author: Birdsong, Judge.

text:
    A90A1140, A90A1141, A90A1142, A90A1144. A90A1143.
    SCROGGINS v. THE STATE. MURRAY v. THE STATE.
    (401 SE2d 13)
   Birdsong, Judge.

These are joint appeals by four defendants convicted of various offenses committed during a fracas following a police response to a “domestic” call. Gregory Scott Scroggins was convicted of aggravated assault with intent to murder and of the misdemeanor offense of affray; Paul Orson Murray, Jr., was found guilty of affray and felony obstruction; Greg Scroggins’ father, Philip Elbert Scroggins, Sr., and mother, Angie C. Scroggins, were found guilty of felony counts of obstruction but sentenced as for misdemeanor obstruction.

On January 29, 1989, about 2:00 a.m., Officer D. P. Crook responded to a 911 call made by Greg Scroggins from a convenience store near Smyrna, Georgia. Greg Scroggins and his roommate Paul Murray, who had been arguing at the store, were seen by the store clerk leaving on foot. Officer Crook followed and soon saw them engaged in an argument by the side of the road. The officer motioned for Murray to approach the police vehicle, but Murray and Scroggins ran. Officer Crook followed them to Scroggins’ parents’ house nearby, where an altercation ensued between Murray and Scroggins. Officer Crook called for back-up assistance. Mr. and Mrs. Scroggins came out of the house in their nightclothes and participated in a struggle to get the officer away from their son, who, by this time, was “out of control.” When back-up officers arrived, they succeeded in putting “flexicuffs” on Scroggins’ hands behind his back, but he continued to kick the officers.

Ultimately, Officer Crook got Greg Scroggins to the ground and straddled him. He heard Scroggins making noises with his mouth as if to bring up spittle; then Scroggins raised forward and bit Office Crook on the forearm. The bite was strong enough to tear through the officer’s long-sleeved shirt, and left distinct, full-mouth bite wounds which took ten months to heal. Thereafter, at the hospital, Greg Scroggins told a nurse that he was “HIV positive,” i.e., infected with the AIDS virus. Being so informed, Officer Crook went to Scroggins and said, “Dude, do you have AIDS?” Scroggins just looked at him and laughed. He had just two months earlier been diagnosed as having the HIV virus.

On May 25, 1989, each defendant was indicted for affray and obstruction of an officer, in Indictment No. 89-1228. All were arraigned on July 7, 1989, and all demanded a speedy trial. Calendar call was scheduled to be held October 12.

At the October 12 calendar call, Greg Scroggins learned he had that day been indicted in Indictment No. 89-2319 for two felony counts of aggravated assault: aggravated assault upon the person of Officer Crook with intent to murder, and aggravated assault by assaulting Officer Crook with his teeth in a manner likely to result in serious bodily injury.

Greg Scroggins was advised that day that arraignment and trial of this new indictment for aggravated assault would be held in four days, October 16, and that all charges would be tried jointly. The State served Scroggins with a list of nine witnesses, but advised him only one, an AIDS expert, would be called. On October 16, Greg Scroggins asked for a continuance for adequate time to prepare for defense of the new charges, and filed a demand for list of witnesses, demand for scientific reports, demand for defendant’s statements, and demand that Officer Crook submit to an HIV test. The trial court refused Scroggins’ motion for extension of time to file motions and prepare for trial, and denied Murray’s and Mr. and Mrs. Scroggins’ motions for severance. The next day (October 17) the trial court heard Scroggins’ motion to suppress evidence of a positive HIV virus test made pursuant to warrant, and his motion in limine to exclude evidence of homosexuality. The motion to suppress the HIV test result was granted for irregularity in the warrant, pursuant to OCGA § 31-17A-1.

The trial court did grant a two-day continuance for the trial, but no more, it seemingly being evident that Scroggins, who in September filed his own motions in limine concerning the AIDS issue, was aware AIDS might become an issue in the case.

Appellants were tried jointly on October 18, 1989. They here consolidate their appeals. Held:

1. Appellant Greg Scroggins contends the verdict of guilty for aggravated assault with intent to murder is not supported by evidence, as there was no evidence the HIV virus can be transmitted by human saliva, as the expert witness testified there are no documented cases of the virus being transmitted through saliva, and that there is at best only a “theoretical possibility” the virus can be transmitted via human saliva.

(a) Appellant contends the State did not prove the bite was a “deadly weapon” as it was required to do. See Talley v. State, 137 Ga. App. 548 (224 SE2d 455).

Appellant has misconstrued the express Code provisions under which he was indicted and tried. OCGA § 16-5-21 (a) (1) and (2) provides: “A person commits the offense of aggravated assault when he assaults: ... (1) With intent to murder, to rape, or to rob; or . . . (2) With a deadly weapon or with any object, device, or instrument which ... is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) Appellant was indicted and convicted of “aggravated assault. . . with intent to murder.” In Thadd v. State, 231 Ga. 623, 624 (1) (203 SE2d 230), involving an indictment for aggravated assault with intent to rob, the Supreme Court noted that under the statute a person commits aggravated assault when he assaults with intent to murder, rape or rob, or with a deadly weapon. “Thus there is no requirement that the assault must be with a deadly weapon in order to convict of this offense.” Id. See Hanvey v. State, 186 Ga. App. 690 (368 SE2d 357).

OCGA § 16-5-21 (a) (1) proscribes the commission of assault with the intent to accomplish the more serious crime of murder, robbery or rape. No more need be alleged or proved. The statute deliberately sets out the offense of having intent, as disjunctive to an assault with a deadly weapon.

This law expressly proscribes, as a discreet offense, not the attempt to murder, but an assault made “with intent to murder.” See Harper v. State, 94 Ga. App. 264, 267 (94 SE2d 105), as to the comparison of “attempt” and “intent.” The law has an indisputable interest in censuring assaultive behavior committed with the intent to do another more serious crime, irrespective of the method of assault. OCGA § 16-5-21 (a) (1) classifies as “aggravated,” those assaults which, though not committed with a deadly weapon or with a device likely to produce serious bodily injury, are made with the intent to commit the felonious crime of murder, robbery, or rape.

It is essential to point out that the concept of requiring proof that appellant’s bite and/or saliva constituted a deadly weapon is irrelevant to the offense charged and does nothing but confuse the determination of the offense.

Prior to the comprehensive criminal code revisions in 1968, the law provided: “An assault with intent to murder, by using any weapon likely to produce death, shall be punishable [as a felony].” Penal Code 1910, § 97; see legislative history notes, OCGA § 16-5-21; Wright v. State, 168 Ga. 690 (148 SE 731). It was often held that to convict for assault with intent to murder, the assault must have been made with a weapon likely to produce death. See, e.g., Reddick v. State, 11 Ga. App. 150 (74 SE 901). But the Supreme Court, in Wright v. State, supra at 695, held that the statute did not intend to define what constitutes the offense, but merely upgraded its status from misdemeanor to felony. Moreover, at the common law the offense of assault with intent to murder had never required proof of use of a deadly weapon or any weapon at all; and the statute did not require it, but if the indictment charged the use of a weapon likely to produce death, then of course that element must be proved. Id. at 694; Paschal v. State, 125 Ga. 279, 280 (54 SE 172); Walker v. State, 124 Ga. 440, 441 (52 SE 738); Johnson v. State, 92 Ga. 36, 38 (17 SE 974); Monday v. State, 32 Ga. 672.

Despite the fine exposition in Wright, supra, and despite the crystal clear language of the 1968 enactment, there remain in some quarters confused ideas that the genetic core of felony assault is the use of a deadly weapon. Watts v. State, 142 Ga. App. 857 (237 SE2d 231), cited by both sides in this case for various propositions, confronted an indictment charging assault with intent to rob “by pointing a shotgun, a deadly weapon,” at the victim. The defendant’s act was especially obnoxious, in that he grabbed the victim’s neck, held a sawed-off shotgun to his head and threatened to blow his brains out. Under the statute, it was clearly unnecessary for the State to allege that assault with intent to rob was committed with a deadly weapon. But, having averred it, the State had to prove it.

The gun in Watts, supra, was unloaded, which fact alone proves the beauty of a statute expressly recognizing that such behavior, as a mere assault (see OCGA § 16-5-20), coupled with the intent to rob, rape or murder, is well classified as an aggravated assault. In Watts the court sought to show .that in “the assault context” a weapon can be deadly because the victim thinks it is, whereas in the “specific intent context,” the fact that a weapon is deadly “is used to support an inference that the defendant had a specific intent to kill.” Id. at 858.

Watts also said cases such as Paschal, supra, did not apply, being “specific intent” cases which hold “that a specific intent to kill cannot be inferred from the use of a weapon unless it is shown, as a matter of fact, that the weapon in the way it was used was likely to produce death.” Watts at 859. But, Paschal did not address such a proposition; rather, it held that if the indictment cites a deadly weapon, “the character of the weapon [must be proved].”

The State indicted appellant Greg Scroggins for assault with intent to murder; this was all it needed to allege. There was no requirement to prove the method of assault was deadly or likely to inflict serious bodily injury. Thadd, supra; Wright, supra; Paschal, supra; Walker, supra.

The legislature, in making such conduct an aggravated assault, viewed it as no trivial thing..The assault, coupled with the intention to do worse, is the crime.

This case is different from United States v. Moore, 846 F2d 1163 (8th Cir.), where an HIV infected inmate bit two officers. Moore was not charged with or convicted of assault with intent to murder, but of assault with a “deadly and dangerous weapon.” Id. at 1164. The federal court found that under the evidence presented in that case, it could reasonably be found that a human bite was a deadly and dangerous weapon without regard to whether it might transmit the AIDS virus.

Appellant cites a recent Alabama case to bolster his assertion that his bite must be proved a deadly weapon. But that case, Brock v. Alabama, 555 S2d 285, was decided upon a statute which provides: “(A) person commits the crime of assault in the first degree if: (1) with intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument.” (Emphasis supplied.) The Alabama statute, unlike the Georgia statute, is not aimed at a mere assault committed with intent to murder. Under Alabama law, including statutory definitions of deadly weapon, we cannot fault the Brock decision, but it bears no relation to this case or to Georgia law.

According to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), the evidence was such that a rational juror could find proof of the assault with intent to murder pursuant to OCGA § 16-5-21 (a) (1), beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, without proof that the method used constituted a deadly weapon.

(b) The jury’s finding of “intent to murder,” under the Jackson v. Virginia standard is supported by the evidence that appellant sucked up excess sputum before biting Officer Crook, this being evidence of a deliberate, thinking act rather than purely spontaneous; and that appellant laughed when the officer asked him if he had AIDS.

Intent is a matter of mind and is evidenced by external circumstances capable of proof (Smith v. State, 36 Ga. App. 643 (137 SE 794)); the intent of the accused may be gathered from all the circumstances of the case, and is a matter for the determination of the jury. Patterson v. State, 85 Ga. 131 (11 SE 620). It is not necessary to find an inference of such intent in the suggested fact that appellant’s bite was a deadly weapon, and we do not consider such inferential evidence in the course of this review. At best, what appellant’s defense amounts to is the defense of impossibility. But, “[i]t is no defense to a charge of criminal attempt that the crime the accused is charged with attempting was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as the accused believed them to be.” (Emphasis supplied.) OCGA § 16-4-4. An assertion (which was never conceded by the expert and never in evidence) that it was “impossible” to transmit the HIV virus in this fashion is even less a defense to the charge of assault “with intent to murder” than it would be to an accusation of attempt to murder, since an “attempt” requires a more substantial act towards completion than does mere “intent.” See Traylor v. State, 77 Ga. App. 439 (1) (48 SE2d 749). On sound reasoning, the court in Indiana v. Haines, 545 NE2d 834, relied on a similar statute to uphold an attempted murder conviction on similar facts.

“[A]s it is the intent to commit a crime, not the possibility of success, that determines whether an act or omission constitutes the crime of attempt ... it is not necessary that the crime be factually possible, nor is it necessary that there be a present ability to complete the crime. . . .” (Emphasis supplied.) 22 CJS 153, Criminal Law, § 123. As the evidence supports a rational finding appellant believed he could transmit the virus in the method used, it is immaterial to the offense involving intent that it might have been impossible to do so.

Appellant analogizes this case to one where a defendant assaults another by “shooting” him with a toy pistol, since appellant asserts the bite of an AIDS-infected person is perfectly harmless, like a “toy.” Obviously however, not even that defendant, if he was sane, would believe he could murder by shooting with a toy pistol, and so he could not have the intent to murder. We must asseverate, however, the case would be very different if the defendant did not know the pistol was a toy, but thought it was real, and used it to assault another with the intent to murder. In those circumstances he would certainly be prosecutable under OCGA § 16-5-21 (a) (1) for an assault “with intent to murder.”

Evidence of an intent to murder, coupled with the assault, exists beyond a reasonable doubt in this case. But beyond that, we think the peculiar circumstances of this case, including the dearth of scientific knowledge as to the precise ways and means of transmitting this disease, support a finding that, by his deliberately biting another and injecting saliva into the blood stream while knowing he was infected with the AIDS virus, appellant’s assault amounted to such wanton and reckless disregard as to whether he might transmit the disease, that the jury could infer a malicious intent, i.e., to murder. Gallery v. State, 92 Ga. 463 (17 SE 863). The jury could either find specifically that appellant believed he could transmit the disease in this fashion or that he did not care whether he transmitted the deadly disease. Gallery, supra.

A wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill. See Biegun v. State, 206 Ga. 618, 629-630 (58 SE2d 149); Gallery, supra. “The law infers guilty intention from reckless conduct; and where the recklessness is of such character as to justify this inference, it is the same as if defendant had deliberately intended [it].” Pool v. State, 87 Ga. 526, 530-531 (13 SE 556). Malice is a matter of intent, and the intent of an accused is a matter peculiarly within his own knowledge; there is no way to prove it except by inference from established facts. Sheffield v. State, 241 Ga. 245, 246 (244 SE2d 869).

All the circumstances of the case, including the unsettled state of the body of knowledge as to the transmission of the AIDS virus, support a jury inference beyond a reasonable doubt that a murderous intent was proved by direct or circumstantial evidence (Paschal, supra), or by inference of malice (defined as “ ‘wickedness of purpose; a spiteful or malevolent design against another; a settled purpose to injure or destroy another’ ” (Patterson, supra at 133)) from an act so wanton and reckless that it “betrayed a reckless disregard of [another’s] life equivalent to an actual intention deliberately to kill him,” (Johnson, supra at 40), or from an assault committed while intending to kill or not caring whether he kills ... or not.” (Emphasis supplied.) Gallery, supra.

(c) The trial court erroneously charged the jury that, in order to convict of the offense, it must find the use of a deadly weapon and intent to murder. This error caused defendant no harm; it simply placed an extra burden of proof upon the State and therefore enured to appellant’s benefit. Emmons v. State, 142 Ga. App. 553 (236 SE2d 536).

It is suggested, however, that the jury might have used such finding to support an inference of intent to murder (see Patterson, supra at 133-134), and that to this extent the verdict cannot stand, for lack of evidence. If any such inference were made, we would find it harmless, since the other evidence in the case amply supports the finding of intent to murder and it is highly probable such error did not affect the verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

In any event, we have no hesitation in saying that, as in all cases, whether a thing or an action is a deadly weapon is for jury determination. (Hall v. State, 189 Ga. App. 107, 108 (375 SE2d 50)), and the evidence in this case does support such a finding beyond a reasonable doubt.

A deadly weapon is one capable of producing death. The expert in this case did not testify that it was impossible to transmit the HIV virus via human saliva, but only that there were no such “documented cases” although there were two “reports” of it. But, he made it clear the disease had come to the forefront of medical attention in much less than ten years and there was a great deficiency of information on the subject. He stated that he himself would not “deep French kiss a beautiful woman,” and that medical uncertainty was such that standard medical procedure was to wear protective gloves when dealing with all bodily fluids of persons, even those not known to be infected with the virus. From the assiduousness of direct and cross-examination, by the end of the expert’s testimony the jury could reasonably conclude that it knew about as much as medical science knew at the date of trial, which was not very much, and amounted mostly to what had been so far documented as having occurred, with hardly anything ruled out as “impossible,” and with not much by way of conclusion being ventured, except that the disease itself is deadly. The expert testified that the “risk” of transmitting the virus via saliva was somewhat less than the documented risk of tránsmitting the virus into the blood stream via a needle prick, which was one in 250. From this, we think a reasonable juror could conclude, in common wisdom, that the statistical “risk” of contracting AIDS from an infected person via a needle prick is in actuality a random risk, which alike applies to each and every one of the 250 persons, or to all of them if a large enough theory group is considered, i.e., the total population; and that therefore every needle prick introducing the blood of an infected person is as potentially deadly as the next, and therefore, in the most reasonable common sense of the word, every one is deadly. The same may be said of the supposed much-reduced “risk” of transmitting the virus through saliva.

Appellant makes much of the expert’s testimony that there is only a “theoretical possibility” of transmittal of the virus through saliva, but a “theoretical possibility” is clearly a “possibility,” or else the phrase has no meaning. So long as medical science concedes this “theoretical possibility,” the jury was well within the evidence to consider the human bite of a person infected with the AIDS virus to be “deadly.” Where a medical expert under thorough examination, testifies to his knowledge of the subject and still cannot state one way or the other whether a particular instrumentality is “deadly,” the jury in considering all the circumstances, including the risk to the victim and to society, is at least as competent as the witness to determine whether it was an instrument likely to produce death. See Moran v. State, 120 Ga. 846 (48 SE 324).

Most significantly, the expert’s testimony showed if an HIV infected person has an open wound, lesion or sore, or gum disease in his mouth through which his blood might be transferred into the blood stream of another, as with a bite, then the victim’s risk of contracting the virus is the risk associated with transmittal via the blood, and not of the spittle or sputum. On this basis, the jury could rationally find the risk of transmitting the virus through a human bite rendered appellant’s bite a “deadly” weapon, if not his spittle, beyond a reasonable doubt.

In this connection, appellant and his amici allude to OCGA §§ 16-5-60 and 31-22-9.1, contending that since the legislature in § 31-22-9.1 (a) (4) set forth what “bodily fluids” were to be involved (blood, semen, and vaginal fluids) in HIV testing and, by extrapolation, in reckless conduct of persons infected with the HIV virus, only these can be recognized as “deadly” or “dangerous.” This argument is shortsighted. The legislature is required to enact statutes which are not unconstitutionally vague, and this is as much as should be drawn from § 31-22-9.1. Science has not limited the media of AIDS to blood, semen, and vaginal fluids, and certainly the expert in this case did not do so; it seems highly unlikely the legislature would undertake to make such a pronouncement. Neither OCGA § 16-5-60 nor § 31-22-9.1 has anything to do with a jury’s consideration of what is a deadly weapon in determining whether there has been an aggravated assault.

Although the jury was not required to find appellant’s bite was a deadly weapon to find the offense of assault with intent to murder under OCGA § 16-5-21 (a) (1), we conclude no possible harm came to appellant from the imposition on the State in the jury charge of the extra burden of proving the bite was a deadly weapon, and such a finding was supported by evidence beyond a reasonable doubt. Jackson v. Virginia, supra.

We find the verdict of aggravated assault with intent to murder to be well supported by the evidence in the case. Jackson v. Virginia, supra.

2. Appellant contends the trial court erred in denying him a continuance as to trial for aggravated assault, thereby denying him effective assistance of counsel and procedural due process. We find no reversible error in the circumstances of this case. Appellant clearly did know, as shown by the filing of his own motions in limine prior to being indicted for aggravated assault, that the issues at trial might encompass the AIDS virus. Appellant was granted a two-day continuance. He has not suggested any evidence or witness or any matter whatsoever which he could have produced in defense if he had had more “time to prepare.” Mere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses. Tucker v. State, 172 Ga. App. 86 (321 SE2d 817). This case involves serious issues, but they are not intricate or convoluted, and appellant has not suggested any manner in which he could have defended more adroitly if he had had more time. In fact, the testimony of the expert witness was as much in appellant’s favor as not, and appellant relied upon it heavily to prove his defense both below and here, i.e., that his bite was not a deadly weapon.

Appellant contends he had no time to subpoena expert witnesses in his behalf, but inasmuch as the issue in the case is not whether his bite was a deadly weapon, but rests upon the question of his intent, appellant could not have helped his case by producing a dozen experts to say his bite was not a deadly weapon. See OCGA § 16-5-21 (a) (1); Thadd, supra; Wright, supra. In any event, defense counsel’s examination of the expert witness was thorough, showing no lack of familiarity with the subject. If there is anything exculpatory appellant could have done with more time, he has not suggested it here or on motion for new trial, as is his duty. Appellant has the burden on appeal to show not merely error, but harm, and he has not done this. Osborne v. State, 193 Ga. App. 276 (387 SE2d 383); see Willis v. State, 193 Ga. App. 659 (388 SE2d 869).

3. The trial court did not err in denying appellants’ motions for severance of trial of the offenses of affray and obstruction, from the aggravated assault charges made against Greg Scroggins. The record shows there were no antagonistic defenses among the issues, and appellants have asserted none; the number of defendants did not create confusion as to the evidence and law applicable to each defendant; and no evidence prejudicial to the misdémeanor defendants was admitted against Greg Scroggins. See Stephens v. State, 170 Ga. App. 267, 268 (316 SE2d 847), as to the standards and the trial court’s discretion for granting motions to sever trial.

We reject the assertion that the AIDS issue relevant to appellant Greg Scroggins operated to the prejudice of the remaining defendants. There is no evidence or suggestion in the record that any of the other defendants is infected with the AIDS virus, and the jury was given enough information from the expert witness to prevent any conclusion that their mere association with appellant made them liable to have the virus.

4. Appellants contend the trial court erred prejudicially in denying Greg Scroggins’ motion in limine seeking to prohibit the State from making any reference to issues of homosexuality. Any relevance in the State’s question whether Greg Scroggins and Paul Murray had a sexual relationship would be limited to a showing that a particular emotional relationship existed such as exists among many other persons engaged in domestic disputes, which might have affected the conduct of those particular appellants in their commission of the offenses of affray and obstruction of an officer. As to relevance of evidence in questionable cases, see Baker v. State, 246 Ga. 317, 319 (271 SE2d 360). Even assuming error in the denial of the motion in limine, no harm was done to any appellant, since the hospital nurse denied Scroggins told her he was homosexual and since Murray testified their relationship was platonic only. As for the suggestion that the raising of the issue of homosexuality discriminates against homosexuals or against persons with the AIDS virus or who associate with infected persons, the jury was well advised by the expert, and we can take judicial notice, that the disease itself is no respecter of persons and does not discriminate, so any suggestion of sexual preference was harmless as a matter of fact. There was no evidence as to how Greg Scroggins contracted the disease and, as to any of the offenses, we fail to see what it matters. And, the evidence did not tend to place appellant’s character in issue. Rollins v. State, 164 Ga. App. 452, 453 (297 SE2d 352).

5. Appellants Greg Scroggins and Paul Murray moved for directed verdicts of acquittal as to affray, on grounds the indictments alleged a fight occurred at the convenience store whereas the evidence shows there was no fight at the store. The trial court did not err in denying these motions. As to the standard for directing a verdict of acquittal in a criminal case, see OCGA § 17-9-1. The evidence did not demand a finding that Scroggins and Murray did not engage in a fight with another person “in and about” the convenience store as to the indictment alleged. There was no fatal variance in the indictment and proof justifying acquittals. OCGA § 17-9-1 (a); see Henry v. State, 154 Ga. App. 120 (267 SE2d 653); Ingram v. State, 137 Ga. App. 412 (224 SE2d 527).

6. Appellants contend the trial court erred in granting the State’s ex parte motion to subpoena the expert witness, Dr. Rimland; erred in allowing evidence upon the release of confidential AIDS information in violation of OCGA § 24-9-7; and erred in denying appellants’ motion for new trial.

We find no error. Prior to the State’s efforts to subpoena the expert witness and obtain information as to Scroggins’ having the HIV virus, or AIDS, the appellant on September 25 filed his own motion in limine asserting that the State, in the affray and obstruction counts then pending, would attempt to introduce evidence or “otherwise leave the jury with the impression that he has tested positive for the HIV virus and to make references to his current medical condition,” which he asserted was irrelevant and would place his character in evidence.

OCGA § 24-9-40, which governs in this case (see OCGA § 24-9-47 (s) (1) (B)), provides that the privilege of a patient in any medical information “shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding.” Appellant placed “at issue” the issue of AIDS in this case by his conduct in committing an act which is inextricably linked to the question of his having AIDS, or where his having the virus is the gravamen of the prosecution. Accordingly, the statute as to disclosure of confidential AIDS information (§ 24-9-47) was not available to appellant in this case as to any indicted charge, in the first instance, since Scroggins no longer had any confidential right in it.

Decided November 5, 1990

Rehearing denied December 6, 1990

Gregory Z. Schroeder, Bruce S. Harvey, Michael R. Hauptman, for appellants.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Moreover, we must conclude on its face that OCGA § 24-9-47 was never intended to be a shield in a prosecution for criminal conduct involving the AIDS disease. OCGA § 24-9-47 (t) does not require notice to a defendant of the State’s ex parte request for disclosure of AIDS information “in connection with a prosecution for the alleged commission of reckless conduct under subsection (c) of Code Section 16-5-60.” OCGA § 24-9-47 (t) (1) (A). This provision proves an overriding policy to facilitate prosecution of HIV infected persons for criminal conduct with potential for endangering any member of society. We think obviously the legislature’s failure in this directive to include prosecutions for a crime of wilful conduct, as in this case, by a person with the AIDS disease or HIV virus, was an oversight.

7. In view of our ruling in Division 6, infra, the denial of Greg Scroggins’ motion to seal the record concerning any confidential AIDS information was not error.

8. We find no error in the trial court’s denial of appellants Greg Scroggins’ and Paul Murray’s motions for supersedeas bond. Appellants were not denied the opportunity for hearing on this issue. There was evidence of record to support the trial court’s findings pursuant to Birge v. State, 238 Ga. 88 (230 SE2d 895). The burden to present sufficient evidence authorizing a stay of execution and release on bond is upon the defendant, following conviction for a crime (Pressel v. State, 161 Ga. App. 488 (287 SE2d 780)); and, the trial court’s decision is one of discretion, and we will not find abuse of it if there is any evidence to support it. Cooper v. State, 178 Ga. App. 709, 716-717 (345 SE2d 606). There was evidence supporting the trial court’s denial of supersedeas bond as to both Greg Scroggins and Paul Murray; therefore, we find no error.

Accordingly, we find no cause to reverse any of these convictions upon any enumeration of error raised by any appellant.

Judgments affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1210.
    HUNTER v. THE STATE.
    (400 SE2d 641)
   Cooper, Judge.

Appellant was convicted in a bench trial of manufacturing marijuana in violation of the Georgia Controlled Substances Act. The sole enumeration of error is that the trial court erred in denying his motion to suppress because probable cause for the issuance of the warrant was lacking and the warrant was illegally executed. Specifically, appellant argues that the supporting affidavit was false and misleading in its characterization of the informant as “reliable,” in its assertion that marijuana had been observed within three weeks of the date of the affidavit and in its misrepresentation of the corroborating evidence. In addition, appellant contends the police wrongfully entered his home by force at 1:00 a.m., kicking the door down without knocking or otherwise announcing their presence.

When requesting the warrant, the only information which affiant gave to the magistrate was that contained in the affidavit supporting the warrant. The affidavit provided that the affiant, an investigator in the narcotics unit of the sheriff’s department, was notified by a confidential informant that three weeks prior to the date of the affidavit informant had been in appellant’s home with appellant’s grandson and had observed approximately 200 live marijuana plants varying in height, large lamps, used to grow marijuana and three trash cans containing suspected marijuana in appellant’s basement. The informant stated that the basement windows were covered with boards on the inside of the house, and dirt had been pushed against the windows outside to prevent the plants from being seen outside the residence. Affiant represented that this information had been “proven to be true and correct” within the past 72 hours primarily based upon a telephone conversation, monitored by another officer, between the informant and appellant’s grandson in which the grandson confirmed the fact that the two had been to the residence and had seen the marijuana three weeks before in the various stages of growth as previously described by the informant. The grandson also stated that the marijuana was still in the house, and when asked if the two could return to the house to get marijuana, he replied that they would have to wait a couple of weeks because appellant found out they had taken marijuana on their earlier visit by discovering marijuana leaves which the two dropped on the floor. The affidavit noted that affiant’s independent investigation with Southern Bell and the tax assessor confirmed that the phone was listed in appellant’s name and the house was owned by appellant and Joyce S. Hunter. Affiant also stated that the informant indicated that automatic weapons were present in the house and for that reason affiant requested that a “no knock” clause be included in the search warrant.

1. A search warrant, regular and proper on its face, is presumptively valid, and the burden is on the person who moves to suppress evidence to show that the affiant “engaged in misconduct in executing the affidavit or that material misrepresentations were knowingly or recklessly included in the affidavit. . . .” Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989). In the suppression hearing, affiant testified that although he had not received information from the informant in the past, he believed the information was corroborated by the telephone conversation monitored by the other officer and therefore was reliable. Appellant contends that affiant misled the magistrate by neglecting to reveal that affiant had never dealt with this informant before. A review of the affidavit reveals that affiant referred to the informant as “reliable and confidential” throughout the affidavit, never representing that informant was an individual with whom he had an ongoing relationship. We find that the reference to the informant as “reliable and confidential” was not made to deceive the magistrate but was based on affiant’s belief that he had corroborated informant’s claims. See Hayes v. State, 182 Ga. App. 319 (1) (355 SE2d 700) (1987).

Appellant also argues there was a material discrepancy in time between the informant’s sighting of the contraband in appellant’s home and the representations in the affidavit. The grandson testified that their visit occurred on or about November 30, 1988; however, in the telephone conversation in January, six weeks later, the informant and the grandson stated they had been in appellant’s home approximately three weeks before. Notwithstanding the grandson’s testimony at the hearing, affiant testified that the informant was not sure of the exact date he had been in appellant’s residence. He could only be sure that it was after Thanksgiving. The affidavit reflects what the facts were at the time the warrant was requested, that the two agreed that they had seen the marijuana approximately three weeks before and that several days before the warrant was executed the grandson confirmed that the contraband remained in appellant’s home. “It is well recognized that time is an element of probable cause, but ‘the precise date of an occurrence is not essential. Rather, the inquiry is as to whether (under the totality of circumstances) the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant.’ [Cit.]” State v. Evans, 192 Ga. App. 216, 222 (384 SE2d 404) (1989).

Appellant next contends that excluding the verification of the ownership of the house and the telephone listing, affiant’s independent investigation failed to sufficiently confirm the informant’s claims. Testifying at the hearing, affiant admitted not verifying whether the basement windows were boarded up; however, affiant stated that he went to the house prior to the search and found that it was some distance from the road on a heavily wooded lot. Affiant drove up the driveway to the house, and although he remained in his vehicle, he observed that the house matched the detailed description given by the informant. Appellant also maintains that the averments regarding the telephone conversation consisted entirely of the second officer’s conclusions of what was said and that the grandson did not say he had seen marijuana in appellant’s home since the visit with the informant, nor did the grandson specify what amount of marijuana was still present. Our review of the record demonstrates that the grandson’s testimony at the hearing was consistent with the second officer’s testimony at the hearing and with the statements in the affidavit. We likewise do not find that the corroboration was deficient because the grandson failed to specify how much marijuana remained in appellant’s home. To the contrary, although the grandson did not specify an amount, he very graphically described the quality and condition of the marijuana which was still present. “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth . . . before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that the contraband or evidence of a crime will be found in a particular place. . . . (Cit.)’ ‘Using the common-sense approach under the totality of circumstances rule, it is acknowledged that this is a type of subjective finding by the court on a case by case basis. In making a judgment call here, seemingly we must “quibble as little as possible on words, and go directly to the substance.” ’ ” Floyd v. State, 191 Ga. App. 569, 570 (382 SE2d 668) (1989).

We find that the information submitted to the magistrate in support of the search warrant was sufficient under the “totality of circumstances” test as set forth in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) and the trial court was correct in denying the motion to suppress. “Decisions on questions of fact and credibility made by the trial court at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Williams, supra at 678. “As a reviewing court, our duty is simply to ensure that the magistrate or judge had a substantial basis for concluding that probable cause existed. [Cits.] Further, . . ., in close cases where it is not easy to determine if an affidavit demonstrates the existence of probable cause, ‘ “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded . . . warrants.” [Cits.]’ Examination of the . . . contents of the affidavit in support of the warrant, using a totality of the circumstances test, reveals that the [magistrate] had a substantial basis for concluding that probable cause existed. [Cit.]” Id. at 681.

Decided November 14, 1990

Rehearing denied December 6, 1990

Wade M. Crumbley, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.

2. Compliance with OCGA § 17-5-27 in the execution of a search warrant is not required where the police have a reasonable, good faith belief that forewarning would increase their peril or lead to the immediate destruction of evidence. Scull v. State, 122 Ga. App. 696 (1) (178 SE2d 720) (1970). The information provided by the informant regarding the possibility of the presence of automatic weapons in appellant’s home, which was included in the affidavit, was sufficient reasonable ground to authorize a “no-knock” search. See Hout v. State, 190 Ga. App. 700 (1) (380 SE2d 330) (1989). The warrant in the instant case, however, does not contain a “no-knock” clause. The affiant testified that the magistrate verbally agreed to include the clause in the warrant but instead hand wrote “include ‘no knock clause’ ” on the affidavit. “The mere fact that the issuing magistrate did not expressly authorize a ‘no-knock’ search is of no consequence. Where there is a “ ‘good faith belief on the part of the officer’ ” that the requirements of OCGA § 17-5-27 are obviated, “ ‘his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence he obtains.” [Cits.]’ ” Neal v. State, 173 Ga. App. 71 (2) (325 SE2d 457) (1984). Based on the foregoing, we find that the warrant was properly executed and the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1497.
    MARLEY et al. v. SILVER DOLLAR CITY, INC.
    (400 SE2d 337)
   Cooper, Judge.

Appellant Theresa Marley suffered injuries while riding on a water-slide ride at an amusement park owned and operated by appellee. She and her husband appeal from the trial court’s grant of summary judgment in favor of appellee.

The record reflects that appellants and their two children went to White Water Park to ride some of the various water slides. Mrs. Marley watched several persons ride a slide called the “Bonzai Pipeline” before deciding that it was safe enough for her and her children to ride. The ride consisted of being propelled downward by the force of gravity and the flow of water through a tube and then exiting into a pool of water. Mrs. Marley was injured when she exited the tube in an upside down position.

Decided November 19, 1990

Rehearing denied December 6, 1990

Cathey & Strain, Edward E. Strain III, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, for appellee.

Appellants argue that since there was nothing to put Mrs. Marley on notice that she would exit into the pool of water in anything other than a seated position, Mrs. Marley cannot be said to have assumed the risk of injury. We disagree. This case is controlled adversely by Atlanta Funtown v. Crouch, 114 Ga. App. 702 (3) (152 SE2d 583) (1966). “ ‘A person who rides or uses an amusement device assumes the hazards naturally and obviously arising from the proper use and operation of the device, such as the hazards inherent in the operation of a miniature car or scooter, if it is properly designed, constructed, and maintained.’ [Cits.]” Atlanta Funtown v. Crouch, supra at 713. We conclude that the risk of landing upside down after being propelled downward by the force of gravity and flow of water was a normal hazard of the “Bonzai Pipeline,” and Mrs. Marley assumed that risk upon entering the ride. See Atlanta Funtown v. Crouch, supra. Accordingly, we find no error with the grant of summary judgment to appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A90A0808.
    RICHARDS et al. v. WILKINSON SHAVING COMPANY.
    (400 SE2d 344)
   Carley, Chief Judge.

The relevant facts in this workers’ compensation case are as follows: After working for appellee-employer for less than 13 weeks, Joseph D. Richards was killed in an employment-related accident. Appellant-claimants, who are Richards’ widow and his minor children, sought workers’ compensation benefits. The Administrative Law Judge (ALJ) found that Richards’ average weekly wage, as calculated under OCGA § 34-9-260 (2), was sufficient to entitle the claimants to an award of the maximum allowable benefits. After conducting its de novo review, the Full Board adopted the ALJ’s award as its own. On appeal to the superior court, however, the award was reversed on the ground that the evidence did not authorize a calculation of Richards’ average weekly wage pursuant to subsection (2) or any other subsection of OCGA § 34-9-260. According to the superior court, “there is a crack in [OCGA § 34-9-260] through which these claimants have fallen. If one is injured or killed while working at a new job (less than 13 weeks), in a unique position (with no ‘similar employees in the same employment’) and one does not have a ‘full-time weekly wage’ (e.g., as here, one works on a percentage basis), the statute provides no method of computing an average weekly wage. Therefore, . . . while claimants may have a right to compensation, they have failed to provide sufficient evidence of the proper amount of compensation, and the relief they seek must be denied.”

The claimants petitioned this court for a discretionary appeal from the superior court’s reversal of their award. Their petition was granted in order to review the superior court’s holding that the evidence was insufficient to authorize an award of maximum benefits based upon a calculation of Richards’ average weekly wage pursuant to subsection (2) of OCGA § 34-9-260.

1. “If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination [of the average weekly wage].” (Emphasis supplied.) OCGA § 34-9-260 (2). Although not explicit, the phrase “a similar employee in the same employment” refers to a similar employee of the same employer. “Such an employee would be one who is not necessarily in the precise same job classification and pay scale as the injured employee, but who at least performs a similar type job for the same employer.” Hiers & Potter, Ga. Workers’ Compensation Law & Practice (2d ed.), § 17-2, p. 228. Accordingly, if appellee had no such similar employee in its employment during the relevant 13-week period, then a calculation of Richards’ average weekly wage clearly could not be based upon subsection (2) of OCGA § 34-9-260.

Although the superior court concluded that Richards held “a unique position (with no ‘similar employees in the same employment’) . . .,” a review of the record shows that the claimants did adduce evidence that appellee had a “similar employee in the same employment” who had worked substantially the whole of the 13 weeks immediately preceding Richards’ death. However, the claimants were unable to adduce any direct evidence as to what that similar employee’s wages had actually been for that 13-week period. Neither appellee’s owner nor the similar employee himself could remember what the latter’s earnings had been during those 13 weeks and all relevant business records had apparently been destroyed in a fire. Accordingly, the issue to be decided is whether this lack of any direct evidence as to the actual earnings of appellee’s similar employee during the 13 weeks prior to Richards’ death mandates a reversal of the award of maximum benefits as ostensibly calculated under subsection (2) of OCGA § 34-9-260.

2. “ ‘(T)he burden of proof is on the claimant to establish by sufficient competent evidence the basis upon which his compensation is to be computed.’ [Cit.]” Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216, 217 (348 SE2d 586) (1986). However, this burden need not be met with direct evidence. “Circumstantial evidence may be utilized in workers’] compensation cases. [Cits.]” Employers Mut. &c. Ins. Co. v. Rosenfeld, 130 Ga. App. 251, 252 (3) (202 SE2d 678) (1973). The ALJ and Full Board “cannot arbitrarily reject evidence but must follow the rules of evidence and consider all competent evidence submitted. . . .” Medley v. Hartford Acc. & Indem. Co., 121 Ga. App. 54, 55 (1) (172 SE2d 461) (1970). Among those rules of evidence which the ALJ and Full Board must follow is OCGA § 24-4-2, which “reads as follows: ‘What amount of evidence will change the onus or burden of proof is a question to be decided in each case by the sound discretion of the court.’ This section has no application to the burden of proof placed by the pleadings. The law therein announced applies only to the burden of evidence which may, ... as to any particular fact or issue, shift from one party to the other. As to the discretion which the law of this section invests in the trial judge, he may call to his assistance in reaching a correct decision other well-recognized and fundamental principles of procedure and practice which are so well recognized that they take the form of substantive evidence. The judge may consider the question of peculiar knowledge.” Department of Revenue v. Stewart, 67 Ga. App. 281, 288 (4) (20 SE2d 40) (1942). Thus, “facts that are peculiarly within the knowledge of a party must be proved by him, and [the ALJ and Full Board] may more promptly discharge a [claimant] from his burden of evidence . . . when knowledge as to the proposition is peculiarly within the power of his opponent. . . .” Hyer v. Holmes & Co., 12 Ga. App. 837 (4) (79 SE 58) (1913).

The amount of the earnings of appellee’s similar employee during the relevant 13-week period was clearly a matter which was within appellee’s rather than the claimants’ “peculiar knowledge.” Nevertheless, the claimants did attempt to adduce direct evidence as to this issue. However, this attempt was frustrated because neither the similar employee nor appellee’s owner could remember what those wages had been and appellee’s records were shown to have been lost in a fire. However, the record demonstrates that the claimants then adduced evidence showing that the earnings of two similar employees of another employer during the 13-week period had been great enough to authorize an award of maximum benefits. This evidence was, under the circumstances, sufficient circumstantial evidence of the earnings of appellee’s similar employee to meet the claimants’ burden of proof under subsection (2) of OCGA § 34-9-260, and to shift to appellee the burden of coming forward with some rebutting evidence showing that the actual wages of its similar employee during the 13-week period had, in fact, not been as great as those of the two employees of the other employer. See generally Dillard v. Holtzendorf, 140 Ga. 17 (78 SE 414) (1913); A.A.A. Hwy. Express v. Hagler, 72 Ga. App. 519, 520 (1) (34 SE2d 462) (1945). However, appellee did not come forward with any such rebuttal evidence. Accordingly, the ALJ and the Full Board were authorized to find that Richards’ average weekly wage had been circumstantially shown under subsection (2) of OCGA § 34-9-260 and to make an award of maximum benefits to the claimants based upon that circumstantial evidence. “Circumstantial evidence is sufficient to sustain a verdict in a civil case where it reasonably establishes the theory relied on, and preponderates to that theory rather than to any other reasonable hypothesis ([cit.]); but such evidence need not be inconsistent with all other reasonable theories beyond a reasonable doubt or to the point of logical demonstration. [Cit.]” Dodd v. Callaway, 76 Ga. App. 629, 634 (3) (46 SE2d 740) (1948).

The effect of such a holding is not to allow the claimants to recover indirectly what they could not recover directly. Subsection (2) of OCGA § 34-9-260 refers to the wages of a similar employee of the same employer and the evidence as to the wages of the two employees of another employer was, therefore, not admissible and probative as direct evidence of Richards’ average weekly wage under that provision. However, the claimants had otherwise proved that appellee had in its employment during the relevant 13-week period a similar employee the amount of whose actual earnings was within the appellee’s “peculiar knowledge.” All we hold is that, under these circumstances, the evidence of the wages earned by similar employees of another employer was admissible and probative as circumstantial evidence of the wages that had been earned by appellee’s similar employee. If appellee had countered this circumstantial evidence by some evidence showing that its similar employee had actually earned wages which would authorize an award of less than the maximum benefits, then an award of the maximum benefits under subsection (2) of OCGA § 34-9-260 would not be authorized. See generally Allgood v. Dalton Brick & Tile Corp., 81 Ga. App. 189-190 (3, 4) (58 SE2d 522) (1950). However, appellee did not come forward with any such evidence and the superior court erred, therefore, in holding “that there is a crack in the statute through which these claimants have fallen.” “We think a construction of [OCGA § 34-9-260] which would defeat payment of compensation where the act had become operative in virtue of [OCGA §§ 34-9-1 and 34-9-2] . . . would constitute an unjustifiable defeat of the obvious legislative purpose in enacting the law.” Slaten v. Travelers Ins. Co., 197 Ga. 1, 7 (28 SE2d 280) (1943).

Decided November 26, 1990

Rehearing denied December 7, 1990.

J. Edward Staples, for appellants.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Andrew J. Hill, Jr., for appellee.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Carley, Chief Judge. Sognier, Judge,

text:
    A90A1113, A90A1352.
    ROLLESTON v. HUIE et al. (two cases).
    (400 SE2d 349)
   Carley, Chief Judge.

The relevant facts in these two appeals are as follows: In her capacity as guardian of her minor niece, appellee-defendant Ms. M. Aubrey Munford retained appellant-plaintiff to act as her legal counsel. However, Munford subsequently discharged appellant' and retained appellee-defendant Stell Huie as her attorney. Thereafter, appellant filed suit against Munford, naming her as a defendant in both her individual and her guardianship capacities, and against Huie and his law firm. As against Munford in both of her capacities, appellant alleged a contract claim for additional legal fees and, as against Huie and his law firm, appellant purported to allege a tort claim based upon certain statements that had been made to him in a telephone conversation with Huie.

Munford moved to dismiss that contract claim which was being asserted against her in her guardianship capacity and Huie and his law firm moved for judgment on the pleadings as to the tort claim which was being asserted against them. The trial court granted both motions, leaving the case pending only as to the contract claim against Munford in her individual capacity. As to Huie and his law firm, the trial court directed the entry of final judgment pursuant to OCGA § 9-11-54 (b) but, as to Munford in her guardianship capacity, the trial court neither directed the entry of final judgment, nor certified for immediate review its order granting her motion to dismiss. In Case No. A90A1113, appellant appeals directly from the grant of final judgment on the pleadings in favor of Huie and his law firm and also from the non-final grant of Munford’s motion to dismiss. In Case No. A90A1352, appellant appeals directly from the trial court’s subsequent grant of Huie’s and his law firm’s post-judgment motion for attorney’s fees pursuant to OCGA § 9-15-14. The two cases are hereby consolidated for appellate disposition in this single opinion.

Case No. A90A1113

1. This court has no jurisdiction to consider the merits of the non-final grant of Munford’s motion to dismiss. As noted above, the case remains pending against Munford in her individual capacity and, absent compliance with OCGA § 9-11-54 (b) or OCGA § 5-6-34 (b), the grant of her motion to dismiss the claim that was being asserted against her in her guardianship capacity is not final and not presently appealable. See generally Collier v. Rogers, 173 Ga. App. 621 (327 SE2d 588) (1985).

Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980) is not authority to the contrary. Munford’s motion to dismiss was directed to one of the two contract claims being asserted against her, which contract claims are entirely separate and distinct from the tort claim being asserted against Huie and his law firm. The non-final grant of Munford’s motion to dismiss will in no way affect the propriety of the trial court’s grant of Huie’s and his law firm’s motion for judgment on the pleadings. “Thus, the [non-final order as to Mun-ford] is not ‘tied to the appeal of an appealable order or judgment.’ [Cit.]” Nash v. Johnson, 192 Ga. App. 412, 415 (2) (385 SE2d 294) (1989).

2. The alleged actionable tortious statement attributed to Huie is a “threat” to file a counterclaim against appellant for legal malpractice if appellant should bring suit against Munford to recover additional legal fees. According to the complaint, this “threat” is actionable in tort as an unlawful “attempt to disseminate information tending to impair [appellant’s] credit or business and professional repute” in violation of OCGA § 16-8-16 (a) (3).

OCGA § 16-8-16 is a criminal provision. “ ‘(T)he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who [claims to have been] injured thereby.’ [Cit.]” Oswald v. American Nat. Can Co., 194 Ga. App. 882, 883 (392 SE2d 26) (1990). Although OCGA § 16-8-16 establishes the public policy of this state, nothing within its provisions purports to create a private cause of action in tort in favor of an alleged victim. Accordingly, the civil liability of Huie and his law firm must be determined under the applicable provisions of the tort law of this state, not the inapplicable criminal provisions of OCGA § 16-8-16. Moreover, even if OCGA § 16-8-16 were to create a private cause of action in tort, appellant would nevertheless have failed to state a viable claim thereunder. Pretermitting whether the threat could be characterized as “unlawful,” it is undisputed that Huie obtained no “property of or from [appellant] by threatening to” file the counterclaim for legal malpractice on behalf of his client.

The most that can be said for appellant’s allegations is that they purport to state a tort claim against Huie and his law firm under the theory that the “threat” constituted the intentional infliction of emotional distress. However, it is clear that the mere filing of a lawsuit is not the type of humiliating, insulting or terrifying conduct which will give rise to a claim for the intentional infliction of emotional distress. Saveli, Williams, Cox & Angel v. Coddington, 176 Ga. App. 179, 180 (2) (335 SE2d 436) (1985); East River Savings Bank v. Steele, 169 Ga. App. 9 (311 SE2d 189) (1983); Georgia Power Co. v. Johnson, 155 Ga. App. 862, 863 (2) (274 SE2d 17) (1980). Since the actual filing of a lawsuit, standing alone, does not give rise to a viable claim for the intentional infliction of emotional distress, the mere “threat” to file a lawsuit certainly does not. See Moses v. Prudential Ins. Co. of Am., 187 Ga. App. 222 (369 SE2d 541) (1988) (holding that a telephone threat to resort to physical violence and to litigation does not state a claim). “[T]he ‘threats’ associated with institution of a civil action cannot and do not constitute duress and are not actionable in tort.” (Emphasis supplied.) Mobley v. Coast House, Ltd., 182 Ga. App. 305, 307 (355 SE2d 686) (1987). It follows that the trial court correctly granted judgment on the pleadings in favor of Huie and his law firm.

3. Appellees’ motion for assessment of a penalty for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is denied.

Case No. A90A1352

4. The first issue for resolution is whether we have jurisdiction over this direct appeal from the trial court’s grant of Huie’s and his law firm’s post-judgment motion for attorney’s fees pursuant to OCGA § 9-15-14.

OCGA § 5-6-35 (a) provides that appeals in certain specified instances “shall be taken” by application for a discretionary appeal. “A careful reading of OGGA § 5-6-35 leads us to the inescapable conclusion that the legislature never intended for the application procedure to be circumvented.” State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989) (construing OCGA § 5-6-35 (a) (8)). An appeal from an award under OCGA § 9-15-14 is included among those appeals which “shall be taken” by application for a discretionary appeal. Since an award of attorney’s fees or expenses of litigation under OCGA § 9-15-14 is made pursuant to an entirely separate and distinct post-judgment procedure and often rests upon factors which have no relation whatsoever to the merits of an appeal from the underlying judgment itself, it would seem apparent that the legislature never intended for the application procedure to be circumvented even in those instances where a direct appeal has been filed from the underlying judgment. See State Farm, Mut. Auto. Ins. Co. v. Yancey, supra. It is only in those instances wherein the OCGA § 9-15-14 award is clearly connected to the merits of an appeal from the underlying judgment that the latter can be said to have any bearing on the former. Thus, in its review of an application for a discretionary appeal, this court does consider the underlying basis for an OCGA § 9-15-14 award to be an important factor in its decision whether or not to grant the application. When it appears that a reversal of the underlying judgment would necessarily render the OCGA § 9-15-14 award erroneous, this court grants the application so as to review both the judgment and the award in light of the entire record, thus avoiding the anomalous possibility that the OCGA § 9-15-14 award will be allowed to stand notwithstanding the reversal of the underlying judgment upon which the award was erroneously predicated.

Nevertheless, our Supreme Court has “conclude[d] that a judgment awarding attorney[’s] fees and costs of litigation pursuant to OCGA § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable. [Cit.]” Haggard v. Bd,. of Regents &c. of Ga., 257 Ga. 524, 526 (4a) (360 SE2d 566) (1987). See also Standi v. Gwinnett County, 259 Ga. 507, 508 (384 SE2d 666) (1989). We are compelled to follow this interpretation of OCGA § 5-6-35 (a) (10). Accordingly, a party aggrieved by a post-judgment OCGA § 9-15-14 award is required to comply with the discretionary appeal procedure of OCGA § 5-6-35 (a) (10) only in those instances where no direct appeal has been otherwise taken from the underlying judgment. See Scott v. McLaughlin, 192 Ga. App. 230 (384 SE2d 212) (1989). However, in those instances where, as here, a direct appeal has been taken from the underlying judgment, a party may also appeal directly from the OCGA § 9-15-14 post-judgment award without regard to the discretionary appeal procedures of OCGA § 5-6-35 (a) (10). Haggard v. Bd. of Regents &c. of Ga., supra; Standi v. Gwinnett County, supra. It follows that we do have jurisdiction over this appeal.

5. “The trial court awarded attorney[’s] fees and expenses of litigation on the basis of both OCGA § 9-15-14 (a) and (b). OCGA § 9-15-14 (a) provides for a mandatory award. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under both standards the record supports the trial court’s award.” Haggard v. Bd. of Regents &c. of Ga., supra at 527 (4c).

6. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Judgment in Case No. A90A1113 affirmed in part and appeal dismissed in part. Judgment in Case No. A90A1352 affirmed.

McMurray, P. J., concurs. Sognier, J., concurs specially.

Decided November 28, 1990

Rehearing denied December 10, 1990

Moreton Rolleston, Jr., pro se.

Long, Aldridge & Norman, John L. Watkins, Jack H. Watson, Jr., for appellees.

Sognier, Judge,

concurring specially.

I concur fully in Divisions 1 through 4, but concur specially with regard to Division 5 and its discussion of the attorney fees award.

The trial court based its award of attorney fees on both paragraphs (a) and (b) of OCGA § 9-15-14. As I discussed more fully in my concurring opinion in Lane v. K-Mart Corp., 190 Ga. App. 113, 115-116 (378 SE2d 136) (1989), paragraph (a) compels the award of attorney fees only when a claim has merit neither in fact nor in law. As a result, notwithstanding the “any evidence” standard of review enunciated in Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987), when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law. In the case at bar, we effectively engaged in that analysis in our discussion in Division 2 of the merits of the underlying claim. Had we found the claim asserted by appellant constituted a “good faith attempt to establish a new theory of law” as described in OCGA § 9-15-14 (c), the award of attorney fees could not be sustained. Since I agree that the claim advanced below did not meet that standard, I concur in the judgment in Division 5.


author: Sognier, Judge.

text:
    A90A1296.
    SPRAYBERRY CROSSING PARTNERSHIP v. TULEY.
    (400 SE2d 334)
   Sognier, Judge.

Sprayberry Crossing Partnership brought suit against Richard Tuley seeking to recover rent and other amounts due under a lease agreement. Tuley brought a third party action against O’Hara’s, Inc., the party to whom Tuley had transferred all his interest in the lease premises. After trial on the main claim the jury returned a verdict in favor of Tuley, and Sprayberry Crossing Partnership appeals.

1. Appellant contends the trial court erred by denying its motion for a directed verdict made at the close of the evidence. Appellant first argues that the trial court should have construed the lease in issue to find as a matter of law that no new lease had to be executed in order to effect a renewal of the lease for the optional 5 year period under special stipulation F. Special stipulation F granted appellee, the authorized assignee of the original tenant, three options “to renew” the lease for an additional period of five years each with the terms and conditions remaining the same for each of the option periods. The basis for computing future rent increases was set forth in special stipulation B, the amended version of which provided that “the Base Rental for the third year, and each successive year, of this lease, and all extensions and renewals thereof, shall be increased” (emphasis supplied) based upon the formula in the special stipulation.

“The construction placed upon the lease, as evidenced by the conduct of the parties, is to be considered. [Cit.]” Chalkley v. Ward, 119 Ga. App. 227, 231 (166 SE2d 748) (1969). The lease in issue here was executed in 1978 for a five year term ending November 30, 1983. The lease required the tenant to give the lessor six months notice in writing of the tenant’s intention to exercise the option to renew the lease. After the original lessor assigned its interest to First Capital Income Properties, Ltd. (“First Capital”), the original tenant obtained First Capital’s written permission to assign its interest to appellee, effective June 16, 1983. It is thus apparent that at the time appellee became the substitute tenant under the lease, the time for exercising the renewal option had already passed. It is uncontroverted that the original lessee did not exercise the option. On July 1, 1983, First Capital received a typewritten letter from appellee, dated June 29, 1983, stating that “[t]his letter is to confirm our interest to exercise the option to continue the lease assigned to us by Tim Sullivan for the next five years.” Under appellee’s signature was handwritten “O’Tooley’s Irish Pub,” the name of the restaurant and pub appellee was operating on the leased premises. Appellee received no specific response from First Capital regarding his letter, but he received numerous other letters from it regarding, inter alia, his rental obligations, copies of the assignment agreement and original lease, and default notices. Appellee continued in the premises, and in December 1983 was notified that “[i]n accordance with your Lease your base rent is to be increased by 5%.” While the rental increase stated in the letter was consistent with special stipulation B as to future rent upon execution of an extension of the lease, it was inconsistent with paragraph 25 of the lease, which provided that if the tenant remained in possession of premises after expiration of the term with the lessor’s acquiescence and without any express agreement of parties, the tenant would be deemed “a tenant at will at rental rate in effect at end of lease.” It is uncontroverted that appellee paid the increased rent amount and that even after appellee assigned the lease (see Division 2, infra), his assignee paid the subsequent five percent increases in the base rent consistent with special stipulation B.

The conduct of the parties in the case at bar is indistinguishable from the parties in Chalkley, supra, and shows that a departure from the renewal provisions of the lease resulted in the lease being renewed without strict adherence. Watson v. Waffle House, 253 Ga. 671 (1) (324 SE2d 175) (1985). See also Ask Enterprises v. Johnson Model Bedding, 155 Ga. App. 294 (270 SE2d 709) (1980). No question of fact existed that appellee did not become a tenant at will but instead remained a tenant under the written lease, see Hicks v. Gentry, 104 Ga. App. 3, 5 (1) (120 SE2d 915) (1961); and therefore appellant was entitled to a directed verdict on this issue. See generally Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985).

Under Chalkley, supra at 231, appellee’s conduct in paying the increased rent amount pursuant to special stipulation B, rather than asserting his right to continue paying the old rent as would be his right under paragraph 25 as a tenant at will, and the lessor’s acceptance of the payments establishes that the parties intended to extend the lease and that the lessor waived the notice provision. Thus, it is unnecessary to address appellant’s argument that appellee’s letter of June 1983 in which appellee “confirm[ed] our interest to exercise the option to continue the lease assigned to us . . . for the next five years” constituted written notification of appellee’s intent to exercise the option in special stipulation F.

Finally, we agree with appellant that there is no question of fact that its conduct, as set forth above, demonstrated that it waived the timeliness of appellee’s notice to exercise the option. See id. Accordingly, it was entitled to a directed verdict on that issue as well. Anderson, supra.

2. We also agree with appellant that it was entitled to a directed verdict on the basis that it did not waive appellee’s liability under the lease. The lease specified that it was a usufruct and in paragraph 16 provided that “Tenant shall not, without the prior written consent of Landlord endorsed hereon, assign this lease or any interest hereunder, or sublet premises or any part thereof, or permit the use of premises by any party other than Tenant. Consent to any assignment or sublease shall not destroy this provision, and all later assignments or subleases shall be made likewise only on the prior written consent of Landlord. Assignee of Tenant, at option of Landlord, shall become directly liable to Landlord for all obligations of Tenant hereunder, but no sublease or assignment by Tenant shall relieve Tenant of any liability hereunder.” (Emphasis supplied.)

The evidence adduced at trial showed that in May 1984 appellee assigned “all of his leasehold interest in the property” to O’Hara’s, Inc. After appellee notified First Capital by telephone of the assignment of his interest in the premises to O’Hara’s, appellee received a letter from First Capital, dated May 25, 1984, in which First Capital reminded appellee of the assignment provisions in the lease, informed appellee that an assignment and assumption of lease would be “immediately required,” and requested appellee to provide First Capital with certain information about O’Hara’s. No such information was sent, and appellee continued to receive default notices on rent due and was notified in December 1984 of the next five percent increase in rent. It appears that the increased amount of rent was paid to First Capital by O’Hara’s. Beginning in August 1985, First Capital ceased communicating with appellee, instead dealing directly with O’Hara’s. Included in the letters from First Capital to O’Hara’s were bills for repairs for which First Capital informed O’Hara’s that it, as tenant, was responsible under paragraph 10 of the lease. In December 1985 First Capital assigned its interest as landlord in the leased premises to appellant. Notice of the assignment was sent to O’Hara’s but not to appellee. The notice informed O’Hara’s that First Capital “has assigned its interest as landlord under your lease to [appellant]. Commencing with your rental obligations due January 1, 1986 and thereafter you are required to make all payments of rent, and all other payments which you are to make to landlord under the lease, payable to [appellant]. From and after the date hereof, all notices, demands, requests or other instruments required in the lease to be given by tenant to landlord shall be sent to the landlord.” Appellant’s files on the monthly charges for the premises in question from November 1983 to May 1984 name O’Hara’s as the tenant. Default notices for January, June, and July 1986 rents, as well as certain other repair bills, were sent to O’Hara’s by appellant. O’Hara’s abandoned the premises sometime in August-September 1986. By letter dated October 24, 1986, appellant demanded past due rent from O’Hara’s and referenced appellant’s knowledge that O’Hara’s had partially sold its business to a Christopher Picon, who had defaulted in payment of the rent to appellant. In that letter appellant agreed to waive late charges “due to the unforeseen difficulties in the sale of your [O’Hara’s] business” upon timely payment of the overdue rent. When no payment was made for October or November, appellant wrote appellee at the end of November 1986 demanding rents due on the property.

We agree with appellant that this case is controlled by Southland &c. Corp. v. McIntosh, 137 Ga. App. 216 (223 SE2d 257) (1976) (physical precedent), see also Rotruck v. Grandma’s Biscuits, 243 Ga. 512, 514 (255 SE2d 36) (1979), and that appellant was entitled to a directed verdict on the assignment issue since under the lease provision in paragraph 16 appellee was not relieved from his contractual obligation to make the rental payments upon assignment of the lease to O’Hara’s. Step Ahead v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 806-807 (321 SE2d 115) (1984), cited by appellee, is distinguishable in that the lease therein contained no express provision whereby the landlord retained its rights against the old tenant. Accordingly, the trial court erred by denying appellant’s motion for directed verdict. See generally Anderson, supra.

Decided November 14, 1990

Rehearing denied December 10, 1990

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellant.

Awtrey & Parker, Dana L. Jacket, Germano & Kimmey, Don E. Germano, for appellee.

3. Having held that the trial court erred by denying appellant’s motion for directed verdict, it is not necessary to address appellant’s remaining enumerations regarding alleged errors in the charge to the jury.

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur.


author: Pope, Judge.

text:
    A90A1320.
    ALLEN v. BERGMAN et al.
    (400 SE2d 347)
   Pope, Judge.

Appellant Shirley Jean Allen, a teacher, sued the DeKalb County Board of Education and its members individually, as well as administrators Robert R. Freeman and Robert Tucker (hereinafter “defendants”), alleging that their actions in assigning her to a school more distant than the one to which she had been assigned previously violated the Georgia Equal Employment for the Handicapped Code (GEEHC) and in a second count, alleged that their actions violated her civil rights pursuant to 42 USC § 1981 and 42 USC § 1983. The trial court granted summary judgment to defendants on the count claiming violation of the GEEHC and dismissed as premature for failure to exhaust administrative remedies the section 1981 and section 1983 claims.

Before 1987, Allen worked in the DeKalb County schools intermittently as a teacher assistant and as a substitute teacher. Midway through the 1986-1987 academic year, Allen was offered and accepted a regular teaching position at Huntley Hills Elementary. Her contract for that position expired at the end of the school year. She signed a new contract for the 1987-88 school year with the DeKalb County system on June 10, 1987, without assignment to a specific school. Allen made DeKalb County authorities aware that driving was difficult for her because of a visual problem (intermittent double vision) caused by repair in 1972 of an aneurysm she had suffered. Huntley Hills Elementary was ideal for her because it was approximately a mile from her apartment. Due to declining enrollment at Huntley Hills, DeKalb authorities had no position there to give her. Ultimately, Allen was assigned to Clifton Elementary, which was some 20 miles from her apartment. She refused to report to the school and DeKalb County dismissed her. Allen appealed her termination pursuant to OCGA § 20-2-940. It was upheld by the local board and later by the State Board of Education. Allen then appealed that decision to the superior court. However, she has never received a ruling. Meanwhile, Allen instituted the present action.

1. Allen argues the trial court erred in dismissing her 42 USC § 1981 and 42 USC § 1983 claims on the basis that she had not exhausted her administrative remedies. The trial court relied upon Grayer v. Hagler, 181 Ga. App. 662 (353 SE2d 545) (1987). In so ruling, the trial court erred. In Felder v. Casey, 487 U. S. 131 (108 SC 2302, 101 LE2d 123) (1988), the Supreme Court held that states may no longer require litigants to exhaust administrative remedies before asserting claims pursuant to 42 USC § 1981 and 42 USC § 1983 in state courts. Id. at 146-150. “Given the evil at which the federal civil rights legislation was aimed, there is simply no reason to suppose that Congress meant to provide these individuals immediate access to the federal courts notwithstanding any provision of state law to the contrary, yet contemplated that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries.” (Citation and punctuation omitted.) Id. at 147. Thus, we must reverse the trial court’s order dismissing Allen’s claims pursuant to 42 USC § 1981 and 42 USC § 1983.

2. Allen also argues the trial court erred in granting defendants summary judgment on her claim that they violated her rights pursuant to the GEEHC. We find no error and affirm. Although Allen argues the defendants discriminated against her because of her visual problem, she has produced no evidence to show she was treated any differently from any able-bodied employee of defendants. See Dugger v. Delta Air Lines, 173 Ga. App. 16 (325 SE2d 394) (1984). The record shows Allen knew or should have known at the time she signed her contract for the 1987-88 school year that she would be assigned to a school other than Huntley Hills. The contract gave the school system the right to place her anywhere in the system based on the needs of the system. Defendants were under a federal court order requiring them to maintain a black/white teacher ratio consistent with the black/white student population in each school and this necessitated transfers between schools. In an effort to accommodate Allen, defendants offered her opportunities for placement at two schools closer to her apartment than the school at which she ultimately was placed, but Allen did not avail herself of these opportunities. At the hearing inquiring into the propriety of her termination for not reporting to her assigned school, Allen testified she was unwilling to move from her apartment to one closer to her new school and that she would not consider taking public transportation.

Decided November 26, 1990

Rehearing denied December 11, 1990

William R. Hurst, for appellant.

Matthew S. Coles, Gary Sams, Smith, Gambrell & Russell, David A. Handley, for appellees.

“The GEEHC makes it unlawful to discriminate against handicapped employees. It does not make it unlawful to fail to discriminate in favor of handicapped employees.” Kut-Kwick Corp. v. Johnson, 189 Ga. App. 500, 504 (376 SE2d 399) (1988). The trial court did not err in granting summary judgment to defendants on the GEEHC claim.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Beasley, J., concur.