author: Barnes, Judge.

text:
    A02A0215.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. VISITING NURSE HEALTH SYSTEM OF METROPOLITAN ATLANTA, INC.
    (568 SE2d 798)
   Barnes, Judge.

The Fulton County Board of Tax Assessors (“Board”) appeals the judgment entered on a jury verdict which found the Visiting Nurse Health System of Metropolitan Atlanta, Inc. (‘VNHS”) exempt from ad valorem taxes. For the reasons that follow, we affirm.

In the first appearance of this case before this court, we reversed the grant of summary judgment to VNHS, concluding that the trial court erred in holding as a matter of law that VNHS qualified as a purely public charitable institution exempt from ad valorem taxes. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System &c., 243 Ga. App. 64, 65 (2) (532 SE2d 416) (2000). We also held that VNHS did not qualify for tax exemption as a nonprofit hospital. Id. at 67 (3). Following the remittitur, the Board moved for summary judgment, which the trial court granted as to whether VNHS was a nonprofit hospital and denied as to whether VNHS was a public charity. The case was tried by a jury, which found VNHS exempt from ad valorem taxation in Fulton County. The trial court entered judgment on the verdict and subsequently denied the Board’s motion for a judgment notwithstanding the verdict (“j.n.o.v.”). The Board appeals.

1. The Board argues that the trial court erred in failing to grant its motion for directed verdict, in failing to rule on its motion for directed verdict when it was made, and in failing to grant its motion for j.n.o.v. The Board presents no argument concerning the second ground, which we thus consider abandoned pursuant to Court of Appeals Rule 27 (c) (2).

2. The Board addresses both of its remaining enumerations together, arguing essentially that “insufficient” evidence supported the jury’s verdict. The standard for granting motions for directed verdict and for j.n.o.v. is the same. Crump v. McDonald, 239 Ga. App. 647-648 (1) (520 SE2d 283) (1999). They may be granted only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict. OCGA § 9-11-50 (a). On appeal, the appellate court considers whether any evidence supports the jury’s findings. Ogletree v. Navistar Intl. Transport Corp., 271 Ga. 644 (522 SE2d 467) (1999). “Where there is any evidence upon which the verdict can be based, the jury is free to disbelieve whatever facts are inconsistent with their conclusion and the court cannot substitute its conclusion for that of the jury and enter a judgment notwithstanding the verdict.” (Citations and punctuation omitted.) Id. at 647.

The issue presented to this jury was whether VNHS qualified for a tax exemption as an institution of “purely public charity” under OCGA § 48-5-41 (a) (4). In determining this issue, the jury considered three factors: (1) whether VNHS is an institution “devoted entirely to charitable pursuits”; (2) whether VNHS’s charitable pursuits are “for the benefit of the public”; and (3) whether the use of the property is “exclusively devoted to those charitable pursuits.” York Rite Bodies of Freemasonry v. Bd. of Equalization, 261 Ga. 558 (2) (408 SE2d 699) (1991).

(a) The Board first argues that VNHS “presented no new evidence” at trial, and that “[a]ll the evidence at trial was already part of the record at the time Appellant previously appealed the grant of summary judgment.” Therefore, the Board contends, given VNHS’s “failure to provide the trial Court with any new evidence during the trial of this case, Appellee was not entitled to a verdict in its favor.” In our previous opinion, we reversed a grant of summary judgment, not a verdict, and held that “[g]iven the dearth of evidence that VNHS qualifies as a purely public charity, issues of fact remain as to whether it is exempt from ad valorem taxes.” Fulton County Bd. of Tax Assessors v. Visiting Nurse &c., supra, 243 Ga. App. at 67. The Board’s argument that VNHS presented no new evidence is puzzling, as VNHS presented to the jury testimony from five witnesses, evidence that was not before this court in the previous appeal. The trial court did not err in denying the Board’s motion for directed verdict or j.n.o.v. based on this court’s previous reversal of a summary judgment grant.

(b) The Board next argues that insufficient evidence established that VNHS is an institution of purely public charity, because the majority of its patients pay for services through Medicare, Medicaid, or insurance. As we noted previously, “where the primary purpose of the institution is to service those patients who do pay, then it cannot be said to be purely charitable.” Fulton County Bd. of Tax Assessors v. Visting Nurse &c., supra, 243 Ga. App. at 66. The issue is not, however, whether “insufficient” evidence supported the jury’s conclusion that VNHS is an institution of purely public charity, but whether any evidence does so. Ogletree v. Navistar Intl. Transport, supra, 271 Ga. at 647.

A review of the record establishes that VNHS presented some evidence that its primary purpose is charitable. Its president and CEO testified that the institution was founded in 1948 to provide home health service to all patients, regardless of their ability to pay. When VNHS accepts a patient for care, that patient gets the care he needs regardless of whether he has a payor source or whether that source will cover all services needed. The institution uses funds from paying patients to further indigent care, along with donations and grants. While the majority of patients have some source of funds, their needs often exceed those sources and they become what VNHS calls “uncompensated” patients. For example, blind diabetics can live alone, but cannot see to fill their syringes with insulin, and insulin’s short shelf life means that syringes cannot be filled very far ahead of time. Medicaid will pay for 75 home visits per year, but that patient might require 250 visits per year. Therefore, VNHS visits 76 through 250 are not compensated. In another example, Medicaid pays only $100 of the $200 cost of a dose of intravenous antibiotics, and only $4 for the supplies required to mix the solution and the courier fees to transport it.

The president further testified that the institution served 962 children in 2000 at a total cost of $1.2 million. Medicaid paid $500,000 for those services, and VNHS underwrote the additional $700,000 costs. Some years, VNHS gives away more in care than it has in revenue; the few times it has earned excess revenue, it has seen more patients, replaced equipment, or begun new programs. For example, the institution created a children’s hospice with $50,000 excess revenue, which is now sustained through contributions and is the largest children’s hospice in the country. The only requirements to be eligible for services are that the patient (1) has a need for services; (2) is under a doctor’s orders, because nurses in Georgia cannot practice without an order; and (3) can be located in an environment that is safe for the health care provider. Ability to pay is not a criterion for eligibility.

As to whether VNHS is devoted entirely to charitable purposes, the fact that some of its patients have payor sources is not dispositive. Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, 217 Ga. App. 361, 364 (457 SE2d 267) (1995). The evidence showed that the money VNHS collected from some of its patients was used to offset expenses and pay for additional patient care. “The evidence also showed that [VNHS] provided its services to all in need of assistance, not just to [those who could pay].” Id.

The facts in Annandale at Suwanne v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 (248 SE2d 640) (1978), are distinguishable from those in this case. The court in Annandale noted that “the families of residents or government agencies on their behalf pay monthly for each [of the 29] resident [s],” and thus the facility was “not sufficiently ‘public’ in nature.” Id. at 242. The court distinguished other cases affirming an exemption, because in those cases a percentage of the clients paid nothing or a minimal amount for services, as is the case with a percentage of VNHS’s clients. For example, VNHS underwrote more than half the cost of treating 962 children in 2000.

After reviewing the record, we hold that some evidence supports the jury’s conclusion that VNHS’s primary purpose was charitable, and thus the trial court did not err in denying the Board’s motions for directed verdict and j.n.o.v.

Decided July 11, 2002.

Johnson, Freeman & Perkins-Hooker, Ronald J. Freeman, Thomas A. Cox, Jr., Maureen M. McLeod, for appellant.

Kilpatrick Stockton, Stephen E. Hudson, Burleigh L. Singleton, David M. Zacks, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A02A0304.
    WHEELER COUNTY BOARD OF TAX ASSESSORS et al. v. GILDER et al.
    (568 SE2d 786)
   Barnes, Judge.

Wheeler County Commissioner Bill Cartright and the Wheeler County Board of Tax Assessors (“Board”) brought this action against the Wheeler County Board of Commissioners and Roy Gilder, in his various capacities as Wheeler County tax assessor, chairman of Wheeler County Farm Board, and director of the Wheeler County Chamber of Commerce (“Gilder”), seeking a declaration that Gilder’s appointment to the county board of tax assessors violated a Georgia law due to his service on the Wheeler County Board of Agricultural Stabilization and Conservation Committee (“county ASC committee”). The Board now appeals a declaratory judgment that Gilder’s service on the ASC is not a legal bar to his appointment on the board of tax assessors. We agree and affirm.

Before trial, the parties entered into a stipulation of facts, which was adopted by the trial court in its order. On appeal, the application of law to undisputed facts is subject to de novo review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

According to the undisputed facts, in December 2000, the Wheeler County Board of Commissioners appointed Gilder to the Wheeler County Board of Tax Assessors for a term of three years, beginning January 1, 2001, pursuant to OCGA § 48-5-295. He receives $50 a day for his services as a county tax assessor. At the time of this appointment, Gilder was also serving as chairman of the county ASC committee. The county ASC committee is a federal committee created by authority of the Soil Conservation and Domestic Allotment Act and administers programs related to the prevention of soil erosion conducted by the United States Department of Agriculture under the jurisdiction of the Secretary of Agriculture. 16 USC § 590a; 52 FR 48511; 7 CFR Part 7. Gilder receives between $30 and $40 a month in compensation for his service on this committee. Gilder has served on the county ASC committee since 1998, when he was elected to a three-year term that would have expired December 31, 2001. County ASC committee members are elected by farmers in the county.

1. The Board argues that, pursuant to federal law, the county ASC committee is a county office because of the nature of the position’s functions. And as such, the Board contends, Gilder is prohibited by OCGA § 48-5-295 (a) from simultaneously holding the positions of tax assessor and chairman of the county ASC committee.

OCGA § 48-5-292 (a) provides that “[n]o member of a county board of tax assessors shall be eligible to hold any state, county, or municipal office during the time he holds such office. A member of the board may be reappointed to succeed himself as a member of the board.”

We reject the Board’s assertion that OCGA § 48-5-292 (a) prohibits Gilder from simultaneously holding the positions of county tax assessor and chairman of the county ASC committee. The initial rule of statutory construction is to look to the legislative intent and to construe statutes to effectuate that intent. OCGA § 1-3-1 (a). City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970). “All words, except words of art, shall be given their ordinary significance.” City of Roswell v. City of Atlanta, supra, 261 Ga. at 657 (1).

OCGA § 48-5-292 (a) plainly states that no member of the board of tax assessors may hold a state, county, or municipal office. Federal offices clearly are excluded from the exemptions in OCGA § 48-5-292 (a). Our review of the relevant federal laws and regulations shows that the position of county ASC committee member is a federal office. As such, Gilder is not prohibited under this Code section from simultaneously holding the positions of tax assessor and chairman of the county ASC committee. The right to hold office is the rule and ineligibility is the exception. Weems v. Glenn, 199 Ga. 388, 391 (34 SE2d 511) (1945).

2. The Board argues that as a member of the ASC committee, Gilder is also ineligible to hold the position of tax assessor under OCGA § 45-2-1. OCGA § 45-2-1, in pertinent part, holds that:

The following persons are ineligible to hold any civil office; and the existence of any of the following facts shall be a sufficient reason for vacating any office held by such person; but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, namely: . . . (4) Persons holding any office of profit or trust under the government of the United States other than that of postmaster and officers and enlisted men of the reserve components of the armed forces of the United States, or of either of the several states, or of any foreign state; provided, however, that without prejudice to his right to hold public office, any person may accept appointment to, and may receive his expenses and compensation arising from, membership upon any commission, board, panel, or other fact-finding or policy-making agency appointed by the President of the United States or other federal authority, where such appointment is of a temporary nature and the duties are not such as to interfere materially with the person’s duties as a public officer. Acceptance of such an appointment and receipt of the emoluments therefrom shall not bar the right of any person to hold office in this state or to accede to a state office.

Since the office of tax assessor clearly is a “civil office,” see Sheffield v. State School Bldg. Auth., 208 Ga. 575, 584 (68 SE2d 590) (1952), our inquiry must be whether Gilder’s position on the county ASC committee falls within any of the enumerated exemptions of OCGA § 45-2-1 (4). More specifically, since the position is not that of “postmaster and officers and enlisted men of the reserve components of the armed forces of the United States, or of either of the several states, or of any foreign state,” we must consider whether it is a federal position that (1) is appointed by the President or other federal authority; (2) is temporary; and (3) does not materially interfere with the person’s duties as a public officer and is thereby otherwise exempt.

The county ASC committee was established by authority of the Soil Conservation and Domestic Allotment Act, 16 USC § 590h (b), to administer various programs conducted by the Department of Agriculture and shall, “as directed by the Secretary or a designee of the Secretary, carry out the programs and functions of the Secretary.” 7 CFR § 7.2. The county ASC committees are not selected by general election, but in one of two methods. Under the first method, farmers within one of three local administrative areas in a county elect community ASC committee members who in turn elect a member to the county ASC committee. And under the second method, the farmers in the community directly elect a member of the county ASC committee. 7 CFR § 7.9; 52 FR 48511. Neither method requires a general election of the county populace, and if membership of a governing structure is not determined through a popular election in which the residents of the county participate, the nature of the governing structure is appointive. See Ramsbottom Co. v. Bass/Zebulon Roads &c., 273 Ga. 798 (546 SE2d 778) (2001).

Here, although the Secretary of Agriculture has chosen to select members of the county ASC committee through elections by farmers, the ASC members are appointed under the authority of the Secretary to carry out his programs and functions. 7 CFR § 7.2. Thus, the position of county ASC committee member is appointed and meets the first requirement for exemption from the ineligibility provision of OCGA § 45-2-1.

We also find Gilder’s position temporary in nature. The county ASC committee members hold office for a term of three years or until a successor is elected and qualified. 7 CFR § 7.11. The parties stipulated that Gilder’s appointment to the county ASC committee was for a definite term of three years. See Massey v. State, 265 Ga. 632, 634 (3) (458 SE2d 818) (1995) (designation of temporary service must be for specific time period). Further, the language of the Act suggests that the committee is by its nature transitory and temporary. See Johnston v. Chambers, 148 Ga. 768 (98 SE 263) (1919) (membership on federal exemption board did not preclude service as police commissioner because of temporary nature of federal position). Pursuant to the Act, the Secretary of Agriculture is authorized to “from time to time,” “coordinate and direct all activities with relation to soil erosion,” including the establishment of county ASC committees. See 16 USC §§ 590a; 590d; 7 CFR § 7.1. Indeed, it appears to be within the discretion of the Secretary of Agriculture to discontinue the county ASC committees altogether. Cf. Highsmith v. Clark, 245 Ga. 158 (264 SE2d 1) (1980) (part-time federal magistrate position not temporary).

Finally, there is no evidence that Gilder’s service on the county ASC committee will materially interfere with his duties as a tax assessor. The duties of the county ASC committee include “carrying out in the county the agricultural conservation program, the production adjustment and price support programs, the acreage allotment and marketing quota programs, the wool and mohair incentive payment program, and any other program or function assigned by the Secretary or a designee of the Secretary.” 7 CFR § 7.21 (a). As a county tax assessor, Gilder’s duties are, generally, the ascertainment of taxable property, assessments and penalties against unretumed property, and changing real property values established by appeal in prior years. OCGA §§ 48-5-299; 48-5-305.

We ascertain no material interference with Gilder’s ability to carry out his duties as tax assessor because of his membership on the county ASC committee. The Board argued below that his position on the county ASC committee amounted to overseeing farmers. Our review of the relevant federal statutes does not support this contention. Indeed, the county ASC has little, if any, autonomy. Recommendations are made to the state ASC, hearings and investigations are made at the bequest of the state ASC committee, and the review, approval, and certifications of forms, reports, and documents are pursuant to official instructions from either the state or federal level. 7 CFR § 7.21 (b) (1)-(12).

Decided July 11, 2002.

John E. Morrison, for appellants.

Smith & Jenkins, Wilson R. Smith, Thomas W. Everett, for appellees.

We are also not persuaded by the Board’s argument that, based on the conclusions of a 1970 opinion issued by the attorney general, membership on the state ASC committee would render a person ineligible to hold any other civil office in Georgia. See Op. Atty. Gen. 70-137. The opinion provides that “simultaneous membership on [the] county board of education and on [the] federal Agricultural Stabilization and Conservation Committee , [was] prohibited,” pursuant to former Ga. Code Ann. § 89-101 (4). Id.

We note that when the 1970 opinion was issued, the relevant Code section did not include the exemptions discussed earlier, which were added in a 1972 amendment. See OCGA § 45-2-1 (4). Further, while opinions of the Attorney General are persuasive authority, they are not binding on the appellate courts. C. W. Matthews Contracting Co. v. Collins, 214 Ga. App. 532, 533 (448 SE2d 234) (1994).

Accordingly, because the position of county ASC committee member is exempt from exclusion under OCGA § 45-2-1, Gilder is not foreclosed from simultaneously serving on the Wheeler County ASC committee and the Wheeler County Board of Tax Assessors.

Judgment affirmed.

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


author: Smith, Presiding Judge.

text:
    A02A0388.
    CALLAHAN v. THE STATE.
    (568 SE2d 780)
   Smith, Presiding Judge.

Roger Gene Callahan was indicted on two counts of aggravated child molestation by performing an act of anal sodomy on a nine-year-old boy. He was tried by a jury, which found him guilty of one count and acquitted him of the other. Callahan’s motion for new trial, as amended, was denied, and he appeals, raising eight enumerations of error challenging the sufficiency of the evidence and the trial court’s exclusion of certain evidence, failure to give certain jury charges, and restriction of voir dire. We find no merit in Callahan’s enumerations, and we affirm his conviction.

Construed to support the verdict, the evidence presented at trial showed that in September 1998, Callahan and his girlfriend moved in with the girlfriend’s former sister-in-law and her future husband, and their four children: the nine-year-old victim and three younger children. Callahan often agreed to watch the children while the other adults were at work. Approximately two months later, on a Saturday morning, Callahan was alone in the shared mobile home with the two older boys. Callahan came into the victim’s room and told the victim to pull his pants down and bend over the bed. Callahan lubricated his penis and inserted it into the victim’s anus. He then told the victim not to tell anyone and promised he would give him a dollar.

That day, after an argument with his girlfriend, Callahan and his girlfriend left the residence and went to stay at a motel. On Sunday, while the children were at the babysitter’s home across the street from their home, the babysitter found the victim and her son on a bed fully clothed, acting out “doggy-style” sex. The babysitter informed the victim’s stepmother, who instructed the victim to tell his father. When the victim did not tell his father, his stepmother did, and the victim spoke up, saying: “Well, Roger did this to me.”

On Monday, his father and stepmother took the victim to the local pediatric emergency room, where he was examined by a staff nurse and a pediatrician. They found no lacerations or bruises, but they did find that the victim had a dilated anal sphincter. The pediatrician testified that these findings were consistent with the history and time frame given by the victim and that the dilatation was “most likely . . . caused [by] penetration of a male penis.” The victim was also examined that day by a sexual assault nurse examiner, who also testified that her physical findings were consistent with the victim’s recent outcry and his report of the time frame of the molestation.

Also on Monday, Callahan left the motel and went to his brother’s home in Cumming. Early Tuesday morning, Callahan left his brother’s home and went to stay with an old friend in Jasper. He told his brother he was planning to hide out in the mountains like Eric Rudolph. He was arrested there at about 5:00 in the morning, hiding behind a couch in a trailer.

The victim stated Callahan had used a white washcloth to clean up after the molestation. Police officers collected two white washcloths for testing from a pile of dirty laundry at the home, as well as a jar of Vaseline the victim identified as having been used by Callahan to lubricate himself. None of these items showed traces of seminal fluid or fecal material, and the jar did not reveal Callahan’s fingerprints.

1. Callahan contends the evidence was insufficient to support his conviction. We do not agree.

Callahan argues that the evidence was circumstantial and did not exclude every other hypothesis except his guilt and that he provided a reasonable explanation for the victim’s testimony, saying the victim had been in trouble for his behavior with his friend and fabricated the allegation against Callahan to get himself out of that trouble.

Callahan is mistaken. The victim’s testimony provided direct evidence of his guilt. “Taking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize” Callahan’s conviction for aggravated child molestation. (Citations and punctuation omitted.) Brown v. State, 251 Ga. App. 459, 460 (1) (554 SE2d 537) (2001). Here, the testimony was also corroborated by the medical findings, which experts testified were completely consistent with the victim’s allegation of abuse by anal penetration by an adult male within the past 48 hours. This evidence, together with Callahan’s flight, was more than sufficient to authorize the jury to find Callahan guilty of aggravated child molestation under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In three enumerations, Callahan maintains that the trial court erred in excluding certain evidence, all of which he argues was relevant to show alternative explanations for both the medical findings and the victim’s acting out sexually.

(a) After a proffer, the trial court excluded testimony from Callahan’s sister-in-law, who had lived with the victim when he was four or five years old, that during that time period she had once witnessed the victim placing sticks up his own rectum. Citing Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993), and Hall v. State, 196 Ga. App. 523 (396 SE2d 271) (1990), Callahan argues that this evidence was admissible because it showed that both the victim’s sexual behavior with his friend and the medical findings could have been explained by the fact that the victim had previously engaged in this behavior. But the cases cited by Callahan are distinguished factually from this one.

The evidence was excluded on the basis of OCGA § 24-2-3 (b), which prohibits the introduction of evidence relating to the victim’s past sexual behavior. But in Lemacks this court made the distinction that “ ‘behavior’ is not synonymous with ‘experience.’ The intent of the statute is to exclude evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. [Cits.]” Id. at 161. Because the evidence in that case was of a prior forcible rape, which did not reflect on the victim’s character, we held that it was admissible. Id.

In Hall, supra, the trial court permitted evidence to be presented concerning child sexual abuse accommodation syndrome but excluded evidence of prior molestations. We reasoned that excluding the evidence of the prior molestations left the jury with the untrue and unfair impression that nothing except molestation by the defendant would explain the symptoms exhibited by the victim, which were consistent with what had been described to the jury as evidence of sexual abuse. Id. at 524-526 (2).

Here, in contrast, the evidence was of prior sexual experience, not forcible molestation, and was precisely the type of evidence prohibited by the statute. The State did not present any evidence of child sexual abuse accommodation syndrome, so the jury was not left with an unfair impression. And most importantly, the medical findings were not consistent with an injury that may have occurred five or six years earlier. Testimony was presented that the dilatation of the anal sphincter was consistent with penetration within the last 48 hours. Testimony was also presented that the sphincter tone “would return over time unless it’s chronic, repeated, repeated, repeated.” This incident therefore was simply not relevant, and the trial court did not err in excluding it.

(b) Callahan also proffered testimony from his sister-in-law concerning prior sexual activity by the victim with other children, including one incident years earlier, before the incident with the sticks, when she had allegedly caught the victim engaging in oral sodomy with her son while both children were unclothed, and another incident when the victim had been found allegedly acting out sexually with his younger sister.

For the same reasons as those discussed in Division 2 (a), the trial court did not err in excluding this evidence. In addition, contrary to Callahan’s argument, no evidence was presented that the victim was penetrated by his friend when the babysitter found them simulating sex. The medical evidence, in fact, was that the sphincter dilatation was consistent with penetration that had occurred 48 hours prior to the examination. The evidence of prior sex play with other children was not relevant, and it was properly excluded by the trial court under OCGA § 24-2-3 (b).

(c) The trial court also prohibited the sister-in-law from testifying that the victim was raised in a household where sexual activity was open and the victim observed sexual activity.

Callahan cites Jimmerson v. State, 190 Ga. App. 759 (380 SE2d 65) (1989), as support for his argument that this evidence should have been admitted because it was relevant to counter the State’s suggestion that the victim’s knowledge of the specific sexual activity was learned from Callahan. But although the State argued that the victim was imitating the act performed on him by Callahan, the State never made the argument that the victim’s knowledge could have come only from his contact with Callahan. And nothing in the excluded testimony showed that the victim could have learned of this particular sexual activity anywhere else. It therefore was not relevant. Jimmerson dealt with child sexual abuse accommodation syndrome, no evidence of which was introduced here. Moreover, this court has held repeatedly that in child molestation cases, the victim’s reputation for nonchastity or preoccupation with sexual matters is not admissible unless it contributes materially to the issue of the defendant’s guilt or innocence. See, e.g., McGarity v. State, 224 Ga. App. 302, 303-304 (1) (480 SE2d 319) (1997); Martin v. State, 196 Ga. App. 145, 147 (3) (395 SE2d 391) (1990). The trial court did not err in excluding this evidence.

3. Callahan complains that the trial court declined to give three of his requested charges.

(a) Callahan requested the pattern charge on impeachment by evidence of bad character. He argues that it was adjusted to the facts of this case because the victim’s stepmother told the police during a taped interview that the victim makes up stories when he gets into trouble. The State originally objected to the admission of this evidence, but later withdrew its objection, and the jury heard this evidence.

The procedure for impeaching a witness by proof of bad character is set by statute.

The impeaching witness should first be questioned as to his knowledge of the general character of the witness, next as to what that character is, and lastly he may be asked if from that character he would believe him on his oath. The witness may be sustained by similar proof of character. The particular transactions or the opinions of single individuals shall not be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witness’s knowledge.

OCGA § 24-9-84. The stepmother’s testimony did not meet the requirements of the statute. She did not testify to the victim’s general reputation for truthfulness in the community or whether she would believe him under oath. The victim’s credibility therefore was not impeached, and the trial court did not err in declining to give this requested charge.

(b) Callahan requested a charge on false swearing. The charge tracked the language of OCGA § 24-9-85 (b), which provides: “If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” The statute applies when “the witness admits that he wilfully and knowingly swore falsely, or where the testimony is such as to render the purpose to falsify manifest.” (Citations and punctuation omitted.) Steele v. State, 248 Ga. App. 441, 442 (1) (546 SE2d 547) (2001). Callahan argues that the charge should have been given because, although the victim did not admit that he did “willfully and knowingly swear falsely,” the second alternative applies: the testimony at trial was such that it rendered manifest the victim’s purpose to falsify. We do not agree.

When, as here, the witness does not admit to swearing falsely, the question of whether the testimony manifests such an intent is one of credibility, for the jury to decide. Steele, supra. As this court stated in Steele, the

testimony demanded a charge on the credibility of witnesses to be sure. As in the nature of mere conjecture or speculation, however, the possibility of a motive to testify falsely does not evidence a manifest purpose to do so. Neither does it establish that the victim [’s] testimony was wilfully or knowingly false. Accordingly, the victim [’s] credibility was for the jury to determine under a proper instruction from the court. As the trial court gave such an instruction, it did not err in denying the request to charge on OCGA § 24-9-85 (b) .

(Citations omitted.) Id.

(c) Callahan requested a charge stating that his uncorroborated testimony was sufficient to authorize the jury to find him not guilty of the charges in the indictment if that testimony convinced the jury that the State had not proved his guilt beyond a reasonable doubt. In his request, Callahan cited Mency v. State, 228 Ga. App. 640 (492 SE2d 692) (1997), as authority for this proposition. Nowhere in Mency, however, does this statement appear. In Mency, we approved a charge that stated the converse, that in a child molestation or aggravated child molestation case, the uncorroborated testimony of the victim is sufficient to sustain a conviction. Id. at 649. In fact, although the substance of the charge may be sound, that substance was covered in the pattern charges on reasonable doubt, witness credibility, and the State’s burden of proof, which were given here. We have found no cases authorizing a separate charge like that requested by Callahan. The trial court did not err in failing to give this requested charge.

4. Callahan contends the trial court abused its discretion in limiting the scope of voir dire by prohibiting him from asking certain specific questions of prospective jurors. We have reviewed the transcript of the voir dire, and we are satisfied that the trial court did not err.

(a) The trial court refused to allow the question: “Do [you] believe children ever fabricate allegations of molestation or sexual abuse?” Callahan alleges that the question was permissible and designed to reveal the jurors’ biases and inclinations, as permitted by OCGA §§ 15-12-133 and 15-12-164. We do not agree.

This court has held that questions that seek to test whether jurors are willing to accept specific defenses may be disallowed. Meeks v. State, 216 Ga. App. 630, 632-633 (4) (455 SE2d 350) (1995). Here, as in Meeks, Callahan’s proposed question “sought not to ferret out bias or impartiality, but to find jurors amenable to the defense his lawyer would attempt to argue.” Id. Moreover, Callahan was permitted to inquire of prospective jurors whether they had ever had experiences with children in which the children fabricated a story to get out of trouble.

(b) The trial court refused to allow defense counsel to ask prospective jurors if they so identified with a child victim that they could not be fair and impartial. This subject matter, if not this exact question, was allowed in the group questioning by defense counsel. The subject was also covered in the State’s general questioning of jurors. Callahan therefore was not denied the right to explore this area of possible bias.

(c) Callahan sought to ask prospective jurors whether they would automatically believe the child if a child and an adult testified differently to certain facts. The trial court properly disallowed this question. Questions such as this are impermissible because they invade “the right and the responsibility of the jury to determine individual credibility in the context of the entire case,” as do questions regarding the relative credibility of police officers and lay persons. Bennett v. State, 153 Ga. App. 21, 25-26 (264 SE2d 516) (1980). Accord Henderson v. State, 251 Ga. 398, 400 (306 SE2d 645) (1983).

(d) Callahan also desired to ask prospective jurors what it was about themselves that made them believe they could be fair and impartial jurors in this case, and what type of biases they had that would prevent them from being fair and impartial. Both questions were properly disallowed. “The scope of voir dire and the propriety of particular questions are left to the sound discretion of the trial court.” (Citation and punctuation omitted.) Caldwell v. State, 249 Ga. App. 885, 889 (5) (549 SE2d 449) (2001). Both questions were general and nonspecific and were adequately covered in the trial court’s preliminary questioning of prospective jurors. The trial court did not abuse its discretion in disallowing them.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

Decided July 11, 2002

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

       This couple later married and will be referred to as the victim’s father and stepmother.


author: Ruffin, Judge. Barnes, Judge,

text:
    A02A0478.
    VINTSON v. LICHTENBERG et al.
    (568 SE2d 795)
   Ruffin, Judge.

Gene Vintson d/b/a Vintson Construction Company (‘Vintson”) and Richard and Peggy Lichtenberg entered into a contract for Vintson to build a home for the Lichtenbergs. After completing the home, Vintson sued the Lichtenbergs, alleging that they had failed to pay him for additional work he performed that was not covered by the original contract price. The trial court granted the Lichtenbergs partial summary judgment on Vintson’s claims, and Vintson appealed. For reasons that follow, we 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. On appeal from a trial court’s grant of summary judgment, we review the evidence de novo and in a light most favorable to the non-moving party.

Viewed in favor of Vintson, the evidence shows that he entered the construction contract with the Lichtenbergs on August 28, 1997. The contract price for the new house was $686,200, but that price did not include the swimming pool, tennis court, and fencing. Under the contract, the parties agreed that when Vintson substantially completed the house, the Lichtenbergs would pay him “the remaining unpaid amount of the Contract Price together with all amounts due on Change Orders.” The parties further agreed that,

[a]s a condition precedent to final payment, [Vintson] shall submit to [the Lichtenbergs] an affidavit in accordance with OCGA Sec. 44-14-362 (or other applicable law) stating that all labor, materials and equipment and other indebtedness connected with the Work for which the Property might be responsible or encumbered by lien have been paid in full.

In May 1998, the Lichtenbergs moved into the house, and on May 21, 1998, Vintson gave them an invoice for additional construction not covered by the contract price. The invoice reflects that Vintson was charging the Lichtenbergs $97,106 in unspecified “upgrades,” that most of the contract price had already been paid, and that, after calculating certain credits, the Lichtenbergs owed Vintson $65,925. In his appellate brief, Vintson states that the additional charge was for “overages and excess costs [he] incurred ... in the construction.” Richard Lichtenberg testified that this invoice reflected the accounting that he and Vintson agreed to “prior to [their] close on the house,” and it “was Mr. Vintson’s final accounting of overages.” It is undisputed that the Lichtenbergs paid Vintson $57,525 on May 21, and the balance of the invoice at some later date.

On May 29, 1998, Vintson executed a contractor’s affidavit in which he affirmed, in pertinent part,

That [the] improvements or repairs have been fully completed according to the terms of the contract therefor. . . . That the agreed price or the reasonable value of the labor, services and materials incorporated into the improvements or repairs upon the real property . . . has been paid. This affidavit is made under the provisions of Section 44-14-361.2 of the Official Code of Georgia Annotated.

Notwithstanding his contractor’s affidavit, on November 23, 1998, Vintson sent the Lichtenbergs a letter claiming that they owed him an additional $55,832.72 for change orders and extra items listed in the letter. Vintson subsequently sued the Lichtenbergs for this amount, plus interest.

The Lichtenbergs moved for partial summary judgment on the ground that Vintson’s affidavit barred his claim for payment of extra costs. Vintson responded with an affidavit in which he asserted that the Lichtenbergs were indebted to him and that, at the time he executed his contractor’s affidavit, the parties knew that the Lichtenbergs still owed him money for extra work. According to Vintson’s second affidavit, he executed the contractor’s affidavit to “accommodat[e]” the Lichtenbergs in closing their loan, and its “sole purpose . . . was to dissolve all lien rights, not to acknowledge payment.”

Based on this evidence, the trial court granted the Lichtenbergs partial summary judgment. The court agreed with the Lichtenbergs that Vintson’s contractor’s affidavit barred his claim for additional charges. The court further found that “although [Vintson] ha[d] testified that he was owed additional monies at the time of the execution of the Contractor’s Affidavit, no reasonable explanation for the contradiction was offered.”

On appeal, Vintson asserts that the trial court erred in applying the self-contradictory testimony rule because he “offered a reasonable explanation for any contradiction between the Contractor’s Affidavit” and his subsequent testimony. Vintson further argues that the court erred in concluding that the contractor’s affidavit barred his claim because other evidence existed which supported his right to recover the additional charges. We disagree with both assertions.

1. As a general rule, if a party offers self-contradictory testimony on a motion for summary judgment, then the conflicting testimony must be construed most strongly against the party offering it. Testimony “is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

There are situations [, however,] in which an honest mistake has been made in the first statement [, and] the proper approach is to intentionally contradict the first statement by way of explanation. We point out that even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.

In this case, it is clear that Vintson is relying on self-contradictory testimony. On the one hand, he unequivocally averred in his contractor’s affidavit that the agreed price for the construction had been paid. Yet, when he responded to the Lichtenbergs’ motion, he asserted that they still owed him over $54,000. In light of other evidence, Vintson’s explanation that he thought the contractor’s affidavit was a mere accommodation and only pertained to lien rights is unreasonable.

Most compelling is the fact that, only eight days before Vintson signed his contractor’s affidavit, he presented the Lichtenbergs with an invoice which charged them for “upgrades” and reflected an overall financial accounting of the project. In Vintson’s own words, the invoice was “an accounting of overages and excess costs incurred by Vintson in the construction.” After the Lichtenbergs had paid Vintson at least $57,000 of the invoice balance, he stated under oath that he had been paid for the construction. It is unreasonable that Vintson would have remained quiet about the $54,000 claim merely as an accommodation to the Lichtenbergs, when both his invoice and contractor’s affidavit clearly reflected that no such money was owed.

Furthermore, the record shows that Vintson was an experienced builder who had executed contractor’s affidavits in the past. Although Vintson testified that he thought the affidavit meant that there was no lien on the house, he also stated that the affidavit meant “the bills ha[d] been paid.” It is clear that, notwithstanding his explanation that he thought the contractor’s affidavit only pertained to liens, Vintson also understood that he was claiming he had been paid. Thus, we conclude, as a matter of law, that Vintson’s testimony is self-contradictory, that he has not offered a reasonable explanation for the contradiction, and that the contradiction must be construed against him.

2. Construed in this manner, Vintson’s testimony shows that, on May 29, 1998, when he executed the contractor’s affidavit, the Lichtenbergs did not owe him any money under the contract. Vintson nevertheless argues that there is other evidence of his right to recover. Specifically, Vintson points to Richard Lichtenberg’s deposition testimony in which he acknowledged that numerous items claimed by Vintson as additional work constituted legitimate charges over the contract price. But Richard Lichtenberg also clearly stated that he had already paid these charges under the May 21 invoice. Accordingly, Lichtenberg’s testimony does not create a genuine issue of material fact as to whether he owed Vintson for these charges after May 29, 1998, and the trial court did not err in granting summary judgment to the Lichtenbergs on the charges.

3. In light of our decision in Division 2, it is unnecessary to address whether the contractor’s affidavit estopped Vintson from asserting claims for money owed based on work performed before May 29, 1998.

Judgment affirmed.

Pope, P J., concurs. Barnes, J., concurs specially.

Decided July 11, 2002.

William A. Trotter III, for appellant.

Kilpatrick Stockton, Joseph H. Huff, for appellees.

Barnes, Judge,

concurring specially.

Although I concur fully in the majority opinion, I write separately to point out that what Vintson did in his second affidavit was merely to explain why he lied in his contractor’s affidavit. That is not a reasonable explanation for the contradiction between the two affidavits under our law.

       See OCGA § 9-11-56 (c).

       See White v. Cauthen, 235 Ga. App. 245 (509 SE2d 140) (1998).

       The Lichtenbergs acknowledged that a material issue of fact remained as to the cost of a stucco wall and gates Vintson constructed on the sides of the house.

       In his appellate brief, Vintson claims that the trial court never read or considered his second affidavit. Vintson appears to believe that this, by itself, constitutes reversible error. On appeal, however, we review the evidence de novo. See White, supra. Thus, even if the trial court failed to properly consider the affidavit, the faitee is without consequence.

       See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

       Id. at 30 (2).

       (Emphasis omitted.) Id.

       See White, supra at 247; Balest v. Simmons, 201 Ga. App. 605, 608 (1) (411 SE2d 576) (1991).

       See White, supra.


text:
    A02A0825.
    CAMPBELL v. BEAK.
    (568 SE2d 801)
   Smith, Presiding Judge.

Samuel Campbell appeals from the denial of his motion for judgment notwithstanding the verdict (“j.n.o.v.”) or, alternatively, for a new trial after a jury verdict and judgment in an action brought against him by David Beak. Campbell raises only two enumerations of error, complaining that the trial court erred in denying both alternatives in his motion, but he argues a number of reasons as to each. We find no merit in any of Campbell’s arguments, and we affirm the trial court’s denial of Campbell’s motion.

Construed to support the jury’s verdict, the evidence presented at trial showed that Campbell purchased a 1998 Infiniti Q45 automobile in January 1999 from a dealer in Alabama. The vehicle had been in a wreck and had been totaled by the insurer, and the dealer had bought it at auction. The car had a salvage title. Campbell bought parts himself and had the car repaired. He then had the car inspected so that he could obtain a new title. After failing the first inspection, the car passed the second inspection and Campbell was issued a new, nonsalvage title. Campbell and his wife drove the car for several months and then offered it for sale. He placed an advertisement in the Atlanta Journal and received about 15 calls in response. Beak responded to the ad. He testified that when he asked Campbell “specifically, what was the condition of the car. Had the car ever been wrecked, damaged, or in an accident,” Campbell responded that it had not. Beak told Campbell he would get back to him. One other person came out to look at the car, drove it, and made Campbell ah offer. That person mailed Campbell a deposit. Before Campbell received the check, however, Beak called again and asked if the car was still for sale. Beak testified that he again asked Campbell about the car’s history and condition. When Campbell told him another person had mailed a deposit, Beak asked him if he would consider selling him the car if he came with a cashier’s check before Campbell received the check in the mail from the other interested party. Campbell said he would, and Campbell, Beak, and a co-worker of Beak’s met at a service station. Beak testified that he again asked Campbell whether the car had ever been “wrecked, damaged, or in an accident,” and Campbell said it had not. Either because Beak noticed that “something looked a little bit off on the paint color” or because Campbell told him that his daughter had a very minor accident, Campbell told Beak that the front bumper had been repainted. This apparently satisfied Beak, and he and Campbell then reached agreement and signed a bill of sale, with Beak paying $34,350 for the car “as is” and Campbell handing over the car and title.

Beak drove the car away and parked it in his garage that night. The next morning he noticed “a slight little leak that appeared to be some type of. . . oily fluid.” Over the next ten days, he discovered a few other small problems. He eventually took the car in to a dealer in Roswell and requested that these items be addressed under the car’s warranty. The next morning he learned from the dealer that the car’s frame had been damaged and the entire front end and several other parts had been repaired and repainted. He immediately called Campbell, who was “very evasive.” The dealership subsequently informed Beak that the car was not under warranty because of the amount of damage it had sustained and that it would be “very costly” to repair. At a subsequent visit to a body shop, Beak was told that the car was “dangerous” in its present condition and not repairable. When he could no longer reach Campbell at the phone number he had been given, Beak wrote Campbell a letter asking to rescind the transaction. He received no response. Beak then did some research and discovered that Campbell had bought the car as salvage, that it had failed a first inspection after Campbell had it repaired, but that a new title had eventually been issued.

Beak eventually sold the car to a dealer for $16,500, which was the best offer he received. He then brought this suit against Campbell, alleging fraud and violation of the Fair Business Practices Act (“FBPA” or “the Act”), OCGA §§ 10-1-390 through 10-1-407, and seeking punitive damages, costs, and attorney fees. The trial court ordered the trial trifurcated, with a verdict first being rendered on fraud and violation of the FBPA. In the second phase, if necessary, the jury would indicate whether it found that Campbell’s actions were intentional, thereby triggering exemplary damages. In the third phase, the jury would decide upon an amount to be awarded if it found that Campbell’s actions had been intentional.

Campbell moved for a directed verdict on all counts at the conclusion of Beak’s evidence, which was denied. In the first phase of the trial, the jury returned a verdict in favor of Campbell on the fraud claim, and in favor of Beak on the FBPA count in the amount of $15,500. This amount was trebled under the FBPA. In the second and third phases, the jury found that Campbell’s actions were intentional and awarded $15,001. Campbell moved for j.n.o.v. or in the alternative for a new trial, which was denied. This appeal followed.

1. Campbell contends his motion for j.n.o.v. should not have been denied because no evidence was presented that the alleged violation of the FBPA was injurious to the consuming public, as required by the Act.

He argues that this transaction did not come within the Act’s purview because the violation alleged was not injurious to the consuming public in general, but only to Beak. At trial, Campbell denied that Beak asked him three times whether the car had been wrecked. He testified that Beak asked him only once and that he answered truthfully. He denied making any material misrepresentations to Beak. But he argues that even if a misrepresentation was made, it was made privately to Beak and did not breach any duty owed to the general consuming public, as required by the Act.

The law is well-settled in Georgia that even though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the FBPA, that act does not apply to suits based upon deceptive practices which occur in transactions that are essentially private. In other words, unless it can be said that the defendant’s actions had . . . potential harm for the consumer public the act or practice cannot be said to have impact on the consumer marketplace and any act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.

(Citations and punctuation omitted.) Borden v. Pope Jeep-Eagle, 200 Ga. App. 176, 178 (1) (407 SE2d 128) (1991). We cannot agree that Campbell’s actions were purely private.

First, Campbell’s characterization of his actions ignores the fact that he was engaged in an ongoing practice. Evidence was presented in the first phase of the trial that Campbell had sold a car to at least one other buyer, and evidence of similar deception and similar consequences was presented in the second phase.

Second, evidence was presented that Campbell placed an advertisement in the newspaper. It is obvious, therefore, that he intended to reach the general consuming public. That fact distinguishes this case from Borden, supra, and Burdakin v. Hub Motor Co., 183 Ga. App. 90 (357 SE2d 839) (1987), relied upon by Campbell. In both those cases, advertising to the general public was not involved.

2. Campbell correctly notes that Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980), is the seminal case construing the Act. Campbell points out that in Zeeman, this court interpreted the Act

as requiring that the alleged wrongful act in a “consumer transaction” occur in the context of the on-going business in which the defendant holds himself out to the public. Otherwise, the duty the breach of which is being sued upon would be one owed by the defendant not to the consuming public generally but to the individual “consumer” only. There is insufficient public interest in a single instance in which an owner undertakes to sell his own property to invoke the FBPA.

Id. at 85. He argues that because he testified that he was not in the business of selling cars but only bought and sold them as a. “hobby,” the transaction in issue did not come within the purview of the FBPA. He points out that he originally bought the Infiniti for personal use, and no evidence was presented that he had employees, a place of business, or a business license or that he filed taxes as a business. We do not agree.

Whether or not he chose to call what he was doing a business or obtain proper licensing, Campbell testified that he enjoys buying damaged cars, having them rebuilt, and selling them. He estimated that since 1993, he has sold “probably around fifteen” cars. He admitted on his deposition that he sells “probably three” cars per year. He also admitted, both on deposition and at trial, that he did not rebuild more than three cars per year or sell more than five and he was “aware of the law” requiring a license to rebuild more than three cars per year or sell more than five for profit. Even if Campbell’s transactions were to be considered a hobby, that hobby obviously involved engaging in the business of buying wrecked cars, rebuilding them, and selling them on an ongoing basis. He admitted that he sometimes made “a little bit” of profit on this hobby. Indeed, the profit on the transaction with Beak was approximately $14,500. The jury was properly charged regarding these requirements of the FBPA, and it was authorized to conclude that the transaction that formed the basis of this suit was within the Act’s purview.

3. Campbell maintains that a recovery under the FBPA was not authorized because the Act required Beak to have exercised diligence before purchasing the car from Campbell, which he failed to do. This court held in Zeeman, supra, that

since the Act contemplates notice of the deception relied upon as the prerequisite to a suit for recovery of damages resulting from that deception, we construe [OCGA § 10-1-399] as incorporating the “reliance” element of the common law tort of misrepresentation into the causation element of an individual claim under the FBPA. . . . Therefore, under [OCGA § 10-1-399] when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so.

(Citations omitted.) Zeeman, supra at 87.

But the issue of diligence is a matter for jury determination. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 6 (2) (497 SE2d 616) (1998). The jury in this case apparently was convinced that Beak was as diligent as the circumstances warranted. Although this conclusion was not demanded, it was authorized by the evidence. The title did not accurately reflect the car’s actual history. Evidence was presented that Beak viewed the car himself and test drove it. Beak inquired three times as to its condition and history, and the jury obviously believed that Campbell lied in response. Although the vehicle was sold “as is,” that language does not require a different result. Reilly v. Mosley, 165 Ga. App. 479, 481 (301 SE2d 649) (1983). Given that nothing placed Beak on notice that he was being deceived, together with the evidence presented concerning the number of Campbell’s prior vehicle transactions and the evidence of the complaints of other purchasers, the jury’s conclusion on this issue was supported by the evidence.

4. Campbell asserts that Beak’s claim under the FBPA must fail because no evidence of damages was presented. He argues that the trial court charged the jury that the measure of damages for the FBPA claim was the difference between the fair market value of the vehicle when Beak purchased it and its fair market value when Beak sold it. Under this charge, Beak was required to prove the vehicle’s value, rather than its price. And although purchase price is relevant to value, it is not alone sufficient to show value. Messmore v. Roth, 185 Ga. App. 862 (1) (366 SE2d 318) (1988). See also Denson v. State, 240 Ga. App. 207, 208 (2) (523 SE2d 62) (1999).

Campbell is correct that the evidence at trial did not meet the standard set in the trial court’s charge to the jury. But the trial court did not charge the jury correctly as to the measure of damages. To prevail on a private claim under the FBPA, three elements must be established: violation of the Act, causation, and injury. Moore-Davis Motors v. Joyner, 252 Ga. App. 617, 618-619 (1) (556 SE2d 137) (2001). “This court has consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of actual injury suffered.” (Citations, punctuation and footnote omitted.) Agnew v. Great A & P Tea Co., 232 Ga. App. 708, 710 (1) (502 SE2d 735) (1998). The trial court’s error was harmless because Beak did present evidence of the correct measure of damages. And the jury’s verdict may stand because the evidence presented supports it under the correct standard.

5. Campbell contends that the trial court erred in failing to grant partial j.n.o.v. as to attorney fees because Beak failed to prove his attorney fees. We do not agree.

“An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” (Punctuation and footnote omitted.) Cannon Air Transport Svcs. v. Stevens Aviation, 249 Ga. App. 514, 519 (6) (548 SE2d 485) (2001). “It is well established that an attorney may testify as to the reasonableness of his own fee. [Cits.]” Nichols v. Main Street Homes, 244 Ga. App. 591, 593 (1) (536 SE2d 278) (2000). Here, Beak’s attorney did just that. He stated in his place that he was willing to accept an hourly rate of $150, even though he had twice raised his hourly rate during the course of the case. He stated his hours, and he testified that his fees were more than reasonable, given the complexity of the case, his education, and his experience.

Because Beak recovered on only one of two claims, he would normally be required to separate the hours his attorney put in on the fraud claim from those put in on the FBPA claim. See SKB Indus, v. Insite, 250 Ga. App. 574, 578-579 (3) (551 SE2d 380) (2001). In this case, however, the two claims are so similar it would be too difficult to separate the hours spent on each. See generally Regency Nissan v. Taylor, 194 Ga. App. 645, 647 (391 SE2d 467) (1990) (FBPA does not require two elements necessary to show common law tort of misrepresentation). Because of the similarity of the two claims and the difficulty of separating them, we conclude that the trial court did not err in allowing Beak to recover for all the hours his attorney spent on the case.

6. In his final argument, Campbell contends the trial court erred in failing to order a new trial because the jury’s verdict was internally inconsistent. He argues that it was “inherently inconsistent” for the jury to have found for him on the fraud claim and for Beak on the FBPA claim. We do not agree.

The verdict was not necessarily inconsistent. As discussed briefly above, the FBPA differs from common law fraud in that it eliminates two of the five required elements of fraud: scienter and intent to deceive. Taylor, supra. It is therefore entirely possible that the jury found one of these two elements lacking, yet found that Campbell’s actions violated the FBPA. The trial court did not err in declining to order a new trial.

Decided July 11, 2002

Gibson, Deal & Fletcher, John W. Gibson, for appellant.

Steven C. Rosen, for appellee.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       The complaint also sought rescission, but Beak admitted at trial that since he sold the car he could not recover on that count.


author: Ruffin, Judge.

text:
    A02A0914.
    RIGDON v. KAPPA ALPHA FRATERNITY. RIGDON v. CORPORATION OF MERCER UNIVERSITY.
    A02A1444.
    (568 SE2d 790)
   Ruffin, Judge.

Jennifer Rigdon was attacked by a guest during a party she attended at the Kappa Alpha Fraternity (“KA”) house on the Mercer University campus. Rigdon sued KA, the Corporation of Mercer University (the “University”), and her assailant, Sara Richardson, for damages allegedly caused by the altercation. KA and the University moved for summary judgment, and the trial court granted both motions. In Case No. A02A0914, Rigdon challenges the court’s grant of summary judgment to KA, and in Case No. A02A1444, she asserts that the court erred in granting summary judgment to the University. Because both appeals involve common facts and issues, we consolidated. them for review. For reasons that follow, we affirm the court’s judgment in both cases.

To prevail on their respective motions for summary judgment, KA and the University were required to show that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. On appeal from the trial court’s grant of summary judgment, we apply a de novo review of the evidence to determine whether KA and the University met this burden. We also construe the evidence in a light most favorable to Rigdon, as the party opposing the motions.

Viewed in this light, the evidence shows that Rigdon enrolled at the University in the fall of 1996. The following spring she joined the Alpha Delta Pi sorority, but quit that summer because she disagreed with certain practices of the organization. It appears that Rigdon’s departure caused “a lot of controversy . . . within the sorority.”

On October 30,1999, three fraternities hosted a Halloween party at the KA house. As required by the University’s student handbook, the hosts had previously submitted a social event registration form which was approved by the Center for Student Involvement and Leadership. The handbook also required the hosts to designate event monitors, who were “organizational” members, to sign in guests at the party. KA had the requisite number of monitors at the party.

Rigdon was invited to attend the party by a KA member, Adam Montgomery, and by her roommate, who was a member of another hosting fraternity. Shortly after Rigdon arrived at the party, she found Montgomery. Rigdon and Montgomery danced and then went outside and had an alcoholic drink that Montgomery served from the trunk of his car. Later in the evening, while Rigdon and Montgomery were standing beside the dance floor, a woman wearing a pink tube top, later identified as Amy Ussery, inexplicably threw a cold drink on them.

Rigdon remained at the party, and after dancing with a man whom she mistook as Montgomery dressed in a new costume, she followed him to a room upstairs. Rigdon sat on a couch with the man, and after kissing him, she “saw his wig pushed back and . . . realized it wasn’t [Montgomery],” but someone named Chad. Chad told Rig-don that he was going downstairs and suggested that she wait a few minutes before leaving the room so people would not have the wrong impression about what they were doing.

After Chad left, Rigdon waited on the couch. According to Rig-don, “[w]hile [she] was [lying] there, someone poured a drink on [her].” Due to the sting of the alcohol, Rigdon momentarily closed her eyes, and when she opened them, she saw three girls. In her deposition, Rigdon testified: “I didn’t know any of them. The girl wearing the pink tube top[, Ussery,] was there. [And there was a] girl with short straight blonde hair, and a girl with brown hair.”

As Rigdon attempted to leave the room, Ussery pushed her and another woman grabbed her hair. Rigdon tried to leave again, and “some words were exchanged.” Rigdon testified that she did not recall much of what happened next: “I remember the girl with the short blonde hair being extremely angry, and the next thing I remember I was on the floor, on my hands and knees, with people shouting and panicking.” Apparently, the blonde haired woman, later identified as Sara Richardson, had repeatedly punched Rigdon in the face until she lost consciousness. When Rigdon regained consciousness, a man in a pumpkin suit and another person were tending to her injuries, which included a broken nose.

In her complaint against KA and the University, Rigdon repeatedly claimed that the defendants were negligent in failing to provide reasonable security at the party. Rigdon further alleged that these defendants’ failure to protect her constituted negligent and intentional infliction of emotional distress. In granting summary judgment to KA and the University, the trial court found that, because Rigdon’s injuries were caused by the unforeseeable criminal act of a third party, neither defendant was liable for those injuries as a matter of law.

Case No. A02A0914

1. On appeal, Rigdon asserts that the trial court erred in granting summary judgment to KA because the fraternity failed to protect her, despite receiving notice that she might be the victim of a potential altercation. According to Rigdon, the incident in which Ussery threw a drink on her and Montgomery “was sufficient to attract the hosts’ attention to the existence of a potentially dangerous condition, which resulted in the incident complained of.” We disagree.

As a social guest at the KA party, Rigdon was a licensee. As such, KA would generally be liable to her only for wilful or wanton injuries. “However, it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.” Accordingly, if a danger to a licensee is “known and foreseen by the property owner,” then the owner must exercise ordinary care and diligence to protect that licensee from the peril.

Applying these principles to this case, KA would be liable to Rig-don if KA “ha[d] reason to anticipate the misconduct of [Richardson,] the guest inflicting the injury,” and nevertheless failed to exercise ordinary care to prevent the altercation. Thus, Rigdon was required to point to some evidence establishing that Richardson’s violent attack on her was foreseeable to KA. To be foreseeable, Richardson’s attack must have been “substantially similar in type to previous criminal activities occurring on or near [KA’s fraternity house].... For a criminal act to be substantially similar, it does not have to be identical. However, the prior crimes should have put an ordinarily prudent person on notice that [Rigdon] was facing increased risks.”

Rigdon has not shown that Richardson’s attack was foreseeable to KA. The fact that Ussery threw a drink on Rigdon and Montgomery was insufficient to alert KA that Richardson might brutally beat Rigdon. As for the earlier incident, Rigdon testified that “[a] girl came up and poured a drink on [Montgomery] and her.” Rigdon was confused by the inexplicable incident and shocked because the drink was cold. At the time, Rigdon did not know Ussery, and she has cited no evidence that Montgomery knew Ussery either. Likewise, Rigdon has pointed to no evidence that either she or Montgomery knew what precipitated the act. Whatever motivated Ussery, the record reveals that her misconduct was not of such a serious nature as to cause any real concern to Rigdon, who stayed at the party. And there is no evidence that this isolated incident was noticed by anyone other than Rigdon and Montgomery.

Under the circumstances, we cannot discern how this relatively benign incident should have put KA on notice that Rigdon would later be brutally beaten by another individual. Without belaboring the point, having a cold drink thrown on one by a stranger does not make it foreseeable that another stranger will later beat one into unconsciousness. Aside from the drink-throwing incident, Rigdon has cited no evidence showing that KA had any reason to expect that Richardson might attack her. Although Rigdon later discovered that Ussery and Richardson were both members of Alpha Delta Pi, there is no evidence that anyone from the fraternity knew of this relationship. And even if it was known to KA, Rigdon fails to show how knowledge of this relationship would have made Richardson’s violent attack on her foreseeable to the fraternity.

Furthermore, it is undisputed that there were no other prior incidents that would have made Richardson’s attack foreseeable. There is no evidence that anyone associated with KA was aware that Richardson harbored any personal animosity toward Rigdon, nor does the evidence show that Richardson had ever engaged in such conduct before. To the contrary, the record shows that Richardson had never been disciplined by the University for any reason. In addition, the University’s former Dean of Student Affairs, who had been with the University for 23 years at the time of the incident, stated that he was unaware of any prior altercations, fights, or other similar incidents at a fraternity during his tenure. And Rigdon likewise conceded that she had no personal knowledge of any such incidents occurring at the University.

In the absence of any evidence of a substantially similar criminal attack which would have made Richardson’s conduct foreseeable, the trial court properly granted KA’s motion for summary judgment on Rigdon’s negligence claims.

2. Rigdon also argues that the student handbook required KA to implement security measures to assure the safety of its party guests and the fraternity is, therefore, absolutely liable for her injuries. According to Rigdon, “she was owed a duty of care that would ensure her safety while on KA’s premises.” But the record discloses that KA utilized event monitors as required by the handbook, and Rigdon has cited no evidence to the contrary. Furthermore, although a property owner may be held liable for injuries arising out of foreseeable criminal acts of third parties, we are unaware of any authority imposing absolute liability for unforeseeable criminal acts. This argument is without merit.

3. We also reject Rigdon’s assertions that the trial court erred in granting KA summary judgment on her claims of negligent and intentional infliction of emotional distress. Rigdon relies on the same allegations of wrongful conduct that we addressed, and rejected, in Division 1. Thus, for the reasons stated there, we conclude that KA did not engage in any extreme and outrageous conduct, and the trial court properly granted summary judgment in favor of KA on these claims.

Case No. A02A1444

4. Like her appeal against KA, in this appeal Rigdon asserts that the trial court erred in granting summary judgment to the University because the defendant should have foreseen Richardson’s attack. To support this assertion, Rigdon presents a lengthy dissertation on the law concerning the foreseeability of intervening criminal acts. In her discussion, however, Rigdon does not point to any evidence that she claims rendered the attack foreseeable to the University. Instead, Rigdon argues that, because she was a student at a church-affiliated university that purported “to eschew the corruption of, among other vices, alcohol consumption,” it had a duty to protect her from the physical violence that often accompanies such consumption. Rigdon further argues that “it is readily apparent that [the University] enacted [the security requirements in its student handbook] because it had knowledge from previous occasions on its campus which involved personal violence from alcohol consumption and realized the need to protect the safety of social function attendees.”

These arguments are without merit. As for Rigdon’s claim that the University should have foreseen the attack, in light of the fact that she has cited no evidence to support this argument, and in view of our discussion of the evidence in Division 1, we conclude that Richardson’s conduct was unforeseeable to the University. To the extent Rigdon claims that the University is liable because Montgomery was serving alcohol out of the trunk of his car, there is no evidence cited that alcohol played any role in the incident. Moreover, even if Montgomery’s makeshift bar was somehow implicated, we do not see how that would render the University liable. Finally, contrary to Rig-don’s apparent belief that the University owed her a heightened duty of care, we have recognized that universities owe their students “a duty of reasonable care, [and that] college administrators do not stand in loco parentis to adult college students.” The mere fact that the University is church-affiliated does not change the analysis. Accordingly, we conclude that the trial court properly granted the University’s motion for summary judgment on Rigdon’s negligence claims.

5. As with her appeal concerning KA, Rigdon does not rely on any additional conduct to support her argument that the trial court erred in granting summary judgment to the University on her claims for negligent and intentional infliction of emotional distress. Thus, for the reasons stated above, we conclude that the trial court properly granted the University summary judgment on these claims, as well.

Decided July 11, 2002

Burnette & Driggers, G. Samuel Burnette, Benjamin D. Driggers, Christopher J. Ramig, for appellant.

Jones, Cork & Miller, Thomas C. Alexander, Sharon H. Reeves, Chambless, Higdon & Carson, Mary M. Katz, Morriss, Lober & Dob-son, William G. Dobson, for appellees.

Judgments affirmed.

Smith, P. J., and Ellington, J., concur. Eldridge, J., disqualified.

       See Walker v. Hammock, 246 Ga. App. 640-641 (541 SE2d 439) (2000).

       See id. at 640.

       See Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821 (1) (415 SE2d 654) (1992).

       Although the University states in its brief that KA did not have any such monitors, it does not cite any evidence supporting this statement.

       Although Richardson testified in her deposition that she and Rigdon were engaged in mutual combat, for the purpose of summary judgment we will adopt Rigdon’s version of the events. See Moon, supra.

        See Aldridge v. Tillman, 237 Ga. App. 600, 602 (1) (516 SE2d 303) (1999).

       See id.

       (Punctuation and emphasis omitted.) Id. at 602-603.

       Id. at 603.

       (Punctuation omitted.) Moon, supra at 823 (2).

       See Aldridge, supra at 603-604; Moon, supra at 823-824.

       (Punctuation omitted.) Aldridge, supra at 604 (2).

       See id. at 605. Compare Moon, supra (because party host knew that some of his guests were throwing other unwilling guests into the shallow end of a pool and that the plaintiff was an intended target of this activity, the host was required to exercise reasonable care to prevent plaintiff’s injury at the hands of the other guests).

       See Walker, supra at 641-642 (1) (party guest intentionally pushing another guest off deck was not reasonably foreseeable to host); Hunter v. Cabe Group, 244 Ga. App. 162, 164 (535 SE2d 248) (2000) (“[t]hat the attacker might have been loud, rowdy, and inebriated was not enough to put the proprietor on notice of an impending attack on another customer”); Aldridge, supra at 606 (earlier threats and prior incidents insufficient to make assault with knife on guest foreseeable to hostess); Ableman v. Taco Bell Corp., 231 Ga. App. 761, 762-763 (1) (501 SE2d 26) (1998) (physical attack unforeseeable even where evidence showed that assailant verbally threatened victim earlier in the evening).

       See Aldridge, supra at 603-604.

       See Norfolk Southern R. Co. v. Spence, 210 Ga. App. 284, 285-286 (435 SE2d 680) (1993).

       See Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 892-893 (1) (473 SE2d 213) (1996) (fraternity not liable for alcohol-related injuries merely because it sponsored party at which alcohol was consumed where evidence showed that the fraternity did not furnish the alcohol).

       (Citation omitted.) Niles v. Bd. of Regents &c. of Ga., 222 Ga. App. 59, 60 (1) (473 SE2d 173) (1996).

       See Walker, supra; Aldridge, supra; Ableman, supra..


author: Mikell, Judge.

text:
    A02A0062.
    COLON v. THE STATE.
    (568 SE2d 811)
   Mikell, Judge.

Kevin Brian Colon appeals from the trial court’s denial of his motion for new trial following his conviction by a jury of driving under the combined influence of alcohol and drugs, failure to maintain lane, and improper stopping. Because the trial court gave an erroneous instruction on involuntary intoxication, we reverse and remand.

Viewed with all inferences in favor of the verdict, the evidence was that Georgia World Congress Center Police Lieutenant Cameron was on his meal break at approximately 2:00 a.m. on July 29, 2000, at a restaurant on Northside Drive in Atlanta. He was approached by a taxi driver who told him there was a driver in the middle of the roadway at Howell Mill and 14th Street and he was going to kill someone. Cameron went to the intersection and found a Mercedes convertible stopped in the middle of the intersection with Colon at the wheel. The car was not in a single lane, but was facing east in the westbound portion of 14th Street. The engine was running, but Colon could not get the car into gear and traffic was trying to go around him. Cameron asked Colon to move the car out of the intersection, but Colon did not act like he heard the request, which was made over a loudspeaker. As Cameron approached the car on foot, the Mercedes lurched to the side of the road where Colon threw it into neutral or park and began to rev the engine as if trying to pull away. Cameron put his car behind Colon and asked Colon to turn the car off. Colon, who was disoriented, replied that he could not find the key, although it was in the ignition.

Cameron contacted Atlanta police, and Officer Wallace responded. He found Colon still in the car, attempting to drive. Wallace reached into the Mercedes and removed the keys. As he did so, he noticed a strong odor of alcohol. He asked Colon to do a “modified attention” stand, but Colon was unable to do it and appeared to be trying to get things off his body. Wallace read Colon the implied consent warning, cuffed him, and placed him in the backseat of the police car. Colon, who was a body builder and in excellent shape, was twitching, and Wallace initially thought he had “crack crawlies.” Colon then began to vomit white liquid, and Wallace asked him “man, what’s wrong with you?” In response, Colon said he had been drinking and had some GHB. Colon was removed from the police car until he finished vomiting.

Colon tested positive for alcohol, 0.09 grams per 100 milliliters of blood, and positive for GHB, 98 milligrams per liter of blood.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Colon’s first enumeration is that the trial court erred in denying his oral motion in limine which sought to exclude his statement regarding GHB because he had not been given his Miranda warnings prior to making it. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

We agree, as the trial court apparently concluded, that Colon was in custody for purposes of Miranda at the time the statement was made. State v. Whitfield, 214 Ga. App. 574 (3) (448 SE2d 492) (1994). For the statement to be excluded, however, it is also necessary that it be the result of express questioning or its functional equivalent, i.e., “ ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ [Rhode Island v. Innis, 446 U. S. 291, 300-301 (100 SC 1682, 64 LE2d 297) (1980).]” Walton v. State, 267 Ga. 713, 717 (4) (482 SE2d 330) (1997).

Routine booking questions attendant to an arrest are generally considered as exempt from Miranda, because such questions are not related to the investigation of the case, serve a legitimate administrative need, and are not generally intended to elicit incriminating information. See Franks v. State, 268 Ga. 238, 239 (486 SE2d 594) (1997); Brooks v. State, 237 Ga. App. 546, 547 (1) (515 SE2d 851) (1999). As recognized in Franks v. State, supra at 242 (Sears, J., concurring specially), police officers have the responsibility to ask medical questions as part of routine booking in order to fulfill the government’s obligation to provide medical treatment to one in custody. See also Williams v. Dept. of Corrections, 224 Ga. App. 571, 575 (481 SE2d 272) (1997).

There is nothing in the record here to indicate anything other than Officer Wallace’s concern for Colon’s physical condition as a result of the violent vomiting which he suffered, and, therefore, there was no clear error in the trial court’s denial of Colon’s motion in limine.

2. Colon also contends that the implied consent warning read to him was insufficient and the results of the tests of his breath and blood should have been excluded.

Colon argues that the officer failed to read the final five words, “under the Implied Consent Law,” in the sentence “[w]ill you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” That failure, however, is not reflected in the transcript or record here. While the officer did, when he read the warning during trial from the implied consent warning card he carried with him, omit these five words, he also stated that he read the warning to Colon on the scene just like it was on the card, which included those five words.

Even assuming that this omission occurred, since the first clause of the warning is that “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances,” we fail to see how such an omission could be said to have changed the substance of the meaning of the warning. There was no error. Harrison v. State, 235 Ga. App. 78, 79 (508 SE2d 459) (1998) ; State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590) (1998).

3. During the direct examination of Dr. McCurdy, the state toxicologist, he was asked by the state whether being under the influence of GHB would cause one to be “incapacitated.” Colon’s objection was that this “called for a conclusion of law that would either be within the province of the Court or the jury” and Dr. McCurdy was not “qualified as an expert in law.” He complains here of the denial of this objection because the testimony regarding Colon’s capacity was “the ultimate issue in the case and also contained a mixture of law and fact” which should have been left to the jury.

To the extent that the objection voiced at trial is included in the enumeration here, it is considered. See Chesser v. State, 228 Ga. App. 164, 165 (1) (491 SE2d 213) (1997).

Dr. McCurdy testified that he held a Ph.D. degree in medicinal chemistry with a minor in pharmacology and had been, for 29 years, a research toxicologist for the state crime lab. Additionally, he taught pharmacology and toxicology at Georgia State University and had published approximately 25 papers in these areas. He was tendered by the state as an expert witness in the areas of “alcohol, GHB, toxicology, and pharmacology.”

Dr. McCurdy properly was allowed to testify regarding the effects of GHB combined with alcohol on a person’s capacity to know right from wrong. Baise v. State, 232 Ga. App. 556, 559 (2) (502 SE2d 492) (1998); Vaughn v. State, 228 Ga. App. 185, 186 (491 SE2d 426) (1997).

There was no merit to the objection raised below.

4. Colon enumerates as error the trial court’s failure to allow Sweeney, a pharmacist, to testify as an expert on his behalf.

A decision as to whether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused. Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). An expert is one whose habits and profession endow that person with the particular skill needed in forming an opinion on the subject matter at inquiry. Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131) (1991). Formal education in a particular subject is not always a prerequisite for expert status, since special knowledge may be derived from experience as well as from study. Taylor v. State, 261 Ga. 287, 290 (404 SE2d 255) (1991).

Griffin v. State, 243 Ga. App. 282, 286 (5) (531 SE2d 175) (2000).

Here, Sweeney testified he had a B.S. in biochemistry and pharmacy and had taken some graduate courses but was not a pharmacologist. Asked how he had obtained his familiarity with GHB and its interaction with the human body, he said, “just my education, reading on the drug.” He had never dealt with anyone under the influence of GHB, and his reading on the drug consisted primarily of otherwise unspecified information on the Internet. His pharmacy practice consisted of working with diabetics and asthmatics.

There was no manifest abuse in the trial court’s exercise of discretion in concluding that, on these facts, Sweeney had not been shown to have sufficient expertise to testify as an expert on this issue. See Saltis v. A.B.B. Daimler Benz &c., 243 Ga. App. 603, 606 (1) (a) (533 SE2d 772) (2000).

Further, although Sweeney was not allowed to testify as an expert, there was no attempt by Colon to have him testify as a lay witness, which he could have done. See Bailey v. State, 229 Ga. App. 869, 874 (4) (494 SE2d 672) (1997); McLelland v. State, 203 Ga. App. 93, 95 (6) (416 SE2d 340) (1992).

5. In his fifth and sixth enumerations, Colon complains of the trial court’s charge on involuntary intoxication and its failure to give his Request to Charge No. 9. They are considered together.

(a) Regarding the involuntary intoxication charge, Colon’s specific objection is to the court’s instructing the jury that ££[t]he defense of involuntary intoxication is not available to excuse driving under the influence.” This instruction amounted to reversible error.

The entire portion of the court’s charge relating to involuntary intoxication was that

[a] person shall not be found guilty of a crime when at the time of the conduct constituting the crime, the person because of involuntarily [sic] intoxication did not have sufficient mental capacity to distinguish between right and wrong in relation to the criminal act. Involuntary intoxication means intoxication caused by (a) consumption of a substance through excusable ignorance or (b) the coercion, fraud, trick, or contrivance of another person. The defense of involuntary intoxication is not available to excuse driving under the influence. It absolves responsibility only if the intoxication renders the defendant incapable of distinguishing right from wrong. If the inability to distinguish right and wrong is the product of voluntary intoxication, there is no defense.

While it is true that the jury charge must be considered as a whole when determining its correctness, Roberson v. State, 236 Ga. App. 654, 655 (1) (512 SE2d 919) (1999), this charge contained the clearly erroneous statement that involuntary intoxication was not available as an affirmative defense to driving under the influence. See Larsen v. State, 253 Ga. App. 196, 198 (1) (558 SE2d 418) (2002); Flanders v. State, 188 Ga. App. 98 (371 SE2d 918) (1988); accord Commonwealth v. Darch, 54 Mass: App. Ct. 713 (767 NE2d 1096) (2002). This declarative assertion by the trial judge was straightforward and unambiguous. The modifiers following it are not likely to have erased an erroneous impression from the minds of the jurors. Furthermore, the error was not harmless, as the defendant raised the issue of involuntary intoxication in his testimony when he claimed that someone put an unknown drug in his drink, unbeknownst to him. See Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991).

Decided July 12, 2002.

Head, Thomas, Webb & Willis, Thomas J. Thomas, for appellant.

Joseph J. Drolet, Solicitor-General, Ebony A. Phillips, Assistant Solicitor-General, for appellee.

The case at bar illustrates again that instructing juries in the precise language of the Suggested Pattern Jury Instructions serves the goal of judicial economy as well as the goal of providing justice to both sides, the state and the defendant.

(b) Colon’s Request to Charge No. 9 was that “[t]o convict the defendant on the offense of Driving Under the Influence, the State must prove beyond a reasonable doubt that the Defendant consciously intended to be in control of a moving vehicle while intoxicated not merely that the Defendant’s actions caused the vehicle to move.”

The trial court did give an appropriate charge on intent, although not in the language requested by Colon, and there was no error as claimed. Mote v. State, 212 Ga. App. 551, 553 (2) (442 SE2d 799) (1994); see Savage v. State, 252 Ga. App. 251, 253-255 (1), (2) (556 SE2d 176) (2001).

In summary, because the trial court erred in instructing the jury on involuntary intoxication, the matter should be reversed and remanded for a new trial.

Judgment reversed and case remanded.

Andrews, P. J., and Phipps, J., concur.

       Colon was also convicted of driving under the influence of alcohol and driving under the influence of drugs, but these two counts were merged into the driving under the influence of alcohol and drugs at sentencing.

       GHB, known as Georgia Home Boy, is gamma hydroxybutyric acid, a central nervous system depressant.

       Although Colon argues that Dr. McCurdy was never properly tendered and accepted by the court as an expert, the record shows that he was tendered and allowed to testify as an expert regarding alcohol, GHB, pharmacology, and toxicology. Wiley v. State, 238 Ga. App. 334, 335 (3) (519 SE2d 10) (1999).

       This court has previously found a pharmacologist competent to testify regarding the effects of drugs on a person. See, e.g., Sinkfield v. Oh, 229 Ga. App. 883, 885 (1) (495 SE2d 94) (1997).