text:
    A01A2057.
    JARVIS v. THE STATE.
    (560 SE2d 29)
   Blackburn, Chief Judge.

William Jackson Jarvis was convicted of child molestation and aggravated child molestation. Following the denial of his motion for new trial as amended, Jarvis filed this appeal. Jarvis contends that the trial court erred in admitting his inculpatory statement to police, misapplied the rape shield statute thereby excluding otherwise admissible evidence, and incorrectly charged the jury on two legal principles. We find no merit to these claims and affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the victim’s stepfather took her to a sheriffs department after learning she had been victimized by Jarvis. To a female deputy, the 14-year-old girl revealed what had occurred. While at the hospital, the victim told a nurse that she had had sexual intercourse with a 42-year-old man. Shortly after the incident, the victim also told her mother about it. The victim was a friend of Jarvis’s stepdaughter, and the incident took place during a visit to Jarvis’s home when the victim left with Jarvis to go feed a neighbor’s dog. She testified that while at the neighbor’s home, Jarvis had sexual intercourse with her and orally sodomized her. She denied wanting to experience oral sex.

Investigator James E. Spooner, Jr. set up an interview with Jarvis to talk to him about the accusations that had come to surface involving the victim. Spooner testified that he and Investigator Frank Green approached Jarvis at his place of employment and “asked would he mind coming over to the sheriff’s office when he got off work to speak with us.” While still at work, Jarvis indicated that he probably knew what it was about and said that the girl was 14 which he understood to be the age of consent, “but if it wasn’t he guessed he was in a lot of trouble.” Later that same day, before the interview commenced, Jarvis was advised of his rights and signed a waiver of rights form. The interview including the advisement of rights was apparently recorded on videotape. When investigators asked Jarvis about the alleged incident, Jarvis, who was nearly 43 years old at the time of the crimes, told police that he believed age 14 to be the age of consent.

At trial, Jarvis, a married man, testified on his own behalf. He admitted having sexual intercourse with the victim and knowing that she was only 14. He explained that he did not believe that he was breaking the law since he did not realize she was underage. He claimed that she invited or instigated the activity. He admitted having a condom with him for the occasion.

1. Jarvis contends that his incriminating remarks made to police were improperly admitted. He claims that after he specifically asked if he was in trouble and whether he needed to speak to an attorney, he should not have been further questioned. He argues that he did not waive his rights with his “eyes open” and was misled by the State. He wants this Court to decide if “such advisement [of his Miranda rights] was sufficient.”

The trial court conducted a Jackson-Denno hearing and determined that the comments Jarvis made to investigators were admissible. The trial court expressly found that prior to any questioning, Jarvis was, in fact, read his Miranda rights, and it is undisputed that Jarvis signed a waiver of rights form. The interview was recorded on a videotape, and the jury was permitted to view it. However, neither the videotape nor a transcript of the videotape nor a transcript of the Jackson-Denno hearing was included in the appellate record. In their absence, there is nothing for review. See Reedman v. State.

2. Jarvis contends that notwithstanding the rape shield statute, he was entitled to question the victim about her prior sexual history. He argues that he needed to question her about her sexual involvement with other men to show that she was sexually active and to justify the reasonableness of his belief that she “was therefore legally old enough to have voluntary sex.”

With some limited exceptions, the rape shield statute, OCGA § 24-2-3 (b), excludes evidence relating to the past sexual behavior of the complaining witness. Rocha v. State. This statute applies in child molestation cases. McGarity v. State “Generally, in a child molestation case[,] evidence as to the victim’s reputation for nonchastity is not admissible. Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex.” (Citation omitted.) Vargas v. State. When consent is not a defense, evidence of prior sexual behavior is generally not material to the issues. Chastain v. State. Al-though Jarvis sought to introduce evidence about the victim’s purported past sexual history with other men, such evidence was properly excluded since it did not fall under any exception listed in OCGA § 24-2-3 (b). Nor was Jarvis seeking to introduce it to refute evidence introduced about “child abuse syndrome.” See Marion v. State. Since no exception applied, inquiry into the victim’s sexual history was properly foreclosed. See Williams v. State. .

3. Jarvis claims that the trial court erred by failing to charge the jury on sexual battery and by failing to give his written requested charge on contributing to the delinquency of a minor.

(a) Although Jarvis concedes that he failed to request an instruction on sexual battery, he argues that the trial court was required sua sponte to provide that instruction. But, absent a timely, written request, the trial court need not provide a charge on a lesser included offense not alleged in the indictment. See State v. Stonaker And,

[a] charge on sexual battery as a lesser included offense of child molestation is required when the indictment puts the defendant on notice that he could be convicted of the lesser included offense and the evidence presented at trial is sufficient to establish the lesser included offense consistent with these averments.

Decided January 14, 2002

Reconsideration denied February 6, 2002

(Emphasis in original.) Strickland v. State.

Here, as in Strickland, supra, the evidence presented at trial did not support a charge on sexual battery. Jarvis admitted having engaged in sexual activity with the victim. The victim’s testimony, if believed, would establish that Jarvis committed the crime of child molestation and not the crime of sexual battery. This evidence establishes all the elements of child molestation: an immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16-6-4 (a). When the evidence establishes that the defendant committed the charged offense of child molestation with the requisite specific intent of arousing or satisfying the sexual desires of either the defendant or the victim, a charge on sexual battery is not warranted. Strickland, supra at 777. Since the evidence shows without dispute the commission of the greater offense, no error has been shown. See Jones v. State.

(b) Although Jarvis did seek a charge on contributing to the delinquency of a minor, the trial court properly refused the request. “Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. When any part of the requested charge is confusing, inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” (Citations omitted.) Jones v. State. This offense requires “[k]nowingly and willfully encourag[ing], causing], abet[ting], conniv[ing], or aid[ing] a minor in committing a delinquent act as . . . defined in Code Section 15-11-2, relating to juvenile proceedings.” OCGA § 16-12-1 (b) (1). Since no evidence showed that the victim engaged in a “delinquent act” as defined by OCGA § 15-11-2 (6), the requested charge was properly refused. Jones v. State, 242 Ga. App. at 359 (3).

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

       Defense counsel and the State agreed that the court reporter would not be required to take down the audio portion of the videotape shown to the jury.

        Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763) (1989).

        Rocha v. State, 248 Ga. App. 53, 55-56 (2) (545 SE2d 173) (2001).

        McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319) (1997).

        Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987).

        Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987).

        Marion v. State, 206 Ga. App. 159 (1) (424 SE2d 838) (1992).

        Williams v. State, 236 Ga. App. 667, 668 (1) (512 SE2d 363) (1999).

        State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

        Strickland, v. State, 223 Ga. App. 772, 776 (1) (a) (479 SE2d 125) (1996).

        Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998).

        Jones v. State, 242 Ga. App. 357, 359 (3) (529 SE2d 644) (2000).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A2214.
    TAYLOR v. YOUNG.
    (560 SE2d 40)
   Ellington, Judge.

Following the denial of his motion for new trial, James Lee Taylor III appeals the probate court’s order denying his caveat to Senell Marie Young’s petition for letters of administration for the estate of Young’s mother, Senell Mary James. See OCGA § 53-6-21 (Revised Probate Code of 1998). Taylor contends the probate court lacked jurisdiction to rule on a contested matter and erred in finding he was not the common law husband of the decedent, as he claimed in his caveat to the petition. Finding no error, we affirm.

1. Taylor contends the probate court exceeded its jurisdiction in adjudicating the contested issue of whether he was the common law husband of the decedent. The probate court held an evidentiary hearing on Taylor’s caveat on June 14, 2000, with Pinkie T. Toomer, an attorney and chief clerk of the probate court, acting as the hearing officer. Judge F. E. Propst of the Probate Court of Fulton County appointed Toomer to exercise the court’s jurisdiction in the matter pursuant to OCGA § 15-9-13 (a). The order disposing of Taylor’s caveat, however, indicated that Toomer was “[e]xercising the jurisdiction of the judge of the Probate Court as provided by OCGA § 15-9-36 (c).” As Taylor correctly pointed out at the hearing on his motion for new trial, OCGA § 15-9-36 (c) (1) authorizes the chief clerk to act as a hearing officer but only as to uncontested matters. In the order denying Taylor’s motion for new trial, Toomer corrected as a “typographical error” the statutory reference to the source of jurisdiction and followed her signature with the language “[e]xercising the jurisdiction of the judge of the Probate Court as provided by OCGA § 15-9-13 (a).”

(a) Taylor contends Toomer’s exercise of jurisdiction was unauthorized because neither the original dispositive order nor the order denying his motion for new trial complied with Uniform Probate Court Rule 3. Rule 3 requires appointments pursuant to OCGA § 15-9-13 (a) to be “by written order which shall specify the cases or time period covered and shall be recorded in the minutes of the court.” Rule 3 further requires an attorney signing an order while acting as judge pursuant to such authority to note “following such signature: ‘Exercising the jurisdiction of the probate court pursuant to order of Judge_, dated_, as provided by OCGA § 15-9-13 (a).’ ” It is undisputed that Toomer’s order omitted a portion of the language required by Rule 3, i.e., “pursuant to order of Judge F. E. Propst, dated June 14, 2000.” Taylor identified no support, however, and we find none, for the position that the documentary requirements of Rule 3 are jurisdictional in nature. Therefore, when an attorney has been appointed to act in a judge’s absence, in accordance with OCGA § 15-9-13 (a), the omission of the quoted language from an order entered by the substitute judge does not invalidate the judge’s exercise of jurisdiction over contested probate matters. See OCGA §§ 9-11-58 (requiring judge’s name and title to be typed, printed, or stamped after signature but providing “[t]he failure of the judgment to have the typed, printed, or stamped name of the judge shall not invalidate the judgment”); 9-11-60 (g) (“[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders”).

(b) Taylor further suggests that Toomer lacked jurisdiction to rule on the contested matter because the two orders appointing Toomer to exercise jurisdiction in this matter were not actually entered before the hearing on his caveat. This assertion is contrary to the record certified by the clerk and transmitted to this Court. Clerks and deputy clerks of court are public officers and are presumed to discharge their duties properly. Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988). The authenticated records of the office of a clerk of court are presumed to speak the truth. Swift v. State, 229 Ga. App. 772, 776 (2) (f) (495 SE2d 109) (1997). Taylor’s argument is supported with innuendo only, not with evidence sufficient to overcome the presumption. Again, Taylor’s argument that Toomer lacked jurisdiction over his caveat to Young’s petition lacks merit.

2. Taylor contends the probate court erred in finding that he was not the common law husband of the decedent. We are precluded from considering this enumeration because Taylor failed to include a transcript of the evidentiary hearing or an acceptable substitute for a transcript. Court of Appeals Rule 27 (c) (3) (i); OCGA § 5-6-41 (g), (i); Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 444 (1) (462 SE2d 384) (1995); Prada v. Administrator, Small Business Admin., 208 Ga. App. 710 (432 SE2d 274) (1993). Further, Taylor’s failure to cite any authority or argument in support of this enumeration precludes us from considering it. Court of Appeals Rule 27 (c) (2); Gentry v. Chateau Properties, 236 Ga. App. 371, 374 (5) (511 SE2d 892) (1999). In the absence of factual support and legal authority for Taylor’s claim of error, we must assume that the probate court’s judgment was supported by the evidence and legally correct. Parks v. Texas Commerce Bank, 229 Ga. App. 467, 468 (494 SE2d 276) (1997). Therefore, we must affirm. Id.

Decided January 16, 2002

Reconsideration denied February 6, 2002.

Jesse L. Young, for appellant.

R. Edward Furr, Jr., for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       OCGA § 15-9-13 (a) provides, in pertinent part:
      Whenever a judge of the probate court is disqualified to act in any case or because of sickness, absence, or any other reason is unable to act in any case, the judge of the probate court may appoint an attorney at law who is a member of the State Bar of Georgia to exercise the jurisdiction of the probate court.

       OCGA § 15-9-36 (c) (1) provides, in pertinent part: “the chief clerk of the probate judge . . . may exercise all the jurisdiction of the judge of the probate court concerning uncontested matters in the probate court.”


author: Mikell, Judge.

text:
    A01A2276.
    JOHNSON v. AMERICAN NATIONAL RED CROSS et al.
    (569 SE2d 242)
   Mikell, Judge.

Bernice Mantooth brought the underlying action against the American Red Cross (the “Red Cross”), General Hospitals of Galen, Inc. d/b/a Cartersville Medical Center (“CMC”), two individual doctors, and two nurses, alleging claims of professional negligence, ordinary negligence, and negligent and intentional infliction of emotional distress. Mantooth filed suit after she was given a transfusion of blood from a donor who had lived in a region of Africa where a rare undetectable strain of HIV was known to exist. After Mantooth’s death on May 23, 2001, Lester Johnson, the executor of her estate (the “Estate”), continued to pursue her claims. Presently, the Estate appeals the trial court’s grant of the Red Cross’s motion to open default and motion for summary judgment, and the grant of a partial summary judgment in favor of CMC. We affirm.

The record shows that prior to her death at age 75, Mantooth suffered from serious medical conditions including anemia, angina, breast cancer, heart disease, lung cancer, asthmatic bronchitis, diabetes, kidney failure, and pneumonia. She never tested positive for HIV or the AIDS virus.

The incident giving rise to Mantooth’s underlying action took place on August 29, 1998, when she went to the CMC emergency room complaining of chest pain and shortness of breath. After an initial examination by the attending emergency room physician, Mantooth was examined by Dr. David Kim, who was on call for Mantooth’s private internist, Dr. Sam Howell. Mantooth was diagnosed with exacerbation of emphysema. Given her current condition and medical history, Dr. Kim ordered that she receive two units of blood.

Fifteen minutes after the transfusion began, Mantooth complained of severe pain in the left side of her chest that radiated down her left shoulder and arm and into her back. Dr. Kim transferred Mantooth to the intensive care unit, where she was treated for asthma, congestive heart failure, and chest pain. When her condition stabilized, Mantooth was transferred to Crawford Long Hospital, where she was discharged several days later. Mantooth was subsequently diagnosed with lung cancer.

On October 28, 1998, the Red Cross notified CMC that it had supplied the hospital with blood that did not meet its standards. As a precaution, the Red Cross normally did not allow people who had lived in Central Africa for longer than 12 months to donate blood. The Red Cross became aware that the blood at issue had come from a donor who had lived for 13 months in a region of Africa where a rare undetectable strain of HIV known as “Group O” had been found. The donor did not test positive for HIV in the five years between the time he lived in Africa and when he donated blood, nor was there any reason, other than his stay in Central Africa, to believe that he had been exposed to the virus. CMC determined that the blood had been given to Mantooth and notified her physician, Dr. Howell, on November 4, 1998.

On or about December 8, 1998, Dr. Howell informed Mantooth that the blood used in the August transfusion should not have been accepted by the Red Cross. He arranged for Mantooth to undergo an HIV test on December 9, and the results were negative. Mantooth had additional HIV tests in March and April 1999, and those results were negative as well. On December 24, 1998, the Red Cross sent Mantooth a letter in which it explained that the likelihood that the blood she received was tainted was “extremely remote.”

Mantooth was very upset about the possibility that she had been exposed to an undetectable strain of HIV and claimed that she lived in fear that she had the virus and would pass it to her family members. She did not seek medical treatment for her severe emotional distress, nor did she seek treatment for the physical damage allegedly caused by the transfusion. Mantooth conceded that she did not incur any medical expenses as a direct result of the transfusion.

Mantooth filed suit on August 27, 1999, alleging that Dr. Kim and Dr. Howell were negligent and that CMC was vicariously liable. She also included claims of negligence and negligent and intentional infliction of emotional distress against the Red Cross. The Red Cross was served with the complaint on September 3, 1999; however, due to a misunderstanding in the office of the General Counsel, the Risk Management Division of the organization did not receive the complaint until November 1. The Red Cross moved to open the default on November 18, 1999, and the trial court subsequently granted the motion.

CMC filed a motion for partial summary judgment on September 15, 2000, and the trial court granted it, concluding that the hospital could not be held vicariously liable for the doctors’ conduct, because they were independent contractors and not employees of CMC. The court also granted summary judgment to the Red Cross based on the conclusion that Mantooth failed to present any evidence that she was actually exposed to HIV, and thus there was no basis for her claims of negligence or infliction of emotional distress.

1. First, the Estate argues that the trial court erred in granting the Red Cross’s motion to open default. OCGA § 9-11-55 (b) allows a default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case. The four conditions are: (1) a showing made under oath, (2) an offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. Ford v. St. Francis Hosp., 227 Ga. App. 823, 824-825 (1) (490 SE2d 415) (1997). “Whether to open the default on one of the three grounds rests within the discretion of the trial judge.” (Citation and punctuation omitted.) Id. at 825 (1). “The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law.” (Punctuation and footnote omitted.) Kaylor v. Atwell, 251 Ga. App. 270, 271 (1) (553 SE2d 868) (2001). See also Exxon Corp. v. Thomason, 269 Ga. 761, 762 (2) (504 SE2d 676) (1998); Patel v. Gupta, 234 Ga. App. 441, 443 (1) (507 SE2d 763) (1998).

Contrary to the Estate’s argument, we conclude that the four conditions for opening default were met. First, the Red Cross provided the sworn affidavit of Randy Jouben, a corporate claims associate in the Risk Management Division of the Red Cross, to explain the delay in responding to Mantooth’s complaint. Second, the Red Cross offered to plead instanter and attached an answer to its motion to open default. Third, it announced that it was ready to proceed to trial. Fourth, the Red Cross set up a meritorious defense through its answer. This condition does not require a defendant to show that it will “completely defeat plaintiff’s claim”; rather, the defendant must demonstrate that “if relief from default is granted, the outcome of the suit may be different from the result if the default stands.” Exxon Corp., supra at 761 (1). The Red Cross presented defenses including failure to state a claim upon which relief can be granted, assumption of the risk, and Mantooth’s consent to the blood transfusion. “Although these defenses were not set out in great factual detail, they are sufficient to satisfy OCGA § 9-11-55 (b).” Ford, supra at 825 (1). Having concluded that the Red Cross met the four requisite conditions, we now must determine if one of the three grounds for opening default existed.

The court’s order does not specify the ground on which it relied in opening the default; therefore, we will presume the court’s decision was based on the “proper case” ground. Ford, supra at 826 (1). This ground is broader than the other two, and we will not interfere unless the court’s discretion was manifestly abused. Miller v. Tranakos, 198 Ga. App. 668, 670 (1) (402 SE2d 772) (1991). See also Ford, supra.

Upon reviewing the record, we conclude that the trial court did not manifestly abuse its discretion in opening the default. Jouben’s affidavit shows that the complaint was served on the Medical Director of the Regional Chapter of the Red Cross in Atlanta; that the Risk Management Division did not receive the complaint until November 1, 1999; that there was a misunderstanding in the office of the General Counsel which led the Red Cross to believe that the complaint was being handled properly; and that immediately upon receiving the complaint, the Risk Management Division forwarded it to the third-party administrator for the Red Cross, who sent it to outside counsel. Additionally, there is no evidence that Mantooth was prejudiced by the opening of default. See Ford, supra at 826.

The Estate’s reliance on Azarat Marketing Group v. Dept. of Administrative Affairs, 245 Ga. App. 256 (537 SE2d 99) (2000), and Ellis v. Five Star Dodge, 242 Ga. App. 474 (529 SE2d 904) (2000), is misplaced. Those cases involved the excusable neglect ground for opening default, while the case sub judice involves the proper case .ground. In Ellis, supra, we held that the trial court abused its discretion in opening default on the basis of excusable neglect. But as we recognized in Miller, supra, a trial judge is afforded broader discretion in cases involving the proper case ground than in those in which the court bases its decision on excusable neglect. Additionally, in Azarat Marketing, we affirmed the court’s refusal to open default, but we did not hold that it would have been an abuse of discretion for the court to open default. In fact, we recognized that “the trial court. . . could have found excusable neglect, but did not.” Id. at 259 (2).

Similarly, First Union Nat. Bank &c. v. Floyd, 198 Ga. App. 99 (400 SE2d 393) (1990), is also distinguishable from the case sub judice. In First Union, as in Azarat Marketing, we held that the trial court did not err in refusing to open default under the providential caúse or excusable neglect grounds. Again, we recognized that “[w]e cannot hold that as a matter of law the trial judge in this case could not have found, in his broad discretion, that the explanation offered by defendant nevertheless made a ‘proper case’ for opening the default.” First Union, supra at 101 (2). At most the cases cited by the Estate show that it might not have been an abuse of discretion if the court had denied the Red Cross’s motion or that the Red Cross may not have satisfied the providential cause or excusable neglect standards. However, these cases do not affect our consideration of the trial court’s decision on the proper case ground. Accordingly, the trial court did not abuse its discretion in finding that a proper case had been made for opening default and in granting the Red Cross’s motion.

2. Next, the Estate assigns error to the court’s grant of summary judgment in favor of the Red Cross. The court found that Mantooth failed to present evidence of any recoverable damages; therefore, the Red Cross was entitled to summary judgment on her claims of ordinary and professional negligence and negligent infliction of emotional distress. We find no error and affirm.

Summary judgment is proper when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

We agree with the trial court that Mantooth’s failure to demonstrate recoverable damages is fatal to all of her claims of negligence against the Red Cross. In order to maintain a cause of action for ordinary or professional negligence, a plaintiff must prove the following elements: (1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff. Dow Chem. Co. v. Ogletree, Deakins, Nash &c., 237 Ga. App. 27 (514 SE2d 836) (1999); Grant v. Perimeter Mall Mgmt. Corp., 215 Ga. App. 652, 653 (452 SE2d 153) (1994). “If the defendant is successful in piercing plaintiff’s pleadings with regard to one essential element, the defendant is entitled to summary judgment regardless of whether issues of fact remain with regard to the other elements.” Grant, supra.

Even assuming, arguendo, that the Red Cross breached a duty by failing to follow its own standards concerning blood donors who have lived in certain regions of Africa, Mantooth could not recover without demonstrating damage proximately caused by the Red Cross’s breach. Ridgeview Institute v. Handley, 224 Ga. App. 533, 536 (3) (481 SE2d 531) (1997). In her complaint, Mantooth stated that her damages attributable to the actions of the Red Cross were emotional distress caused by the fear of contracting HIV and the AIDS virus, pain and suffering, and medical expenses. Mantooth deposed that she was very upset about the possibility that she had been exposed to HIV and that she lived in fear that she had the virus. But she did not seek medical treatment for her emotional distress, nor did she seek treatment for the physical damage allegedly caused by the transfusion. Mantooth conceded that she did not incur any medical expenses as a direct result of the transfusion. Furthermore, there was no medical evidence that the Red Cross caused the physical pain Mantooth suffered during the blood transfusion. Thus, the only alleged damage supported by the record is Mantooth’s emotional distress resulting from her fear that she had been exposed to HIV.

However, in Russaw v. Martin, 221 Ga. App. 683, 686 (1) (472 SE2d 508) (1996), we held that a plaintiff must prove actual exposure in order to recover for the fear of being exposed to HIV and/or the AIDS virus. “To allow recovery for emotional injuries and mental anguish, without any proof whatsoever that [the plaintiff] was actually exposed to HIV ... is per se unreasonable.” Id. Contrary to the Estate’s argument, the trial court’s application of the Russaw decision to the case sub judice was not erroneous. In Russaw, as in the present case, the plaintiff feared contracting HIV after an allegedly negligent event. Further, the plaintiff in Russaw, like Mantooth, was unable to demonstrate actual exposure to HIV. “Because the [plaintiff] offered no evidence of actual exposure to HIV or AIDS . . . and no evidence of a channel of communication of disease, we hold that [her] recovery for fear and mental anguish is per se unreasonable as a matter of law.” Id. at 687 (1). See also McQuaig v. McLaughlin, 211 Ga. App. 723, 727 (2) (440 SE2d 499) (1994) (damages for mental distress and fear of AIDS associated with blood transfusion were not recoverable absent a showing of physical injury).

The Estate argues that Mantooth should not have been required to demonstrate actual exposure, because the “Group O” strain of HIV is undetectable by known tests. We reject this argument, because the Red Cross can never be completely sure that the blood it supplies is free of undetectable diseases. In McAllister v. American Nat. Red Cross, 240 Ga. 246, 249 (2) (240 SE2d 247) (1977), the Supreme Court exempted suppliers of blood from being held strictly liable under a product liability theory. The Supreme Court cited the case of Heirs of Fruge v. Blood Svcs., 506 F2d 841, 844-845 (II) (5th Cir. 1975) (Louisiana law), for the proposition that “the obvious and overwhelming need for blood and blood products to be used in transfusions and in surgery” could be met only if suppliers were not threatened by “crippling legal liability for a very small but — according to the majority of medical authorities — hard to avoid risk that their blood carried indetectable [sic] viral hepatitis.” Essentially, our Súpreme Court recognized that blood banks could not survive if they were subject to liability for a blood recipient’s fear of catching an undetectable disease in the absence of a full showing of negligence. McAllister, supra.

It follows that in the case sub judice, the trial court did not err in refusing to exempt Mantooth from the legal requirement of demonstrating actual exposure to HIV in order to recover damages for emotional distress resulting from the Red Cross’s negligence. See Russaw, supra. Because Mantooth could not meet this requirement, the trial court properly granted summary judgment on her negligence claims against the Red Cross.

3. Furthermore, the trial court properly granted summary judgment in favor of the Red Cross on Mantooth’s claim of intentional infliction of emotional distress. The four elements which must be proved in order to sustain a claim of intentional infliction of emotional distress are the following: (1) the conduct must be intentional or reckless; (2) it must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Northside Hosp. v. Ruotanen, 246 Ga. App. 433, 435 (541 SE2d 66) (2000).

We do not doubt that the plaintiff has satisfied the third and fourth elements. But there is no evidence that the Red Cross intended to inflict emotional pain on Mantooth. Nor was its conduct reckless. An employee failed to notice that a donor had, five years prior to his donating blood, stayed for one month longer in Central Africa than the allowable twelve months. The consequences of the employee’s omission could have been horrible. But his or her act was negligence and not an intentional infliction of emotional distress. Accordingly, the trial court properly granted summary judgment in favor of the Red Cross.

4. Finally, the Estate argues that the trial court erred in granting partial summary judgment to CMC. Mantooth asserted claims of professional negligence against Dr. Kim and Dr. Howell. She alleged that Dr. Kim was negligent in ordering that she receive a blood transfusion too quickly and in failing to stop the transfusion immediately upon learning of the pain she experienced, and that Dr. Howell was negligent in his treatment of her lung cancer and in failing to promptly notify her of the potentially tainted blood she received. Mantooth sought to hold CMC vicariously liable for the doctors’ conduct. CMC successfully moved for partial summary judgment on the issue of vicarious liability. We conclude that the trial court did not err.

First, it is clear from the record that Dr. Kim and Dr. Howell were not employees of CMC; rather, the hospital merely granted them active medical staff privileges. “The true test of whether the relationship is one of employer-employee ... is whether the employer . . . assumes the right to control the time, manner and method of executing the work.” (Punctuation omitted.) Holmes v. Univ. Health Svc., 205 Ga. App. 602, 603 (423 SE2d 281) (1992), citing Allrid v. Emory Univ., 249 Ga. 35, 39-40 (285 SE2d 521) (1982). Here, the doctors maintained private medical practices during the relevant time. CMC did not compensate Dr. Kim and Dr. Howell for medical services performed at the hospital, nor did it reserve the right to control the time, manner, or method of their patient care.

Contrary to the Estate’s argument, the recruiting agreement between CMC and Dr. Kim did not transform Dr. Kim into an employee of the hospital. That agreement did not provide a salary to the doctor; rather, it referred to a loan from CMC to Dr. Kim to finance his practice. The agreement specifically provided that “Physician shall employ his/her own means and methods and exercise his/ her own independent medical judgment in his/her practice of medicine” and that “Physician is and shall be an independent contractor and not a servant, agent, or employee of Hospital.” Additionally, the agreement expressly stated that Dr. Kim was not under the control or direction of CMC.

Likewise, Mantooth was unable to establish that Dr. Howell was an employee of CMC. The Estate conceded in its appellate brief that Dr. Howell was Mantooth’s “personal physician.” Further, the record shows that Mantooth went to Dr. Howell’s private office to consult with him. Finally, Mantooth admitted in her deposition that she had no evidence that Dr. Kim or Dr. Howell was an employee of CMC.

We also conclude that there was no evidence to hold CMC vicariously liable for the doctors’ conduct based on an apparent agency theory. “Under the doctrine of apparent agency, a hospital may be liable for the actions of a doctor who is an independent contractor when (1) the hospital holds out the doctor as its agent, and (2) the patient’s justifiable reliance on that holding out leads to injury.” North Ga. Med. Center v. Stokes, 238 Ga. App. 60 (517 SE2d 93) (1999). There is no evidence of either element of apparent agency in the case sub judice. In fact, the consent form signed by Mantooth on August 28, 1998, explicitly stated that she understood that all physicians furnishing services to her at CMC were “independent contractors and [were] not employees or agents of the hospital.” Thus, the evidence showed that CMC did not hold out the doctors as its agents. Accordingly, the trial court properly found that CMC could not be held vicariously liable for the conduct of Dr. Kim and Dr. Howell and did not err in granting partial summary judgment.

Decided February 6, 2002

Bird & Associates, Wendell R. Bird, Richard L. Brittain, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Alan M. Maxwell, Howard J. Russell, Nelson, Mullins, Riley & Scarborough, Scott P. Hilsen, Jeffrey C. Baxter, Lance P. McMillian, Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert L. Berry, Jr., Stephen B. Moseley, for appellees.

Judgment affirmed.

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

       The Estate contends that one paragraph of the affidavit contains inadmissible hearsay. It does not appear from the record that the trial court ruled on Mantooth’s motion to strike paragraph 6 of the affidavit. However, even in the absence of that paragraph, Jouben’s affidavit is sufficient to meet the first condition for opening default.


author: Andrews, Presiding Judge.

text:
    A01A2442.
    HALL v. BAILEY.
    (560 SE2d 76)
   Andrews, Presiding Judge.

The trial court apportioned settlement proceeds from the wrongful death of Morocco Hall between the surviving divorced parents of the deceased pursuant to OCGA § 19-7-1 (c) (6). After hearing evidence from both parties, the court awarded ninety-five percent of the proceeds to Morocco’s mother, Angela Bailey, and the remaining five percent to Morocco’s father, Anderson Hall. Mr. Hall appeals claiming that the evidence did not support the trial court’s apportionment, and that OCGA § 19-7-1 (c) (6) should be “overruled” because it grants excessive discretion to the trial court and denies the noncustodial parent an equal right to share in the child’s wrongful death proceeds. We find no error and affirm the judgment of the trial court.

1. Morocco Hall was killed in an automobile accident at the age of 20 while serving in Japan with the United States Navy. He left no surviving spouse or children, so the right to recover damages for his wrongful death was in the surviving parents. OCGA § 19-7-1 (c) (2) (C). This case arose when the surviving mother, Bailey, petitioned the trial court pursuant to OCGA § 19-7-1 (c) (6) to hold a hearing to determine how to apportion the proceeds between her and the surviving father, Anderson Hall. OCGA § 19-7-1 (c) (6) provides as follows:

For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A post-judgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent’s relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent’s relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge’s decision shall not be disturbed absent an abuse of discretion.

Pursuant to this section, the trial court heard evidence from both parties about the nature of their relationship with Morocco. Evidence showed that Bailey and Anderson Hall divorced when Morocco was three years old. It is undisputed that Bailey retained custody of Morocco, provided for his day-to-day care throughout his minority, and maintained a close relationship with him until his death. On the other hand, evidence showed that, although Anderson paid the court-ordered child support for Morocco, he had little contact with his son after the divorce. Morocco did not spend a single night with Anderson after the divorce, and Anderson did not exercise his visitation rights with the child. There was ample evidence contradicting Anderson’s claim that he did not know where Bailey and his son were living, and the trial court found that this claim lacked credibility. There was evidence that Anderson failed to maintain any significant contact with his son, failed to attend almost every important event in his son’s life, and had no meaningful relationship with him. Based on the evidence produced, we find that the trial court did not abuse its discretion by awarding ninety-five percent of the proceeds to Bailey and five percent to Anderson. Richardson v. Barber, 241 Ga. App. 254 (527 SE2d 8) (1999).

2. Since none of Anderson Hall’s contentions regarding the lawfulness of OCGA § 19-7-1 (c) (6) were raised or ruled upon in the trial court, they present nothing for appellate review.

Judgment affirmed.

Eldridge and Miller, JJ., concur.

Decided February 6, 2002.

Sampson Oliver, Jr., for appellant.

Albert R. Sacks, for appellee.


author: Eldridge, Judge.

text:
    A02A0756.
    FREEMAN v. THE STATE.
    (560 SE2d 77)
   Eldridge, Judge.

A Fulton County jury found Harold Freeman guilty of armed robbery, possession of a firearm during the commission of a crime, and obstruction of an officer. He appeals, claiming that the victim’s on-the-scene identification of him was impermissibly suggestive and that he received ineffective assistance of counsel at trial. Upon review of the errors as enumerated, we affirm Freeman’s conviction.

Viewed to support the verdict, the evidence shows that Freeman suggested to a co-defendant, Tawana Franklin, that they “go hit a lick,” i.e., perpetrate a robbery. Searching for a likely victim, Freeman chose a Vietnamese gentleman, employed at the Richmond Oaks apartment complex, who was eating fried chicken outside the storage area of the complex, close to the street. Freeman and Franklin approached the victim; Freeman twice asked him for a cigarette. When the victim refused, Freeman put a gun to his back and stated, “Give it up.” Freeman then handed the gun to Franklin, who held it on the victim while Freeman removed the victim’s wallet as well as his black cellular telephone, stating “you ain’t fixing to call no [MF] police.” The couple then walked from the scene.

The victim ran to his employer’s office, shouting that he had been robbed. His employer immediately called 911. The police arrived within five minutes. The victim, with the aid of his employer and another Vietnamese employee who spoke excellent English, was able to give an explanation of what had happened and what was taken. The victim gave the officers a description of the perpetrators: “One was a black male and one was a black female. He gave a clothing description, height, weight. The female, I remember a tank top. She was wearing a white tank top with a blue stripe across the body of it.”

The investigating officers left the scene, and

[w]e went out and canvassed the area from the point where the crime occurred, about three blocks down, maybe more, in the area. ... As we approached Jonesboro and Lethea Street, in front of the post office, we observed a black male and black female at the intersection, the female fitting the same description, the white tank top and striped shirt.

The male was carrying a black cellular telephone in his hand. “Based on the testimony, well, the testimony the victim gave on the descriptions of the subjects, and the phone was one of the items taken. We stopped to further investigate due to that fact.”

Freeman’s co-defendant, Franklin, testified against him at trial. She testified that, after Freeman and she had robbed the victim at gunpoint and had walked away, the police “rolled up, and then they jumped out, and he [Freeman] started running.” The officers gave chase; one officer testified at trial that

while he was running, Mr. Freeman pulled from his waistband what appeared to be either a polished or chrome revolver which matched the one that was used in the armed robbery, and as he was running he kept swinging back to me, and I almost shot him, so. . . . While chasing, we called for other units to cut off his exit of escape. He was detained approximately a quarter of a mile away by other marked units along with myself. . . . [D]uring the chase, Mr. Freeman threw the weapon to the ground, and I recovered that while chasing him, also the cell phone that he had placed in his right pants pocket.

Co-defendant Franklin was also detained, and the contents of the victim’s wallet — sans money — were recovered at her feet, including the victim’s immigration card.

Within an hour of the initial incident, Freeman and Franklin were placed in separate patrol cars and taken back to the robbery scene. The victim unhesitatingly and separately identified each of them as the perpetrators of the armed robbery against him. He identified as his the cellular telephone recovered from Freeman’s pants pocket. The contents of his wallet were returned to him. And the victim identified the weapon Freeman threw down as consistent with the one used to rob him. Thereafter, Freeman was transported to the police station, where he was given Miranda rights and agreed to give the police a statement. He stated that he owed a drug dealer money and had robbed the victim in order to obtain cash. Held:

1. Freeman asserts that his one-on-one showup in the police car after he was apprehended was impermissibly suggestive and tainted the victim’s identification.

(a) Freeman did not object at trial to testimony concerning this identification and consequently waived complaint about this evidence on appeal. “Where an objection to evidence is raised for the first time in a motion for new trial or in this Court, nothing is presented for review.”

(b) Under the totality of circumstances, we do not find the showup to be so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. The victim was able to observe Freeman when Freeman twice asked him for a cigarette. He was also able to observe Freeman while Freeman was going through his clothing. Also, Freeman spoke to the victim about frustrating the victim’s ability to telephone the police, during which time the victim was able to observe him. The complained-of showup occurred promptly after the incident. In addition, Freeman was placed in a separate patrol car from Franklin so that the association between the two would be attenuated and would not taint the identification process; notwithstanding, the victim immediately identified Freeman as the male perpetrator. Moreover, Freeman admitted that he robbed the victim and was found in possession of the cellular telephone he removed from the victim. Accordingly, there was no error in the admission of the victim’s identification testimony.

2. Freeman claims that he received ineffective assistance of counsel because his trial attorney failed to object to testimony from State’s witnesses allegedly “bolstering” the victim. We find no error.

To establish ineffective assistance of counsel within the meaning of Strickland v. Washington, an appellant must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim, and a trial court’s finding that the defendant was afforded effective assistance of counsel must be upheld unless it is clearly erroneous.

From our review, the complained-of “bolstering” testimony did not warrant objection by Freeman’s trial attorney. The testimony was from witnesses on the scene as to the victim’s reactions and identification. As such, this evidence “bolstered” the victim only in that it corroborated the victim’s version of events and was consistent with the victim’s testimony. Contrary to Freeman’s allegation, there was no improper testimony from any State’s witnesses as to the victim’s credibility, i.e., opinion testimony as to whether the victim was telling the truth. Thus, Freeman’s reliance on our decision in Roberson v. State is totally misplaced. We do not find error in the trial court’s conclusion that Freeman received effective assistance of trial counsel.

Decided February 6, 2002

Adeline A. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, R J., and Ellington, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Williams v. State, 225 Ga. App. 319, 322 (5) (483 SE2d 874) (1997).

        Clark v. State, 236 Ga. App. 153, 155 (2) (510 SE2d 907) (1999).

        Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Mercer v. State, 268 Ga. 856, 857 (3) (493 SE2d 921) (1998); Dodson v. State, 237 Ga. 607, 608 (2) (229 SE2d 364) (1976). See also Cooper v. State, 260 Ga. 549 (2) (397 SE2d 705) (1990).

        Mercer v. State, supra at 857.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Manning v. State, 250 Ga. App. 187, 191-192 (4) (550 SE2d 762) (2001).

       214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994).


author: Miller, Judge.

text:
    A01A1827.
    BURNS v. BURNS.
    (560 SE2d 47)
   Miller, Judge.

The sole issue in this case is whether the trial court erred in enforcing a consent decree pursuant to a divorce between the parties in which they agreed that no child visitations would occur during any time the party being visited cohabited with or had overnight stays with any adult to whom that party was not legally married or related within the second degree. As we discern no error in enforcing this legally constituted consent order, we affirm.

Darian and Susan Burns were divorced on December 4, 1995, and Darian retained full custody of the couple’s three minor children. Three years later Susan filed a motion for contempt, alleging that Darian refused to allow her visitation with the children. As a result the court issued a consent order modifying visitation rights. The modification required and the parties agreed that “[t]here shall be no visitation nor residence by the children with either party during any time where such party cohabits with or has overnight stays with any adult to which such party is not legally married or to whom party is not related within the second degree.”

On July 1, 2000, the State of Vermont enacted a civil union law, and on July 3, 2000, Susan Burns and a female companion (not related to Susan) traveled to Vermont where they received a “LICENSE AND CERTIFICATE OF CIVIL UNION.” Two months later Darian filed a motion for contempt, alleging that Susan violated the trial court’s order by exercising visitation with the children “while cohabitating with her female lover.” Susan opposed the motion for contempt, arguing that she was not in violation of the visitation requirements in that she had complied with the legally married requirement by virtue of her civil union with an adult female. No party argued that the consent decree was unenforceable.

The trial court found that the provisions of its order applied equally to both parties and to both sexes and that a “civil union” is not a marriage. The court further found that the provisions of the order were valid and enforceable.

On appeal Susan contends that she and her female companion were married in the State of Vermont and pursuant to “the full faith and credit doctrine they are married in Georgia as well.” She argues further that she has a fundamental right to privacy which includes the right to define her own family and that the State of Georgia cannot place limitations on this right.

Susan’s position, however, has a flawed premise: she and her female companion were not married in Vermont but instead entered into a “civil union” under 15 Vt. Stat. Ann. § 1201 et seq. The definitional section of that statute expressly distinguishes between “marriage,” which is defined as “the legally recognized union of one man and one woman,” and “civil union,” which is defined as a relationship established between two eligible persons pursuant to that chapter. The next section reemphasizes this distinction, requiring that eligible persons must “[b]e of the same sex and therefore excluded from the marriage laws of this state.” Indeed, the legislative findings accompanying the enactment of the Vermont civil union statute noted that “a system of civil unions does not bestow the status of civil marriage. . . .”

Moreover, even if Vermont had purported to legalize same-sex marriages, such would not be recognized in Georgia, the place where the consent decree was ordered and agreed to by both parties (both of whom are Georgia residents), and more importantly the place where the present action is brought. OCGA § 19-3-3.1 (a) clearly states that it is the public policy of Georgia “to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.” Additionally, under OCGA § 19-3-3.1 (b)

[n]o marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.

Moreover, Georgia is not required to give full faith and credit to same-sex marriages of other states.

What constitutes a marriage in the State of Georgia is a legislative function, not a judicial one, and as judges we are duty bound to follow the clear language of the statute. The Georgia Legislature has chosen not to recognize marriage between persons of the same sex, and any constitutional challenge to Georgia’s marriage statute should be addressed to the Supreme Court of Georgia.

It is important to note that Susan’s argument that her right to privacy has been infringed upon ignores her role in creating the consent decree. Although she is correct that there is a right to privacy of intimacy between persons legally able to consent, she waived that right (to the extent that right is interfered with here) when she agreed to the consent decree. That this right may be waived is clear. Indeed, if Susan wanted to ensure that her civil union would be recognized in the same manner as a marriage, she should have included language to that effect in the consent decree itself.

Simply put, the consent order signed by the presiding judge provides that visitation will not be allowed during the time that Darian or Susan cohabitates with an adult to whom he or she is not legally married, and as Susan and her companion are not legally married in the State of Vermont and clearly not legally married under Georgia law, any such activity by Susan is in violation of the court’s order. Accordingly, the court did not err in its conclusion that the visitation order is valid and that such violation constitutes contempt.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Decided January 23, 2002

Reconsideration denied February 7, 2002

Adrian F. Lanser III, for appellant.

Douglas D. Slade, Sr., for appellee.

McGarity & Lloyd, Terry L. Lloyd, Gerald R. Weber, Jr., Robert L. Tsai, Stephen R. Scarborough, Robert D. McCullers, Garnett Harrison, amici curiae.

       15 Vt. Stat. Ann. § 1201 et seq.

       See OCGA § 13-8-2.

       15 Vt. Stat. Ann. § 1201 (4).

       15 Vt. Stat. Ann. § 1201 (2).

       15 Vt. Stat. Ann. § 1202 (2).

       2000 Vt. Act 91, § 1 (10).

       See 28 USCS § 1738C.

        Powell v. State, 270 Ga. 327, 336 (3) (510 SE2d 18) (1998).

       Id. at 331 (3); see Pavesich v. New England Life Ins. Co., 122 Ga. 190, 199 (50 SE 68) (1905).


text:
    A01A1970.
    GOULD v. PATTERSON et al.
    (560 SE2d 37)
   Andrews, Presiding Judge.

While serving the probated portion of the sentence imposed on him for conviction of child molestation and solicitation of prostitution, Carl Gould filed suit pursuant to 42 USC § 1983 seeking damages against his probation officer (David Patterson), the Georgia Department of Corrections, the Medlin Treatment Center (where he received sex offender treatment pursuant to the terms of his probation), and Randi Stephens (an employee of Medlin). He alleged that, when the sentencing trial court modified the terms of his probation to require sex offender treatment at his expense after he began serving his sentence, this constituted an illegal increase in his sentence and violated his constitutional rights. In appealing from the trial court’s dismissal of the suit, Gould enumerates as error that: (1) the Code section (OCGA § 42-8-34 (g)) pursuant to which the trial court modified his probation is unconstitutional; (2) the modification of his probation violated due process and the double jeopardy clause of the Fifth Amendment; and (3) the sex offender treatment he was required to attend imposed conditions on him which violated his Fifth Amendment privilege against self-incrimination. For the reasons which follow, we find no merit to these claims and affirm the trial court.

1. The constitutionality of OCGA § 42-8-34 (g) was not raised or ruled on in the trial court, so Gould failed to preserve this claim for appellate review.

Gould was convicted of child molestation and solicitation of prostitution and sentenced to serve a term of incarceration followed by a term of probation. After he completed his term of incarceration, the sentencing trial court exercised its continuing jurisdiction during the term of probation and modified the conditions of probation pursuant to OCGA § 42-8-34 (g) by requiring Gould to undergo sex offender treatment at his expense. Gould filed suit pursuant to 42 USC § 1983 challenging the modification and appealed dismissal of the suit to the Supreme Court of Georgia. The Supreme Court transferred the appeal to this Court by an order which held that the constitutionality of OCGA § 42-8-34 (g) was neither raised by Gould nor ruled on by the trial court. It follows from this holding that the constitutionality issue was not preserved for review in the Supreme Court or this Court. Archie v. Scott, 190 Ga. App. 145, 146 (378 SE2d 182) (1989).

2. Gould claims the sentencing trial court’s modification of his probation under OCGA § 42-8-34 (g) violated due process and the Fifth Amendment double jeopardy clause because it constituted an increase in his sentence and was done without a hearing or a second trial.

No notice, hearing, or second trial was required for the sentencing trial court to modify the conditions of Gould’s probation by requiring him to undergo sex offender treatment at his expense. Although an increase in Gould’s sentence after he began serving it would violate the prohibition against double jeopardy in the Georgia and United States Constitutions, the trial court’s modification of Gould’s probation did not increase his sentence. Edwards v. State, 216 Ga. App. 740-741 (456 SE2d 213) (1995). The purpose of the modification requiring sex offender treatment was clearly rehabilitátive, so it cannot be construed to constitute the imposition of additional punishment or an impermissible increase in the sentence. Id.; Staley v. State, 233 Ga. App. 597, 598-601 (505 SE2d 491) (1998); England v. Newton, 238 Ga. 534 (233 SE2d 787) (1977); compare Harp v. State, 228 Ga. App. 473, 474-475 (491 SE2d 923) (1997); Harris v. State, 261 Ga. 859, 860-861 (413 SE2d 439) (1992).

Moreover, due process did not require that Gould be afforded prior notice, a hearing, or counsel before the trial court modified the conditions of his probation. Because modification of probation does not result in the same loss of liberty as a probation revocation (where a hearing is required), there was no infringement of Gould’s due process rights. See United States v. Cornwell, 625 F2d 686 (5th Cir. 1980), cert. denied, Cornwell v. United States, 449 U. S. 1066 (101 SC 794, 66 LE2d 610) (1980).

3. Gould also contends that his Fifth Amendment privilege against self-incrimination was violated because he was told by Stephens, a therapist in the sex offender treatment program, that he was required to admit committing the crimes for which he was convicted or he would be terminated from the program. According to Gould, he testified at his criminal trial that he did not commit the crimes for which he was convicted, so he refused to state as part of the sex offender treatment that he committed the crimes. Gould claims that, if he stated he committed the crimes, he would incriminate himself on possible future charges that he falsely asserted his innocence at trial under oath.

Since according to Gould he has said nothing which could be used to incriminate him on any future charge, we find no violation of his Fifth Amendment right against self-incrimination. In any event, if there is a rational basis for Gould to believe that answering a question posed to him could incriminate him in future criminal proceedings, and he invokes his Fifth Amendment privilege, he may refuse to answer without penalty until he is “assured that neither [the answer] nor its fruits may be used against him in a subsequent criminal proceeding.” (Punctuation omitted.) Minnesota v. Murphy, 465 U. S. 420, 429 (II) (B) (104 SC 1136, 79 LE2d 409) (1984).

4. In the present case, the trial court dismissed Gould’s 42 USC § 1983 suit after consideration of the merits. We conclude, however, that most of the suit was subject to being dismissed because the claims were not ripe for consideration under Heck v. Humphrey, 512 U. S. 477 (114 SC 2364, 129 LE2d 383) (1994). In Heck, the Supreme Court held that,

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by. . . issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

(Citation and emphasis omitted.) Id. at 486-487 (II). Thus, Heck requires that the trial court “consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487 (II).

In the present 42 USC § 1983 suit, most of Gould’s claims, if successful, would necessarily imply the invalidity of the probationary portion of the sentence imposed by the trial court. Heck has been applied to § 1983 suits that call into question the fact or duration of probation. Jackson v. Vannoy, 49 F3d 175 (5th Cir. 1995), cert. denied, 516 U. S. 851 (116 SC 148, 133 LE2d 93) (1995). Since Gould did not show that the terms of his probation have been invalidated, nor has he exercised his right to petition the sentencing trial court to modify and invalidate the allegedly illegal terms under OCGA § 42-8-34 (Dean v. Whalen, 234 Ga. 182 (215 SE2d 7) (1975)), these claims were subject to being dismissed without prejudice under Heck.

Decided January 16, 2002

Reconsideration denied February 7, 2002.

James A. Satcher, Jr., for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Eddie Snelling, Senior Assistant Attorneys General, for appellees.

Judgment affirmed.

Eldridge and Miller, JJ., concur.


author: Smith, Presiding Judge.

text:
    A01A2234.
    TEMPLE v. THE STATE.
    (561 SE2d 132)
   Smith, Presiding Judge.

Texaco Temple was convicted by a jury on three counts of aggravated assault and one count of possession of a firearm by a convicted felon. His motion for new trial was denied. Temple appeals, contending that the evidence was insufficient to support the verdicts, that he did not receive effective assistance of counsel, and that the trial court erroneously refused to grant his motions for mistrial when his character was placed in issue by the State. We find no reversible error, and we affirm.

1. We first address Temple’s claim concerning the sufficiency of the evidence. Construed to uphold the jury’s verdict, evidence was presented that while the three victims were traveling in a car at approximately 10:30 p.m., the driver looked into his rearview mirror and saw a vehicle swerving into another lane. As he slowed to approach a stop sign, his car was rear-ended. The impact caused the car to spin and come to a rest partially in a ditch. The driver testified that following the impact, he heard “some shots fired” and found himself “looking down the barrel of a pistol. And the guy that was pointing the pistol said he was going to kill everybody in the car.” The driver unequivocally identified Temple, with whom he had been acquainted before the incident, as the man who pointed the gun and threatened the three victims. He testified that Temple shot at two tires, “but the tires didn’t go down.” Another man with Temple attempted to knock the gun away from the victims, and the gun fired again.

Meanwhile, the victim in the backseat on the passenger side, who testified that the gun was pointed inside the driver’s window and that the man holding the gun stated that he was “going to kill all of y’all,” decided to exit the car. He “wasn’t going to just sit in that car and get shot just like that.” He jumped out of the car and saw that “the gun was on me.” According to this victim, as the man with the gun was coming around the car toward him, the front seat passenger, a female, exited the car and said, “ You mad with me.’ ” The same male victim was relieved at that time to see the blue lights of a police car approaching. He testified that the other man accompanying the individual with the gun stayed on the scene for a short time during the ensuing investigation and helped pull the car from the ditch. The driver testified that when the police car arrived, Temple “threw the gun in the bushes” and ran into the woods.

Deputy John Glandon arrived at the scene as Temple fled. Glandon testified that while on routine patrol, he observed two cars in ditches on opposite sides of the road. Just after he radioed dispatch to report the accident, he heard two gunshots and saw a figure run into the woods. Glandon called for assistance and then approached and interviewed the four people he observed standing near one of the wrecked vehicles. He assumed that all four were victims but later learned that one of the four individuals, Anthony James, had been in the car with Temple. James gave him a name and address, which he later learned were false, but James disappeared before the investigation was complete.

Glandon learned from the victims that they had been rear-ended and that the person who “had ran [sic] into the woods had pulled a gun and shot at them.” He searched the other car and found a rental agreement bearing Temple’s name. A short time later, while Glandon was inside his patrol car, he saw “Temple standing just behind the driver’s door.” Glandon exited the car and “laid hands” on Temple because he “was afraid he still had the weapon.” As soon as Glandon did so, Temple stated “that he knew he had [done] wrong, but he had sold him bad drugs.” Temple did not indicate to Glandon the name of the person to whom he was referring. No weapon was found on Temple’s person, and during a subsequent custodial interview, he denied knowing anything about a shooting. He said that the man with him, whom he could not identify, “probably did the shooting.” A pistol, two spent rounds, and at least one live round were recovered approximately twenty to thirty feet from the victims’ car. Glandon acknowledged on cross-examination that James, the man accompanying Temple, could have been the person driving the car but did not find it likely that James was the person who shot the gun. He testified that the victims did not “act as though [James] had just shot at them. They were standing around very calm. I would have thought they’d had a better reaction if he was the one that had shot at them.”

We do not agree with Temple that the evidence was not sufficient to support the three aggravated assault verdicts. In addition to Temple’s incriminating statement to Glandon, the driver unequivocally identified Temple as the man who pointed a gun at the victims and threatened to shoot all of them. Temple contends that because the female victim did not testify, the State failed to present sufficient circumstantial evidence to prove that she was in fear of receiving an imminent violent injury. Indeed, when the evidence in a criminal case is entirely circumstantial, as it was with regard to the count charging Temple with aggravated assault against the female victim, a conviction can be sustained only if the facts proved by the State are consistent with the hypothesis of guilt and exclude every other reasonable hypothesis except the guilt of the accused. Barela v. State, 271 Ga. 169, 171 (517 SE2d 321) (1999). But

it is not necessary for circumstantial evidence to exclude every conceivable hypothesis of a defendant’s innocence in order to authorize a conviction; only reasonable hypotheses must be excluded. In cases based upon circumstantial evidence, questions concerning the exclusion of all reasonable hypotheses other than guilt are generally left to the jury, and when the evidence is sufficient to have enabled reasonable jurors to exclude all reasonable hypotheses except an accused’s guilt, that conclusion will not be disturbed on appeal unless it is unsupportable as a matter of law.

(Footnote omitted; emphasis in original.) Id. at 171-172. See also Smith v. State, 234 Ga. App. 586, 594 (7) (b) (506 SE2d 406) (1998).

Here, two of the victims did testify. One stated that after he heard the gunfire and saw a man waving and shooting the gun, he was “in a panic” and thought that they all were going to be shot and that the man repeatedly said he “was going to kill up” everyone. And the driver similarly testified concerning Temple’s threats and stated that he believed he would be the first to die, because Temple was on his side of the car when the first shots were fired. Although the female victim did not testify, and although testimony was presented that she exited the car and spoke to Temple, given the testimony of the other two victims concerning Temple’s actions and their own fears, we conclude that a rational trier of fact could have concluded that the evidence excluded every reasonable hypothesis other than that the female victim was frightened for her safety as well. We therefore will not disturb Temple’s conviction.

Finally, we note that a certified copy of Temple’s felony conviction for possession of cocaine was tendered and admitted into evidence without objection. Consequently, given the direct testimony by the driver, the evidence was sufficient to support his conviction on the charge of possession of a firearm by a convicted felon.

2. Temple contends that he was denied effective assistance of counsel because his trial attorney failed to request a bifurcated trial on the charge of possession of a firearm by a convicted felon and failed to introduce evidence that Temple passed a gunshot residue test.

(a) With respect to trial counsel’s failure to request a bifurcated trial, Temple correctly points out that Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), states that a trial judge “shall bifurcate” the proceedings if the charge of possession of a firearm by a convicted felon is unrelated to any other count of the indictment. Id. at 431-432 (3) (a). But bifurcation is required only “on motion” by the defendant. Id. See also Belt v. State, 225 Ga. App. 813, 814 (2) (a) (485 SE2d 39) (1997). Here, trial counsel did not interpose an objection to the prosecutor’s statement to the trial court that bifurcation was not required, and Temple contends this constituted ineffective assistance of counsel.

Temple has not met his burden of showing ineffectiveness. To do so, a defendant must show that trial counsel’s performance was deficient and that this deficiency prejudiced his or her defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). See also Baker v. State, 251 Ga. App. 377, 378 (2) (554 SE2d 324) (2001). And the defendant attempting to show ineffectiveness “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Footnote omitted.) Id. at 379 (2). Here, the hearing on Temple’s motion for new trial was not transcribed, and we cannot determine whether his trial counsel testified concerning his trial strategy. Without such testimony, in the absence of other evidence that trial counsel’s performance was deficient, “the trial court is to presume that trial counsel’s actions are part of trial strategy.” (Footnote omitted.) Id. In the absence of trial counsel’s testimony, “it is extremely difficult to overcome this presumption.” (Citation omitted.) Rivers v. State, 271 Ga. 115, 117 (2) (516 SE2d 525) (1999).

Apparently “[r]ecognizing that trial strategy and tactics do not equate with ineffective assistance,” (Footnote omitted.) Baker, supra at 378 (2), Temple argues that “there is no conceivable reason trial counsel would not want to bifurcate the trial. It is not trial tactics or strategy to allow the jury to hear about a defendant’s prior convictions.” We do not agree. Some evidence was presented showing the prior cocaine conviction to be related to the charged crimes; Temple told Glandon that he knew he had done wrong but that someone, presumably one of the occupants of the other car, had sold him “bad drugs.” Trial counsel could have determined that the conviction may have served to corroborate evidence that the assaults here resulted from a sour drug deal and that a motion to bifurcate would have been denied. But we do not have the benefit of trial counsel’s testimony concerning his trial strategy. Therefore, we simply must presume that any decision concerning bifurcation was one of trial tactics and did not constitute deficient performance. Rivers, supra; Baker, supra.

Moreover, we note that one victim unequivocally identified Temple as the assailant who fled into the woods after the gunshots. This evidence was corroborated by Glandon, who testified concerning Temple’s incriminating statement made shortly after the attacks, and by one of the other victims, who did not identify Temple but whose testimony also showed that the victims were threatened with death by the attacker and that the attacker ran into the woods. Under these circumstances, we conclude that the prior conviction did not place Temple’s character into issue to the extent that the evidence of the prior conviction affected the verdict on the aggravated assault charges. See Baker v. State, 214 Ga. App. 640 (1) (448 SE2d 745) (1994).

(b) We find no merit in Temple’s argument concerning trial counsel’s failure to introduce evidence that he passed a gunshot residue test. He has pointed to no evidence of record showing this fact to be true, but instead merely states in his appellate brief that “there was evidence that a gunshot residue analysis was performed on Appellant’s hands shortly after the alleged shooting” and that this test did not show the presence of gunshot residue. It is axiomatic that factual assertions in appellate briefs not supported by record evidence will not be considered on appeal. See, e.g., Vanegas v. State, 249 Ga. App. 76, 78-79 (2) (547 SE2d 718) (2001). And again, given Temple’s failure to introduce testimony of his trial counsel, we assume that any decision not to introduce such evidence, if it existed, was a matter of trial strategy and tactics. See Rivers, supra; Baker, supra, 251 Ga. App. at 378 (2).

3. Temple argues that the trial court erroneously refused to grant his repeated motions for mistrial made after the State placed his character in issue. In general, two instances of trial testimony form the basis of this contention. The first involves Glandon’s testimony that when he placed his hands on Temple, Temple spontaneously stated “that he knew he had [done] wrong, but he had sold him bad drugs.” He argues that testimony concerning his purchase of drugs had no probative value and erroneously placed his character in issue. We do not agree. This spontaneous statement was made close in time to the shooting, was relevant to Temple’s possible motive, and was evidence of “the circumstances surrounding the commission of the crime or crimes charged.” (Citations and punctuation omitted.) Houston v. State, 187 Ga. App. 335, 340 (5) (370 SE2d 178) (1988). It was consequently admissible as part of the res gestae, OCGA § 24-3-3, although it may have incidentally placed Temple’s character in evidence. Id. See also Larkin v. State, 230 Ga. App. 129, 130-131 (2) (495 SE2d 605) (1998).

Temple also complains about Glandon’s testimony given after the prosecutor asked Glandon how he felt when he first observed Temple. He replied that this “was probably the most scared I’ve ever been” and that he recognized Temple “from previous encounters.” He also testified that he had previously worked as a shift sergeant at the jail. Although this testimony possibly may have placed Temple’s character in issue, we find no reversible error in the trial court’s refusal to grant Temple’s motion for mistrial. First, as pointed out by the trial court, Glandon did not specifically testify that he recognized Temple as a result of his work at the jail. But even if this inference was implied by the testimony, evidence of Temple’s previous conviction was properly admitted, as discussed above. Any testimony that he may have been in jail previously was therefore cumulative and harmless. See generally Davidson v. State, 231 Ga. App. 605, 611-612 (5) (c) (499 SE2d 697) (1998).

Decided February 7, 2002.

Todd H. Martin, for appellant.

J. Thomas Durden, Jr., District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.

Finally, we note Temple’s argument that certain “gratuitous” or “personal” comments by the prosecutor warranted mistrial. Following these comments, the trial court rebuked the prosecutor and denied Temple’s motions for mistrial. We find no reversible error. Temple has not shown how the prosecutor’s brief comments impermissibly placed his character in issue or otherwise contributed to the verdict.

Judgment affirmed.

Barnes and Phipps, JJ, concur.