Jackson Disct. Co. v. Merck, 50 Ga. App. 381, 178 S.E. 208 (1935); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Rogers v. Rogers, 52 Ga. App. 548, 184 S.E. 404 (1936); Southern Ry. v. Lunsford, 57 Ga. App. 53, 194 S.E. 602 (1937); Carter v. Powell, 57 Ga. App. 360, 195 S.E. 466 (1938); Davis v. State, 202 Ga. 13, 41 S.E.2d 414 (1947); Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947); Law v. State, 92 Ga. App. 604, 89 S.E.2d 550 (1955); Martin v. State, 95 Ga. App. 519, 98 S.E.2d 105 (1957); O’Quinn v. James, 127 Ga. App. 94, 192 S.E.2d 507 (1972); Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975); Wilson v. State, 145 Ga. App. 33, 243 S.E.2d 304 (1978); Hembree v. Ideal Bldrs., Inc., 158 Ga. App. 574, 281 S.E.2d 328 (1981); Johnson v. Wills Mem. Hosp. & Nursing Home, 178 Ga. App. 459, 343 S.E.2d 700 (1986); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Stinson v. State, 185 Ga. App. 543, 364 S.E.2d 910 (1988); Towns v. State, 185 Ga. App. 545, 365 S.E.2d 137 (1988); Hart v. Fortson, 263 Ga. 389, 435 S.E.2d 45 (1993); Willis v. State, 263 Ga. 597, 436 S.E.2d 204 (1993); United Servs. Auto. Ass’n v. Gottschalk, 212 Ga. App. 88, 441 S.E.2d 281 (1994); Harper v. State, 213 Ga. App. 611, 445 S.E.2d 300 (1994); Leeks v. State, 226 Ga. App. 227, 483 S.E.2d 691 (1997); In re C.I.W., 229 Ga. App. 481, 494 S.E.2d 291 (1997); High v. Parker, 234 Ga. App. 675, 507 S.E.2d 530 (1998); Taylor v. State, 259 Ga. App. 457, 576 S.E.2d 916 (2003); Mitchell v. State, 262 Ga. App. 759, 586 S.E.2d 686 (2003); Newton v. State, 261 Ga. App. 762, 583 S.E.2d 585 (2003); Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480 (2009); Delgiudice v. State, 308 Ga. App. 397, 707 S.E.2d 603 (2011); Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011); Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011); Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011). Judgment Notwithstanding Verdict New trial may be granted without demanding a judgment n.o.v. for the weight of evidence may be on one side, yet

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there be some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence, the verdict may still be against the weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Denial of new trial on general grounds unexcepted to preclude judgment notwithstanding verdict on appeal. - When trial judge denies motion for new trial on general grounds, the judge finds that verdict is not against weight of evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support verdict or that evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Application Proper standard of review. - In a prosecution for, inter alia, hijacking a motor vehicle, a trial court incorrectly applied the standard in Jackson v. Virginia, 443 U.S. 307 (1979), when deciding a defendant’s challenge in a motion for a new trial as to the weight of the evidence; the trial court had to reconsider the claim pursuant to O.C.G.A. § 5-5-21. Rutland v. State, 296 Ga. App. 471, 675 S.E.2d 506 (2009). Jury’s fact finding not final until verdict approved when motion for new trial is made. - No finding of fact by jury is final or conclusive when motion for new trial is presented, unless and until that verdict is approved by trial judge. Mills v. State, 188 Ga. 616, 4 S.E.2d 453 (1939). Trial court’s written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51. Jackson Nat’l Life Ins. Co. v. Snead, 231 Ga. App. 406, 499 S.E.2d 173 (1998). Denial of new trial becomes law of case. - Absent specific appeal from rul-

ing on motion for new trial or enumerating the ruling as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). No double jeopardy bar. - Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Successful motion for new trial at trial level, precludes later plea of former jeopardy. - Motion for new trial, if granted at trial level, is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Grant of new trial under section not same as finding evidence legally insufficient. - Grant of new trial by trial court on ground that verdict is against the weight of evidence under this section, does not amount to a finding that evidence is legally insufficient, and does not thereby bar a second trial under the double jeopardy clause of the U.S. Constitution. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979). Distinction between legally insufficient evidence and verdict against weight of evidence. - There is a distinction at law between a decision holding the evidence legally insufficient and a discretionary decision of the trial court that the verdict is against the weight of the evidence. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979). When some evidence supports verdict. - When trial judge has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not

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Application (Cont’d) error. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962). Because the state proved venue through testimony that the address of the crime scene was in a specific county and because counsel’s actions were within the bounds of reasonable professional conduct, the trial court properly denied the defendant’s motion for a new trial. Henry v. State, 279 Ga. 615, 619 S.E.2d 609 (2005). Expert evidence. - Driver’s motion for a new trial was properly denied when an expert witness in the field of accident reconstruction opined that the second driver’s collision was unavoidable since the driver changed lanes immediately in front of the second driver’s vehicle. Flynn v. Mack, 259 Ga. App. 882, 578 S.E.2d 488 (2003). In a suit when plaintiff mulch seller sought money owed for plastic mulch, and defendants, two individuals doing business as a company, counterclaimed regarding crop damage due to the mulch deteriorating prematurely, the trial court did not abuse the court’s discretion in denying the company’s motion for a new trial after the jury returned a verdict in the seller’s favor because, despite the company’s claim on appeal that the evidence supported a finding of breach of express warranty, the testimony of the seller’s vice-president that the seller advised customers on the order form that it could not provide a warranty, provided some evidence to support the verdict. McLeod v. Robbins Ass’n, 260 Ga. App. 347, 579 S.E.2d 748 (2003). Inadequacy of damages for pain and suffering. - Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315 (1935); Brown v. Garcia, 154 Ga. App. 837, 270 S.E.2d 63 (1980). Improper award of damages. - Trial court erred in denying defendants’

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motion for a new trial pursuant to O.C.G.A. § 5-5-21 in an action by a produce company and a storage company for damages which arose from an alleged joint venture to grow onions, and the packing, grading, and storage of onions thereafter; the trial court erred in awarding the produce company the total amount of lost profits for onions which the defendant did not account for, as the agreement provided that the defendants and the company would split the profits or losses evenly, and because the storage company failed to provide any evidence of the company’s anticipated expenses, and therefore the company’s proof of lost profits was insufficient as a matter of law. Williamson v. Strickland & Smith, Inc., 263 Ga. App. 431, 587 S.E.2d 876 (2003). Fact that verdict is generous is not basis for setting verdict aside. - Trial judge may exercise sound discretion in refusing new trial in case where verdict may be decidedly and strongly against weight of evidence, but a generous verdict will not be set aside merely for that reason. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff ’d, 184 Ga. 203, 190 S.E. 582 (1937). Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909). Although plaintiff introduced more witnesses than defendant, judge’s refusal of new trial is not error. McGriff v. McGriff, 154 Ga. 560, 115 S.E. 21 (1922). Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448, 42 S.E. 785 (1902). Court refusal to accept verdict not abuse of discretion. - In action concerning a stock sales agreement, trial court did not abuse the court’s discretion in declining to accept a jury verdict that required the defendant specifically to perform the agreement, but also recommended that bank balance and surplus stock in a warehouse be turned over to the defendant. Brown v. Reeves, 168 Ga. App. 403, 309 S.E.2d 654 (1983). Court abuses discretion by refusing to set aside excessive award. - Trial

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judge fails to exercise the discretion vested in the judge by law when the judge agrees that the amounts awarded to the plaintiff by the jury are excessive but refuses to set the amount aside or order a new trial on the basis that the judge does not want to impose the judge’s opinion upon the jury. Story v. Monteith, 176 Ga. App. 853, 338 S.E.2d 32 (1985), rev’d on other grounds, 255 Ga. 528, 341 S.E.2d 1 (1986). Newly discovered evidence and alleged perjury insufficient for new trial. - Trial court did not err in denying a defendant’s motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 based on newly discovered evidence because the ‘‘new’’ evidence - that the defendant’s girlfriend got ‘‘five hundred’’ from the defendant in connection with the incident - did not come to the defendant’s knowledge since the prior trial, and the girlfriend’s alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555, 669 S.E.2d 514 (2008). As a deed grantor’s motion for a new trial based on the weight of the evidence pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 was premature, the motion was void and a trial court’s denial thereof was not error; further, there could be no review thereof on appeal as an independent error. Dae v. Patterson, 295 Ga. App. 818, 673 S.E.2d 306 (2009). Motion for judgment notwithstanding verdict as motion for new trial in DUI case. - Assuming that the defendant’s post-verdict motion for judgment notwithstanding the verdict was a motion for new trial, it was, nevertheless, wholly without merit because the evidence was sufficient to convict the defendant of driving under the influence (to the extent that the defendant was a less-safe driver, O.C.G.A. § 40-6-391(a)(1)) because a police officer administered two field-sobriety tests, and defendant exhibited clues of impairment on each. Masood v. State, 313 Ga. App. 549, 722 S.E.2d 149 (2012). Appeal or Certiorari From Denial of New Trial Appellate court does not have same discretion as trial judge who ap-

proved verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909). Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979). Function of appellate court is to review sufficiency of evidence, not to determine the weight of the evidence. Though evidence might have authorized a different verdict or verdict is supported by only slight evidence or evidence is conflicting or preponderates against the verdict, when no material error of law appears, the appellate court will not disturb the trial judge’s judgment in overruling the motion for new trial. McBowman v. Merry, 104 Ga. App. 454, 122 S.E.2d 136 (1961). Discretion of superior court, on certiorari, to grant new trial in lower court. - Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950). First grant of new trial is not normally reviewable by appellate courts. - First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932). Ruling on a motion for new trial under Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) or former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) did not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Sole question on appeal from denial on general grounds. - Appellate court will not disturb trial court’s refusal to grant new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be character of witnesses. McBowman v. Merry, 104 Ga. App. 454, 122 S.E.2d 136 (1961). On appeal of denial of motion for new trial based on general grounds, sole question for appellate court is whether there is

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Appeal or Certiorari From Denial of New Trial (Cont’d) any evidence to support the verdict. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. Ricketson v. Fox, 247 Ga. 162, 274 S.E.2d 556 (1981). Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and 5-5-21, the language used by the trial court in the court’s discretionary determinations that the evidence at trial was not ‘‘sufficiently close’’ to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court’s discretion under the relevant statutory provisions. Brockman v. State, 739 S.E.2d 332, No. S12P1490, 2013 Ga. LEXIS 201 (2013). Appellate court cannot set aside verdict on general grounds trial judge could have relied upon. - In considering case in which verdict of jury has approval of trial judge, appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of the discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932). Appellate court cannot grant new trial if any evidence supports verdict. - While appellate division of Municipal Court of Atlanta may grant new trial when no evidence supports the verdict, when there is some evidence on which the verdict could be based, and such verdict has the approval of the trial judge, the appellate division of Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass’n, 52 Ga. App. 374, 183 S.E. 350 (1936). Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant’s motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780, 466 S.E.2d 667 (1996). New trial motion denied in criminal case. - Evidence was sufficient to

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support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant’s teenage children made a cell phone call to the children’s parents’ home to tell the parents that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim’s death. Gear v. State, 288 Ga. 500, 705 S.E.2d 632 (2011). Illustrative cases. - Trial court properly denied defendant’s motion for a new trial despite defendant’s claim that there was insufficient evidence to prove the identity and value of the items which defendant shoplifted, as there was sufficient evidence to prove the identity and value of the items given that: (1) a store manager saw defendant place items from the manager’s store into the trunk of defendant’s car and identified defendant in a showup identification less than 30 minutes later, after the defendant was stopped for shoplifting at a second store; (2) the manager from the first store identified a number of items that were found in the defendant’s trunk as coming from the first store based on the store code markings on the items; and (3) the packages contained pricing labels. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644 (2003). Because a condemnee did not claim lost profits or business losses, the trial court properly limited the condemnee’s evidence to the value of the property taken and consequential damages to the remainder; because the jury’s valuation was within the range of the evidence, the trial court properly denied the condemnee’s motion for a new trial. Thornton v. DOT, 275 Ga. App. 401, 620 S.E.2d 621 (2005). In a suit on a guaranty, the trial court did not err in denying a guarantor’s motion for a new trial on general grounds, as

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the jury’s award fell within the range of damages established by the evidence, the guarantor consented to the bank’s modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court’s instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006). Although defendant received effective assistance from trial counsel, because defendant did not waive or abandon defendant’s claims under O.C.G.A. §§ 5-5-20 and 5-5-21, the trial court erred in denying defendant’s motion for new trial. Hartley v. State, 299 Ga. App. 534, 683 S.E.2d 109 (2009). Trial court did not err in refusing to grant the defendant’s motion for a new trial under O.C.G.A. § 5-5-21 because the evidence establishing that the defendant

and the victims had engaged in a heated argument, which escalated to preparations for a physical altercation, was sufficient to sustain the defendant’s voluntary manslaughter conviction, O.C.G.A. § 16-5-2(a); given the heated exchange and the defendant’s belief that the defendant was in serious danger, there was sufficient provocation to excite the passion necessary for voluntary manslaughter, and the jury was authorized to reject the defendant’s claim of self-defense under O.C.G.A. § 16-3-21(a) and conclude that the defendant was so influenced and excited that the defendant reacted passionately, rather than simply in self defense, when the defendant shot an unarmed victim. White v. State, 312 Ga. App. 421, 718 S.E.2d 335 (2011).

RESEARCH REFERENCES C.J.S. - 23 C.J.S., Criminal Law, § 1973. 66 C.J.S., New Trial, §§ 117, 125, 237 et seq., 283. ALR. - Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 ALR 779; 95 ALR 1163. Power of trial court to dismiss defen-

dant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 ALR 187. Court’s power to grant new trial as to both defendants, over their objection, because of verdict holding employer and absolving employee for latter’s negligence, 16 ALR2d 969.