text:
    A92A1820.
    HENDRIX v. PHILLIPS et al.
    (428 SE2d 91)
   Pope, Chief Judge.

Plaintiff Vickie F. Hendrix is a former employee of the Gwinnett County School System Department of Transportation. She voluntarily resigned in June 1989. One year later, in June 1990, plaintiff filed a complaint against defendant Zachery Keith Phillips III, a coworker, and Dr. Jack Staff, her supervisor, alleging she had been harmed by their intentional infliction of emotional distress.

Plaintiff’s complaint against defendant Phillips is based upon a series of comments and acts she alleges he committed, including showing her a drawing he made depicting fecal matter moving through a colon; showing her a hole in the crotch of his pants and asking her, in the presence of co-workers, if she would like to staple the hole closed; a lewd gesture referring to sexual activity he supposed she engaged in with her husband on a vacation trip; a verbal confrontation in a working meeting at which he cursed the plaintiff; and a series of complaints he filed against her with supervisor Dr. Staff. Plaintiff’s complaint against defendant Staff is based upon his treatment of her in his supervisory capacity, including repeated meetings with her to review complaints against her by co-workers and a meeting concerning a written job evaluation during which she alleges he threatened her with a poor evaluation but allowed a period of two weeks to improve her evaluation, after which he filed a written report in which he praised plaintiff for her abilities and gave her performance ratings which exceeded the ratings given her in previous evaluations made by other supervisors. Defendants moved for and were awarded summary judgment. Plaintiff appeals.

Í. In Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985), this court noted the four elements of the tort of intentional infliction of emotional distress set forth in the Restatement (Second) of Torts § 46, all four of which must be present in order for the claimant to recover: “ ‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe.’ ” Plaintiff argues the conduct she alleges defendants engaged in meets the requirement of being extreme and outrageous because it arose in the context of the employee-employer relationship. “The court has recognized that ‘the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist.’ Bridges v. Winn-Dixie Atlanta, 176 Ga. App. [at 230].” Coleman v. Housing Authority of Americus, 191 Ga. App. 166, 169 (381 SE2d 303) (1989). Relying upon our decision in Coleman, plaintiff argues the trial court erred in granting summary judgment to defendants.

In Coleman, the conduct complained of consisted of a pattern of explicit sexual harassment by plaintiff’s supervisor through conversations, innuendo and body language. Because of the cumulative effect of the conduct which occurred in the employment setting, we ruled the evidence created an issue for jury determination concerning plaintiff’s claim of intentional infliction of emotional distress against the defendant supervisor. In the case at hand, however, no pattern of sexual harassment was shown. Those isolated instances of alleged conduct which plaintiff claims were sexually offensive were simply instances of tasteless and rude social conduct which is not actionable. See Kornegay v. Mundy, 190 Ga. App. 433 (379 SE2d 14) (1989).

Regarding the instance in which defendant Phillips cursed the plaintiff in a business meeting, the record shows Phillips made a written apology and was formally reprimanded for his conduct by defendant Staff. These acts in mitigation of plaintiff’s distress contraindicate the necessary element of intent to inflict emotional distress. See Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (1) (340 SE2d 192) (1986).

Regarding defendant Staff’s repeated meetings with plaintiff, she admitted at deposition that the meetings were in response to complaints made against her by other employees. We reject plaintiff’s argument, in reliance upon Anderson v. Chatham, 190 Ga. App. 559, 566 (8) (379 SE2d 793) (1989), that defendant Staff’s alleged threat to give plaintiff an unfavorable evaluation creates an issue for jury determination. In Anderson, when the plaintiff’s employment was terminated she was threatened with retaliation if she attempted to make a claim for certain benefits allegedly due her. This court ruled that summary judgment was properly denied the defendant employer on the ground that the facts alleged stated a claim for wilful or reckless disregard for the plaintiff’s rights. In this case, the alleged conduct did not deprive plaintiff of any rights and, in fact, the record shows Staff ultimately gave plaintiff a more favorable review than she had previously received from other supervisors. The comments to which plaintiff objects consisted merely “of expressions of dissatisfaction with [plaintiff’s] job performance or suggestions that if [plaintiff] did not improve [her] job performance [she would receive a poor evaluation].” Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772 (324 SE2d 593) (1984) (in which we affirmed the grant of summary judgment to the employer defendant in a case alleging intentional infliction of emotional distress). In fact, a review of the record shows the case arises out of “ongoing frustration in the workplace, born of a personality conflict with [co-employees, which] does not give rise to an action for intentional infliction of emotional distress.” Kornegay v. Mundy, 190 Ga. App. at 435.

2. Plaintiff submitted the affidavits of her treating psychiatrist and psychologist attesting to their opinion that plaintiff suffered severe depression and anxiety which was caused primarily by the insulting treatment she received during her employment with the Gwinnett County School System. Defendants moved to strike the affidavits. Plaintiff argues the trial court erred in failing to rule on the sufficiency of the affidavits before ruling on defendants’ motions for summary judgment. It was not necessary for the trial court to address the issue of the sufficiency of plaintiffs expert witness affidavits. Regardless of the sufficiency of plaintiff’s evidence on the elements of severity of distress and causation, the evidence did not otherwise establish a prima facie case of intentional infliction of emotional distress. Consequently, the filing of the affidavits did not preclude the grant of summary judgment. See Bridges v. Winn-Dixie Atlanta, 176 Ga. App. at 231 (2).

Decided February 3, 1993

Reconsideration denied February 19, 1993

L. Thomas Cain, Jr., for appellant.

Arnall, Golden & Gregory, Karen B. Bragman, Frank N. White, Thompson & Sweeny, E. Victoria Sweeny, for appellees.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A92A1891.
    JONES v. FULTON COUNTY et al.
    (427 SE2d 802)
   Pope, Chief Judge.

Plaintiff William S. Jones was joint owner, with his ex-wife Linda Jones, of an undeveloped lot in Fulton County. Pursuant to the terms of the consent order entered in their divorce case in 1982, plaintiff acknowledged he was jointly liable on the mortgage note for the property and the parties agreed to sell the property and equally divide the proceeds. When the parties sought to sell the property, they learned it was within the path of the proposed extension of Georgia 400 highway and would be subject to condemnation for that purpose. The property was conveyed to defendant Fulton County by warranty deed dated December 20,1985, and the county later conveyed the property to the Georgia Department of Transportation which commenced construction of the highway. The deed to the county bore the notarized signature of Linda Jones and what purported to be the notarized signature of plaintiff. On March 20, 1991, plaintiff filed a complaint against the county and the Commissioner of the Georgia Department of Transportation (“Commissioner”) alleging his signature on the deed was forged and he received no compensation for the taking of the land. The complaint demanded compensation for plaintiff’s one-half interest in the property.

Defendant county filed a motion for summary judgment on the ground that plaintiff’s complaint is barred by OCGA § 36-11-1, which requires claims against counties to be presented within 12 months after they accrue. Defendant Commissioner filed a motion for summary judgment on the grounds that plaintiff’s claim is barred by laches and ratification of the allegedly fraudulent conveyance. Plaintiff also filed a motion for summary judgment and for attorney fees. The trial court granted summary judgment to both defendants and denied plaintiff’s motion. Plaintiff appeals.

1. The record shows plaintiff discovered the allegedly fraudulent conveyance of the property in late 1987. Thus, plaintiff’s claim against the county accrued more than 12 months before notice of the claim was presented to the county by the filing of the complaint. Relying upon Lynch v. Harris County, 188 Ga. 651 (4 SE2d 573) (1939), plaintiff argues his claim is not subject to the requirement of OCGA § 36-11-1. Lynch was an ejectment action to recover title to the land from the county. The Supreme Court rejected the county’s argument that the claim was barred by the notice statute because “[a]n assertion of ownership of land in possession of the county is not such a claim as must be presented within twelve months.” Id. at 654 (2). By contrast, the complaint in this case is not one for title to the property in question but states a claim for compensation for the county’s purchase of the property. The notice requirement of OCGA § 36-11-1 does apply to an action for compensation for the taking of land. Puckett v. Gwinnett County, 200 Ga. App. 53 (406 SE2d 561) (1991). Thus, summary judgment was properly granted to defendant county.

2. Summary judgment was properly granted to defendant Commissioner because the facts establish plaintiff’s claim is barred by laches and ratification. One of the considerations in determining whether a claim is barred by laches is whether the delay was such as “ ‘to justify a presumption that, if the plaintiff was ever possessed of a right, it has been abandoned or waived, or has been satisfied.’ [Cits.]” Hodges v. Libbey, 224 Ga. 509, 510 (162 SE2d 716) (1968). The record shows the divorce settlement between plaintiff and his ex-wife not only granted him the right to half the proceeds of the sale of the property but also imposed on him certain financial obligations such as child support payments. In 1989 Jones pursued a claim against his ex-wife for his portion of the proceeds of the sale by way of a motion for contempt in their divorce case. The presumption arises that his claim was satisfied by applying his portion of the proceeds of the sale to his obligations under the divorce settlement. Moreover, the presumption arises that his claim was satisfied by the benefits he reaped from the sale, such as satisfaction of the mortgage note and taxes due on the property. The acceptance of benefits from an allegedly unauthorized act creates a presumption of ratification. Hendrix v. First Bank of Savannah, 195 Ga. App. 510 (1) (394 SE2d 134) (1990) (in which we ruled that summary judgment was properly granted the bank which negotiated a forged check because the facts showed the plaintiff reaped benefits from the transaction and then remained silent for eight months after discovery of the forgery before pursuing the claim). Plaintiff’s claim against the Commissioner is barred by the fact that he benefited from the sale of the property and yet delayed in pursuing his claim for over three years after discovery of the alleged forgery.

3. Because defendants’ motions were meritorious, the trial court did not err in denying plaintiff’s motion for attorney fees for the assertion of groundless defenses pursuant tó OCGA § 9-15-14 (b).

Decided February 3, 1993

Reconsideration denied February 19, 1993

Murray & Erck, Kevin T. Moore, for Jones.

Linda M. Jones, pro se.

Dwyer & White, J. Matthew Dwyer, Jr., Carmen D. Smith, for DOT.

Weiner, Yancey & Dempsey, Beryl H. Weiner, for Fulton County.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1995.
    LEGG v. THE STATE.
    (428 SE2d 87)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of statutory rape, incest, sodomy, aggravated sodomy, and two counts of aggravated sexual battery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. After she had reported the crimes to the authorities, the victim telephoned appellant from the sheriff’s office. The ensuing conversation was taped, even though no warrant had been issued pursuant to OCGA § 16-11-64. At trial, the tape was introduced over appellant’s objection that it had been secured in violation of OCGA § 16-11-62. This evidentiary ruling is enumerated as error.

“Nothing in Code Section 16-11-62 shall prohibit the interception, recording, and divulging of a message sent by telephone ... in those instances wherein the message is initiated or instigated by a person and the message constitutes, the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto consents.” (Emphasis supplied.) OCGA § 16-11-66. Thus, “[t]he [Sjtate could not have recorded this conversation on its own without having first obtained either an investigative warrant pursuant to OCGA § 16-11-64 or a valid consent of a party to the conversation.” (Emphasis supplied.) Dobbins v. State, 262 Ga. 161, 162-163 (2a) (415 SE2d 168) (1992). Here, the victim consented to the taping of the conversation that she had initiated with appellant. Compare Dobbins v. State, supra at 162-163 (2a) (wherein only the father of the victim consented). Accordingly, “the recording and divulging of the [instant] telephone [conversation] was authorized by OCGA § 16-11-66, in that [the victim], who initiated the [conversation], knowingly acquiesced in the procedure. [Cit.]” Duren v. State, 177 Ga. App. 421, 422 (1) (339 SE2d 394) (1986). See also Goodwin v. State, 154 Ga. App. 46, 50 (1b) (267 SE2d 488) (1980). Contrary to appellant’s additional contentions, the conversation “may be considered in direct furtherance of such crimes as knowingly falsifying, concealing, or covering up a material fact in a matter ‘within the jurisdiction of any department or agency of state government . . .’ (OCGA § 26-10-20), and hindering the apprehension of a criminal (OCGA § 16-10-[50]). . . .” Peugh v. State, 175 Ga. App. 90, 91 (1) (332 SE2d 384) (1985). See also Ramsey v. State, 165 Ga. App. 854, 857 (3) (303 SE2d 32) (1983); Williams v. State, 142 Ga. App. 764, 768 (8, 10) (236 SE2d 893) (1977). It follows that the tape was not erroneously admitted into evidence.

2. Appellant moved for a directed verdict of acquittal on the statutory rape charge, urging the lack of any evidence to corroborate the victim’s testimony. The denial of this motion is enumerated as error.

“The statutory rape statute provides no conviction shall be had for this offense on the unsupported testimony of the child (OCGA § 16-6-3 (a)), but it is well settled that it is not necessary that the child be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt, but only that the corroborating evidence tend to establish his guilt and be of ‘ “such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.” ’ [Cit.]” (Emphasis in original.) Timmons v. State, 182 Ga. App. 556, 557 (356 SE2d 523) (1987). Although at one point in the tape, appellant had denied having “had sex with” the victim, the tape otherwise contains admissions by appellant of his commission of unspecified sexual offenses against the victim. Thus, when viewed in its entirety, the tape is sufficient corroboration of the victim’s testimony. Dye v. State, 205 Ga. App. 781 (423 SE2d 713) (1992); Timmons v. State, supra. “ ‘ “Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury. If there is any corroborating evidence, we will not go behind the jury and pass on its probative value.” (Cits.)’ [Cit.] . . . ‘ “ ‘It is only when the evidence demands a verdict of not guilty that it is error for the trial court to refuse a motion for a directed verdict of acquittal.’ ” (Cit.)’ [Cits.] The jury was presented with sufficient evidence from which it could find appellant guilty beyond a reasonable doubt. [Cit.]” Runion v. State, 180 Ga. App. 440 (1) (349 SE2d 288) (1986).

3. Contrary to appellant’s contention, corroboration of the victim’s testimony is not necessary to support the conviction for incest. “The absence of any corroborative evidence is not a ground for reversing appellant’s conviction. ‘A conviction for incest may be based upon the uncorroborated testimony of the prosecuting witness, if the testimony is sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt. (Cits.)’ [Cits.] After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial, proof of appellant’s guilt of the crime of incest beyond a reasonable doubt. [Cit.]” Hall v. State, 186 Ga. App. 830 (1) (368 SE2d 787) (1988). See also Richardson v. State, 256 Ga. 746, 748 (7) (353 SE2d 342) (1987).

Decided January 29, 1993

Reconsideration denied February 19, 1993

Richard T. Bridges, Russell T. Bridges, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assis tant District Attorney, for appellee.

4. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal as to the aggravated sodomy and sodomy charges.

As to these charges, “we find that a fatal variance exists between the allegata and the probata. The indictment avers that appellant committed aggravated sodomy [and sodomy] in one manner and in one manner only, that is, ‘[an act involving the sex organs of the accused and the mouth of the victim]. . . .’ At trial . . . the victim [did not indicate that appellant had done anything more than to attempt such an act]. Rather, the victim testified [to two acts involving the mouth of the accused and the sex organs of the victim]. . . . Accordingly, we find that there exists insufficient evidence . . . from which a rational trier of fact could conclude that appellant committed the offense[s] of aggravated sodomy [and sodomy] as averred.” (Emphasis in original.) Ross v. State, 195 Ga. App. 624-625 (1b) (394 SE2d 418) (1990). It follows that the trial court erred in denying appellant’s motion for directed verdict on the aggravated sodomy and sodomy charges.

5. Appellant enumerates as error the denial of his motion for directed verdict of acquittal as to the aggravated sexual battery charges. His contention is that there was no testimony that the victim’s sexual organ had been penetrated, as required by OCGA § 16-6-22.2 (b). A review of the record shows, however, there is such testimony. It follows that this enumeration is without merit. See Richie v. State, 183 Ga. App. 248 (1) (358 SE2d 648) (1987).

6. The judgments of conviction for aggravated sodomy and sodomy are reversed. Remaining judgments of conviction are affirmed.

Judgments affirmed in part and reversed in part. Pope, C. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A2078.
    INDEPENDENT LIFE & ACCIDENT INSURANCE COMPANY et al. v. COX.
    (427 SE2d 862)
   Cooper, Judge.

Appellants are appellee’s former employer and its workers’ compensation insurance carrier. We granted appellants’ application for discretionary appeal to consider whether the superior court erred in reversing the decision of the Workers’ Compensation Board that appellants were not liable to appellee for additional workers’ compensation benefits.

Appellee suffered a lower back injury in a work-related fall in 1988, resulting in surgery to remove a ruptured disk. In 1989, he was hospitalized with back pain as the result of a work-related truck accident. Appellee received workers’ compensation benefits for these two injuries and returned to work after each. In June and August 1990, he was again hospitalized with back pain and was diagnosed as suffering from central pain syndrome and emotional problems. Appellant employer fired appellee in October 1990 for continued absenteeism, and appellee was unable to secure other employment. Appellee then sought additional workers’ compensation benefits for his earlier work-related injuries under the theory that there had been a change of condition. See OCGA § 34-9-104 (a) and (b). The record contains testimony and documentary evidence from appellee’s orthopedic surgeon and his psychiatrist, as well as from appellee, his wife and his employer. Some evidence indicates that appellee’s current physical and psychological disabilities resulted from a gradual worsening of the condition appellee was left in by the earlier, compensable injuries, but other evidence suggests his current problems were brought on by specific incidents which were unrelated to his employment and occurred while appellee was working in his yard and around his home. The administrative law judge ruled that appellee had not met his burden of establishing a change of condition, and the full board adopted the decision of the ALJ as its own. The trial court reversed, holding that the board’s decision was based on erroneous legal theories because it (1) placed the burden of establishing a change of condition on appellee and (2) ignored the unrefuted testimony of appellee’s psychiatrist that appellee’s current psychological problems stem from appellee’s 1988 fall and resulting surgery.

1. Appellants first argue that the trial court erred in concluding that appellee did not bear the burden of showing a change of condition. We agree. The law is clear that “ ‘[i]f an employee has actually returned to work after having received compensation, and then alleges a further inability to work, then the burden of proof is upon that employee to show that he has undergone a change in condition.’ ” Cornell-Young v. Minter, 168 Ga. App. 325, 328 (1) (309 SE2d 159) (1983); see also Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978). While a claimant’s subsequent termination by his employer may constitute a change in condition warranting additional benefits, “the burden was on appellee to show that, after his termination for cause, ‘his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.’ [Cit.]” Ga. Power Co. v. Brown, 169 Ga. App. 45, 49 (2) (311 SE2d 236) (1983). The trial court distinguished this line of cases on the grounds that appellee returned to work with ongoing restrictions. However, even if we accept the trial court’s finding that appellee returned to work with ongoing restrictions — a finding which was not mandated by the record and which the board did not make — there is no legal support for the proposition that the burden disappears or shifts to the employer if the claimant’s return to work is with limitations. Indeed, in Bristol, the Supreme Court case which established the requirement that the claimant show his inability to secure employment elsewhere was caused by his earlier work-related injury, the claimant apparently returned to work with limitations. See 242 Ga. at 288. Accordingly, the board properly placed the burden of proof on appellee, and the trial court erred in reversing the board’s award on this ground.

2. Appellants’ contention that the testimony of appellee’s psychiatrist did not require a ruling for appellee as a matter of law is also valid. The psychiatrist testified that appellee’s psychological problems were caused by his earlier work-related fall and resulting surgery. Although the trial court accepted appellee’s assertion that this testimony was unrefuted, a review of the deposition of appellee’s orthopedic surgeon reveals evidence that appellee had mild emotional and psychological problems before the first work-related injury, that appellee seemed to be doing very well emotionally after his surgery, and that his emotional problems did not intensify and become problematic until after the yard work incident in June 1990. Because the psychiatrist’s testimony was not unrefuted, appellee’s reliance on Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980) is misplaced, and the board did not err in finding, contrary to the psychiatrist’s testimony, that appellee’s problems were not caused by work-related injuries.

In the absence of legal error, the trial court’s review of the board’s decision should have been based on the “any evidence” standard. Monticello Mfg. Co. v. Tillman, 166 Ga. App. 385 (304 SE2d 740) (1983). As there was evidence to support the board’s finding that appellee’s disability, if any, was not caused by the work-related injuries, the trial court erred in reversing the board’s decision and must itself be reversed.

Decided February 19, 1993.

Swift, Currie, McGhee & Hiers, Mark J. Goodman, Michael J. Hofrichter, for appellants.

Loftiss, Van Heiningen & Ward, Thomas J. Loftiss II, for appellee.

Judgment reversed. McMurray, P. J., and Blackburn, J., concur.


author: Beasley, Judge.

text:
    A92A2209.
    CROSSON et al. v. LANCASTER et al.
    (427 SE2d 864)
   Beasley, Judge.

Allen and Darlene Crosson sued Trust Company Bank of Carroll County and its loan officer, John Lancaster, for damages stemming from Lancaster’s action on behalf of the bank accelerating seven loans. Summary judgment was granted to the bank and Lancaster.

The Crossons, who are farmers, had a longstanding relationship with the bank. On January 5, 1990, Lancaster sent them a letter informing them that the bank was closing their checking account because it had been overdrawn by $5.60 for 66 days, and that because they had sold collateral “out of trust” the bank was requesting that they pay all outstanding balances on the loans, totaling $116,111.63, by the end of the month. The collateral referred to was certain hogs securing one loan in a common arrangement whereby sale of the hogs would provide the proceeds to pay off that loan.

The Crossons alleged in their complaint that after receiving the letter, they sold various animals and equipment quickly and at less than fair market value and borrowed money in order to pay off all the loans. The gravamen of their action is that the bank’s stated reason for accelerating their loans was pretextual, and that the bank’s actions were wrongful and taken in bad faith. Our courts have recognized such an action. Mayo v. Bank of Carroll County, 157 Ga. App. 148 (1) (276 SE2d 660) (1981).

In this appeal, the Crossons contend the trial court erroneously granted the bank’s motion for summary judgment because at least four genuine issues of material fact remain.

1. The first is whether the bank met the requirement of good faith imposed by OCGA § 11-1-203: “Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” This means that “ ‘what is not regulated by the contract should be done in such a way as to show good faith in the carrying out of what is expressed.’ [Cit.]” Fulton Nat. Bank v. Willis Denney Ford, 154 Ga. App. 846, 848-849 (269 SE2d 916) (1980). The bank’s action was covered by the contract, so OCGA § 11-1-203 is inapplicable. See id.

2. Second, even if we were to assume that an issue of fact existed regarding whether the bank had waived the Crossons’ technical default by its prior acceptance of late payments, see Baxter v. Ga. Fed. &c. Assn., 152 Ga. App. 753-754 (1) (264 SE2d 242) (1979), it is not a material issue of fact. The bank does not claim that its decision to accelerate was precipitated by a default in payment, but by occurrences leading the bank to deem itself insecure.

3. The Crossons contend that in addition to the bank’s obligations under the contract and those imposed by the U.C.C., it had a common-law duty to act with ordinary care before accelerating, and a material question of fact remains whether the bank breached that duty.

A common-law tort action based on negligence may sometimes lie even where the transaction is one governed by the U.C.C., because the U.C.C. does not purport to preempt the entire body of law affecting the rights and obligations of parties to a commercial transaction. First Ga. Bank v. Webster, 168 Ga. App. 307, 308-309 (1) (308 SE2d 579) (1983). However, the bank’s duty when it accelerates because of its insecurity, as permitted by the note, is expressly stated by the U.C.C. It may do so “only if [it] in good faith believes that the prospect of payment or performance is impaired.” OCGA § 11-1-208.

Compliance with the requirements of the statute is fulfillment of the duty owed. Permitting an action in negligence despite the bank’s showing that it met the statutory requirement by acting in good faith would, in this instance, “ ‘thwart the purposes of the Code[,]’ ” Webster, supra at 308 (1), by rendering this section meaningless.

4. The Crossons contend a fourth material issue of fact is whether the bank met the good faith requirement of OCGA § 11-1-208. All the notes in issue contained provisions entitling the holder to accelerate upon the happening of any circumstance leading it to deem itself insecure. OCGA § 11-1-208 provides that such a term “shall be construed to mean that [the holder] shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.” OCGA § 11-1-201 (19) defines “good faith” as “honesty in fact in the conduct or transaction concerned.”

On motion for summary judgment, the burden is on the movant to establish the absence of any material issue of fact. Barber v. Threlkeld Ford, 199 Ga. App. 787, 788 (406 SE2d 249) (1991). The material issue here “is not whether the loan was in fact insecure, but whether, in determining the loan insecure, the bank acted honestly, in good faith, and not arbitrarily or capriciously.” Ginn v. Citizens &c. Nat. Bank, 145 Ga. App. 175, 177 (1) (243 SE2d 528) (1978). Some of the notes expressly refer to “a reasonable belief’ of insecurity.

In support of its motion, the bank proffered the affidavit of Lancaster, showing that the Crossons’ financial position had worsened and that bank auditors had expressed concerns regarding the “significant degree of risk of non-performance . . . manifested” by the Crosson loans. Lancaster averred that after the Crossons had renewed a loan in December 1989, he came to believe that a significant number of hogs used as collateral for the loan had been sold “out of trust” and that when asked, Allen Crosson had informed him he did not know the whereabouts of the collateral or the proceeds. Lancaster also averred that the bank’s determination that it was insecure had been based on several factors: In addition to the Crossons’ worsening financial status and possible sale of collateral “out of trust,” they had exceeded their debt limit, had consistently failed to make loan payments on time, and had a negative balance in one of their checking accounts. Lancaster also averred that at all times he had acted in good faith in this matter.

In opposition to the motion for summary judgment, Crosson relied on the acceleration letter, pointing out that although Lancaster averred that the bank’s determination that it felt insecure had been based on several factors, it is undisputed that the acceleration letter clearly stated the action was being taken because of sale of hogs out of trust. In addition, Crosson proffered his own deposition testimony indicating that the bank’s loan officer who took charge of the loan renewal allowed him to reduce the number of hogs used as collateral because he had paid down significantly the amount of the note. The deposition testimony of Susan Patterson, the loan officer who wrote up the renewal, supports Crosson’s testimony on this issue. Crosson also disputed Lancaster’s account of the telephone call regarding the whereabouts of the proceeds of the sale of the hogs, testifying that Lancaster had not given him a chance to explain the reduced number of hogs, and disputing that he told Lancaster he did not know the whereabouts of the proceeds of the sale.

Apart from these conflicts in the evidence, tending to show that Lancaster was at least mistaken about an important factual predicate for the letter, the deposition of Jimmy Meigs, an officer of the bank and Lancaster’s superior, places Lancaster’s good faith in issue by suggesting that Lancaster acted without first checking the facts. Meigs testified that he would not have sent the letter; that even after the letter was sent the bank’s intention was merely to have the Crossons bring their payments current rather than calling the loans; that the Crossons had been “outstanding” customers; and that occasional late loan payments and checking account overdrafts were common with farming customers.

Decided February 19, 1993.

Perkins & Perkins, Clifford Perkins, for appellants.

Price & Pyles, Sammy D. Price, Kurt M. Thomas, for appellees.

Meigs also deposed that Lancaster came to him before the letter was sent and reported his belief that the hogs had been sold “out of trust,” and that he, as Lancaster’s superior, had told Lancaster that he “just thought we [the bank] should research it and check to see what the problem was if that were the case.” Meigs also testified that after the fact he had checked with Patterson, and had concluded that Crosson had given an adequate explanation for the reduced hog collateral.

“The party moving for summary judgment has the burden of establishing the non-existence of any genuine issue of fact, and all doubts must be resolved in favor of the non-moving party. [Cit.]” Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259 (411 SE2d 87) (1991). Viewing the evidence in this manner, it is apparent that the bank has not established that there is absent any evidence that it did not act in good faith. See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). Rather, the evidence conflicts in several important respects on the material issue of whether Lancaster’s actions in deeming the bank insecure and calling the loans may have been arbitrary and capricious, not founded on a “reasonable belief,” rather than taken in good faith as required by OCGA § 11-1-208. Under these circumstances, “ ‘[g]ood faith ... is always a question for the jury. Even though the party may swear he. acted in good faith, the jury may decide he acted in bad faith from consideration of facts and circumstances in the case.’ [Cit.]” Ginn, supra. Compare First Bank of Savannah v. Kilpatrick-Smith Constr. Co., 153 Ga. App. 112 (264 SE2d 576) (1980); Custom Panel v. Bank of Hampton, 143 Ga. App. 681 (239 SE2d 558) (1977). Because this material issue of fact exists, the trial court erroneously granted summary judgment to the bank and its officer Lancaster.

Judgment reversed. Carley, P. J., and Andrews, J., concur. Birdsong, P. J., disqualified.


text:
    A92A2273.
    WILLIAMS v. THE STATE.
    (427 SE2d 869)
    Decided February 19, 1993.

      Charles R. Sheppard, for appellant.

      Michael C. Eubanks, District Attorney, J. Wade Padgett, Richard E. Thomas, Assistant District Attorneys, for appellee.
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of burglary. He appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.

Appellant’s sole enumeration of error relates to the admission of evidence of his commission of a prior robbery. The contention on appeal is that the prior robbery was not sufficiently similar so as to authorize its admission as probative evidence of appellant’s identity as the perpetrator of the instant robbery. “If . . . the evidence is being presented to prove the identity of the perpetrator of the offense charged, a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant’s ‘criminal signature.’ ” (Emphasis in original.) Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989).

The merits of appellant’s enumeration of error cannot be reached. “The very first time that appellant has ever urged that the State failed to meet its evidentiary burden of showing that his prior conviction was for a sufficiently ‘similar’ crime is in the brief that he filed with this court in support of the instant appeal.” (Emphasis in original.) Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991). The only objection raised below was that the evidence was “prejudicial and inflammatory] to [appellant].” “This is nothing more than a general objection. It has been held many times that a general objection is too vague and indefinite to present any question for decision either by the trial court or by the appellate courts. [Cits.]” Mincey v. State, 124 Ga. App. 315 (1a) (183 SE2d 614) (1971). See also Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2415.
    SUMLIN v. THE STATE.
    (427 SE2d 868)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant urges the unconstitutionality of OCGA § 16-8-41 (a), the statute which defines the crime of armed robbery. Accordingly, the first issue for resolution is whether it is this court or the Supreme Court which has jurisdiction over the instant appeal.

A review of the record shows that an attack on the constitutionality of the statute was neither made nor ruled upon below. “It is well settled that the [Supreme] [C]ourt will not pass upon the constitutionality of a statute when the question has not been raised at the trial level. [Cit.]” Arp v. State, 249 Ga. 403 (1) (291 SE2d 495) (1982). Accordingly, jurisdiction is clearly in this court and the instant appeal need not be transferred to the Supreme Court.

2. The victim’s testimony authorized a finding of armed robbery. See Moody v. State, 258 Ga. 818, 819 (1) (375 SE2d 30) (1989); Hughes v. State, 185 Ga. App. 40 (363 SE2d 336) (1987). Compare Tate v. State, 191 Ga. App. 727 (2) (382 SE2d 688) (1989). However, the victim’s same testimony also authorized a finding of robbery by intimidation. OCGA § 16-8-41 (a) “unequivocally provides that robbery by intimidation is a lesser included offense in the offense of armed robbery, and it necessarily follows that evidence authorizing a conviction of robbery by the use of an offensive weapon would authorize a conviction of robbery by intimidation.” Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179) (1973). Accordingly, the trial court charged on robbery by intimidation as a lesser included offense. Relying upon Johnson v. State, 195 Ga. App. 56, 57 (1b) (392 SE2d 280) (1990), appellant requested an additional instruction, which was to the effect that the victim’s testimony would be sufficient to authorize a finding of intimidation. The trial court’s refusal to give this requested additional instruction is enumerated as error.

Johnson v. State, supra at 57 (1b), merely discusses the sufficiency of the evidence to authorize a conviction for robbery by intimidation. It does not purport to authorize any jury instruction in an armed robbery case. “It is well established that language which is appropriate when contained in an opinion by a reviewing court may be improper when embodied in a jury charge. [Cits.]” Lofton v. State, 157 Ga. App. 447, 448 (1) (278 SE2d 94) (1981). In the instant case, a charge to the effect that the victim’s testimony would be sufficient to authorize a finding of robbery by intimidation would certainly be argumentative and incomplete, since the victim’s same testimony was also sufficient to authorize a finding of armed robbery. “From the charge as a whole it was made clear to the jury that they were to consider all of the evidence. It was therefore not incumbent upon the trial judge, even after request, to specifically point out particular evidence in behalf of [appellant] which the jury should specially consider. ... ‘A request to charge the jury must be correct and even perfect; otherwise refusal to give it is not error. It must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.’ The imperfection inherent in the argumentative character of [appellant’s request], which [is] more adjusted to the exhortation of counsel than to the impartial clarity which should characterize the instructions of the court, is sufficient reason for [its] refusal.” Balark v. State, 81 Ga. App. 649, 653-654 (1c) (59 SE2d 524) (1950). It follows that there was no error in the trial court’s refusal to give the requested instruction.

Decided February 19, 1993.

Wade H. Everett, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Rebecca B. Tierce, Assistant District Attorneys, for appellee.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A92A1689.
    TILLMAN v. LOMAS & NETTLETON INSURANCE AGENCY CORPORATION et al.
    (428 SE2d 451)
   Andrews, Judge.

Tillman appeals the grant of summary judgment to defendants Lomas & Nettleton Insurance Agency Corporation, Anchor Mortgage Resources, Inc., Citicorp Homeowners, Inc., and Independence One Mortgage Corporation, as well as the dismissal with prejudice of her claim against Miller.

Tillman, acting pro se, filed a complaint seeking to quiet title, alleging fraud as a result of her 1985 purchase of Miller’s home. In the course of making that purchase, Tillman assumed Miller’s outstanding loan on the property and he gave her a second mortgage which he then assigned to Anchor Mortgage. The remaining defendants were then either assigned the original loan or participated in refinancing the property for Tillman. The basis of her claim of fraud was that she did not, as reflected on the face of the loan documents, receive cash in hand, but instead received the property. Tillman failed to respond to requests for admission, which made out the case of the defendants.

After a review of the record, we find that the trial court has fully and correctly addressed the issues in this case. Accordingly, her order is hereby adopted as the opinion of this court.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.

Decided January 14, 1993

Reconsideration denied February 22, 1993

Annette R. Tillman, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Teresa L. Perrotta, McCurdy & Candler, Donald C. Suessmith, Jr., for appellees.


author: Johnson, Judge.

text:
    A92A1882.
    SIMS et al. v. CITY OF ALPHARETTA et al.
    (428 SE2d 94)
   Johnson, Judge.

F. Edward and Imogene Sims own a parcel of land in the City of Alpharetta which is zoned office and institutional (O-I). On May 9, 1987, the Simses leased the property to Rite-Way Foundations, Inc., a company engaged in the business of pouring concrete foundations. Within days of taking possession of the property, the city notified Rite-Way that they were in violation of O-I zoning regulations, specifically with respect to outside storage of heavy equipment, use of unpaved areas for parking, as well as other infractions. On June 2, 1987, the city issued a citation to Rite-Way, and a letter was sent to the Simses notifying them of same.

On October 30, 1989, after numerous additional citations had been issued, the city filed a lawsuit against the Simses and Rite-Way to enjoin them from maintaining a nuisance on the property and violating the city’s zoning ordinances. The Simses and Rite-Way answered and asserted counterclaims alleging that the city had interfered with their business relationship by harassing them and demanding that various modifications be made to the property. In September 1990, Rite-Way broke its lease and vacated the premises. Several months later, the Simses added Marie Garrett, Director of Planning and Community Development for the city, as an additional defendant in the counterclaim.

The city and Garrett filed a motion to dismiss for failing to comply with ante litem requirements regarding the counterclaims. Simultaneously, they filed a motion for summary judgment on the counterclaims. The city’s main claim had been rendered moot when Rite-Way abandoned the premises. Both motions were granted by the trial court and the Simses appeal.

1. In their first enumeration of error, the Simses argue that the trial court erred in granting the motion to dismiss for failure to give ante litem notice prior to the filing of their counterclaims.

This court reversed the trial court’s dismissal of defendant’s counterclaim for failing to give the requisite ante litem notice in Hol brook v. City of Atlanta, 139 Ga. App. 510 (229 SE2d 21) (1976). “The ante litem notice to a municipality is required for claims ‘on account of injuries to person or property.’ Property rights in contracts being intangible in nature rather than tangible, the notice is not required since the city, as a party to the contract or negotiations leading up to the contract, was well aware of the conflicting claims, if any, arising out of the same. [Cits.]” Id. at 511. Neither the court in Holbrook, nor OCGA § 36-33-5 distinguishes between requirements for ante litem notices in main claims or counterclaims. The gravamen regarding the requirement of compliance with the ante litem statute in Holbrook, is whether the action arises in contract or in tort. See Camp v. Columbus, Ga., 252 Ga. 120, 122 (3) (311 SE2d 834) (1984).

Decided February 8, 1993

Reconsideration denied February 22, 1993.

James C. Watkins, Rolader & Rolader, Donald A. Rolader, for appellants.

Bovis, Kyle & Burch, Christina A. Craddock, Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Beth L. Singletary, for appellees.

The Simses acknowledge in their brief that the counterclaims “relate directly to conduct and activities of the city,” and include harassment and interference with the business relationship between the Simses and Rite-Way. These actions clearly do not arise out of contract, but are tortious in nature and as such are not exempt from the requirement of the ante litem requirements of OCGA § 36-33-5 whether raised in a main action or by way of counterclaim. The trial court did not err in finding that the ante litem notice requirements had not been met and dismissing the counterclaims.

2. The Simses’ second enumeration of error, asserting that the trial court erred in granting the city and Garrett’s motion for summary judgment, need not be reached in light of our holding in Division 1.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A2278.
    MOORE v. THE STATE.
    (427 SE2d 779)
   Beasley, Judge.

Appellant was convicted of aggravated assault (OCGA § 16-5-21), kidnapping (OCGA § 16-5-40), and rape (OCGA § 16-6-1). He challenges the admissibility of evidence of other rapes committed by him, the mode of proof of two of these crimes, and the trial court’s order that he disclose the identity of a defense witness.

The present crime

Moore abducted a stranger at gunpoint from a bus stop, took her to a secluded lot, and engaged in forcible sexual intercourse after first having difficulty obtaining an erection. Afterwards, he took her to her job, which had been her destination.

When the victim returned to her job, she reported the rape immediately. She was crying and in an hysterical state, and she was taken to the hospital. Appellant was subsequently identified through a nolo contendere plea form bearing his name and found by the police at the crime scene after being taken there by the victim. Initially, appellant told the police that he did not know the victim. However, at trial he sought to establish that he did know her; that she was a prostitute and a user of crack cocaine whom he had been with on prior occasions; that he had paid her to have sex on the day in question, but he did not pay her the agreed amount because the act of sexual intercourse had not been completed; and that she accused him of rape because of this. The State presented rebuttal evidence.

The other crimes

A former Atlanta police officer testified that on July 5, 1969, he investigated a rape complaint by Jennie Cooley. Although he did not recollect the case, he testified following examination of his police report. He answered affirmatively when asked whether he was willing to swear under oath to the contents of the report. He testified that he had talked with the victim at Grady Hospital at about 10:35 a.m., and she told him that at 9:45 a.m. she was at a bus stop when a man whom she did not know drove up and asked her if she wanted a ride. She accepted the ride but rather than take her where she wanted to go, he drove her to a secluded, wooded area. He brandished a gun, made her get out of the car and go into the woods, robbed and raped her, and then left her in the woods. She later identified appellant as the culprit. The State introduced a certified copy of appellant’s indictment, plea of guilty, and fifteen-year sentence (to serve ten years with five years suspended). The State presented evidence that Cooley has died.

An Atlanta police detective testified that on August 19, 1969, he investigated a rape complaint by Doris Thomas. Although he had no present recollection of the case, he also testified from his police report. He answered affirmatively when asked whether he was willing to swear under oath to the contents of the report. He testified that he had talked to the victim at about 10:15 a.m. concerning a rape which occurred at 9:00 a.m. that day. She stated that while she was waiting at a bus stop, a man drove up, pointed a gun at her, and ordered her to get into his car. He robbed her and took her to a secluded, wooded area where he raped her. Afterward, he brought her back to the bus stop. The State introduced a certified copy of appellant’s indictment, plea of guilty, and fifteen-year sentence (to serve ten years with five years suspended) for her rape. The State presented evidence that it had tried unsuccessfully to locate Thomas.

Linda Jordan testified that at approximately 7:00 p.m. on January 16, 1969, she was abducted at gunpoint by appellant as she was unlocking her car door in a downtown Atlanta parking lot. He rambled through her pocketbook and asked her where her money was. He instructed her to get down on the floorboard or he would blow her head off. He drove her to a parking ldt in a secluded area, told her to take her clothes off, and raped her. However, he was having trouble obtaining an erection. When she asked him how he was going to rape her if he could not get an erection, he slapped her and told her to shut up, at which point he expelled sperm all over her. The State introduced a certified copy of appellant’s indictment, plea of guilty, five-year sentence for kidnapping, and five-year sentence for rape.

Frances Thompson testified that in 1979 she worked in an office building in downtown Atlanta. She was accosted by appellant while she was in a rest room in the building. He had a gun which he put to her head. He told her not to scream or he would kill her. He asked her if she had any money, which she did not. He took her into a stall and told her to take her clothes off. Although he was having trouble maintaining an erection, he raped her. The State introduced a certified copy of appellant’s indictment, plea of guilty, and 15-year sentence.

1. Appellant contends that evidence of the 1969 Cooley and Thomas rapes was inadmissible because they were too remote, that evidence of the 1979 Thompson rape was inadmissible because it was dissimilar, and that evidence of all four of the other rapes was inadmissible because their prejudicial impact outweighed their probative value.

(a) Evidence of similar crimes is inadmissible except upon proof the defendant was the perpetrator of the independent crime, there is a sufficient similarity or connection between the independent crime and the crime charged so that proof of the former tends to prove the latter, and the evidence of the independent crime is offered not to raise an improper inference as to the accused’s character, but for some permissible purpose regarding an issue in the case. Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991); Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

This exception has been most liberally extended in cases involving sexual offenses, “ ‘for a reason peculiar to those crimes. .. .’” Dorsey v. State, 204 Ga. 345, 349 (2) (49 SE2d 886) (1948) (citing 1 Wharton’s Criminal Evidence, p. 170, § 42; and holding that evidence of other rapes committed by the defendant is admissible where there is a similarity of method or modus operandi, as where the defendant lies in wait at an hour when the streets are deserted until a lone female approaches and then forces her into an area behind a house or building, or where the rapist steals into a room at night and surprises the victim in bed, or where the attacker forces his victim into his car or forces himself into her car).

“[W]here forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent ‘proof of the one tends to establish the other.’ ‘There are exceptions to this (other crimes) rule, and these exceptions have been rather liberally extended in cases of sexual crimes.’ Hunt v. State, 233 Ga. 329, 330 (211 SE2d 288) [(1974) overruling] Larkins v. State, 230 Ga. 418 (197 SE2d 367) [(1973)]. . . Sudlow v. State, 140 Ga. App. 146, 147 (230 SE2d 106) (1976); see McNeal v. State, 228 Ga. 633, 637 (5) (187 SE2d 271) (1972) (victims accosted early in the morning at a bus stop, taken into the woods, and raped); Davis v. State, 158 Ga. App. 549, 553 (7) (281 SE2d 305) (1981).

Under the previously cited cases, the multiple similarities between the Cooley and Thomas rapes and the present rape met the requirement of similarity.

There were some similarities but also some differences between the Jordan rape and the present rape, but one rather distinctive feature of both was appellant’s inability to obtain an erection in order to engage in sexual intercourse, followed by his ejaculation on the victims’ bodies. There were few similarities between the Thompson rape and the present rape except for appellant’s difficulty in maintaining an erection. Since, however, evidence of the Cooley and Thomas rapes was admissible, it is highly probable that any error on the part of the trial court in admitting evidence of the Jordan and Thompson rapes did not contribute to the verdict. Jones v. State, 175 Ga. App. 132 (1) (332 SE2d 915) (1985).

(b) Appellant cites Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991), in support of his argument that evidence concerning the 1969 Cooley and Thomas rapes should have been excluded because of remoteness.

In Gilstrap, the Court held that a crime which took place 31 years in the past was too remote, while citing without disapproval Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985), and Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985), where lapses of 11 years and 19 years, respectively, did not prohibit the admission of evidence of similar transactions. The lapse in the present case is 22 years, so that time wise it is more akin to Cooper than Gilstrap. But the fact that defendant was incarcerated during many of the intervening years precluded opportunity to commit similar offenses and explained their remoteness so they were not legally irrelevant. See Anderson v. State, 183 Ga. App. 669, 671 (1) (359 SE2d 688) (1987). In such cases, the lapse of time goes to the weight and credibility of the evidence and not its admissibility. Cooper, supra, 173 Ga. App. 254-255 (1).

Furthermore, as argued by appellant, Gilstrap noted that the purpose of a statute of limitation (which under OCGA § 17-3-1 is seven years for rape) is to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time, and the Court held that a like rationale applies to the admission of evidence of similar transactions. In this case, unlike Gilstrap, appellant was prosecuted for and convicted of the similar crimes, so he already has had the opportunity to defend himself.

(c) The probative value of the other incidents is measured by the purpose for which they are offered, which in this case was to prove defendant’s state of mind, bent of mind, and intent so as to overcome the defense of consent. It was a critical issue because the only parties present were the defendant and the victim, and credibility of these two disparate witnesses was crucial. See Williams v. State, supra at 642. The court was authorized to conclude that this, particularly in light of the court’s limiting charge, outweighed the prejudicial impact.

2. Appellant contends that the trial court erred in admitting the police officers’ testimony concerning the Cooley and Thomas rapes, since this was inadmissible hearsay and violated appellant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Higgs v. State, 256 Ga. 606, 608 (351 SE2d 448) (1987), and Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905) (1992), consider hearsay and Confrontation-Clause issues concerning police officers who were allowed to testify concerning out-of-court statements made to them by witnesses.

In Higgs, a witness told a GBI investigator several hours after the defendant shot and killed the victim that she had seen the defendant do it. She later married the defendant and asserted her right not to testify against him. The investigator was allowed to testify as to the out-of-court statement of the unavailable witness.

The Court rejected the argument that the admission of this hearsay violated the defendant’s rights under the Confrontation Clause. The Court recognized that the United States Supreme Court resolves confrontation challenges based on the admission of hearsay testimony through a two-part test. First, in the usual case, including cases where prior cross-examination has occurred, the prosecution must either produce or demonstrate the unavailability of the hearsay declarant; this is a rule of necessity. Second, as recognized also in Jackson, supra at 586, once a witness is shown to be unavailable, the Confrontation Clause countenances only hearsay marked with “particularized guarantees of trustworthiness.” The Supreme Court held that the hearsay in Higgs passed this test. The trustworthiness of her statement could be found in the fact that it was made within hours of the killing in the course of an official investigation and had not been subsequently disavowed by her, among other factors.

In Jackson the defendant broke into a house and robbed, raped, and sodomized the victim. A neighbor told police that a man whom she knew as bearing the same nickname as the defendant had appeared at her house that night and left after she produced a gun. The neighbor died prior to trial, and the police officer testified as to her statement. This Court held that this testimony was admissible, following Higgs.

In this case, both Officers Hinshaw and Dorsey testified that they were the first law enforcement officers to interview the respective victims at medical facilities to which they had been taken within hours after the rapes, and the reports from which the officers testified concerned these initial interviews. By pleading guilty to these crimes, appellant waived his earlier opportunity to cross-examine the victims when they made the complaints against him. Although appellant challenged the admissibility of the officer’s testimony concerning these crimes, he admitted that he had pled guilty to these crimes and that he had in fact committed them, and he did not contradict the facts underlying his commission of them as testified to by the officers.

As in Higgs and Jackson, the trial court did not err in admitting the police officers’ testimony out of necessity under OCGA § 24-3-1 (b). The admission of this evidence did not violate his rights under the Confrontation Clause, since there were particularized guarantees of trustworthiness.

We need not resolve the State’s arguments that the officers’ testimony was admissible pursuant to OCGA § 24-3-3 as part of the res gestae and pursuant to OCGA § 24-9-69 as past recollection recorded. See Jackson, supra.

3. Appellant contends that the trial court erred in compelling defense counsel to identify a defense witness at the conclusion of an in-camera hearing on the rape-shield statute prior to the State’s commencement of its case-in-chief.

At the hearing, defense counsel stated that he would present three witnesses in support of appellant’s claim that the victim had been with him on prior occasions. The trial court directed counsel to disclose the identities of these witnesses, apparently because of crowded conditions at the Bibb County Law Enforcement Center and the fact that the witness might have been released. Counsel made the disclosures, although the identity of two of the witnesses had already been disclosed, as subpoenas had been issued compelling their attendance. Counsel subsequently entered an objection and moved the court to consider a mistrial, arguing that a criminal defendant is not required to disclose the identity of witnesses to the prosecution, and appellant was prejudiced by being required to do this in that it gave the State additional time to establish grounds to impeach the previously undisclosed witness (as through the NCIC computer). See Gerald v. State, 189 Ga. App. 155, 157 (5) (375 SE2d 134) (1988). The State impeached this witness through evidence that he had been convicted of six burglaries.

Decided January 7, 1993

Reconsideration denied February 22, 1993

Buford & Buford, Floyd M. Buford, Jr., for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Assistant District Attorney, for appellee.

It is within the discretion of the trial court to order production of a list of defense witnesses in order to enforce the rule of sequestration. Fugitt v. State, 254 Ga. 521, 522 (4) (330 SE2d 714) (1985); Gerald, supra. Appellant argues that since the witness was in custody, disclosure of his identity to enforce the sequestration rule was unnecessary. While this is true, the trial court cited other plausible reasons for ordering disclosure, and appellant did not object to this until after he made the disclosure. The trial court was not required to declare a mistrial upon his belated objection.

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2295.
    WILLIAMS v. THE STATE.
    (427 SE2d 787)
   Beasley, Judge.

Appellant was convicted of sexually molesting his girl friend’s six-year-old cousin. OCGA § 16-6-4 (a). This is the fourth appearance of this case in our appellate courts. Its history appears in Williams v. State, 200 Ga. App. 187 (408 SE2d 512) (1991). The issue now is whether the court erred in denying appellant’s motion for new trial, based solely on the alleged ineffectiveness of trial counsel under the Sixth Amendment to the United States Constitution.

The evidence underlying the conviction is as follows: The victim and her five-year-old brother were spending the night at the apartment of appellant’s girl friend. The children were put to bed on a pallet on the living room floor. Appellant’s girl friend testified that she and appellant had gone to sleep in the bedroom. She was awakened during the night when she heard the victim scream and her brother crying. She got out of bed to investigate and saw appellant in the bathroom. The children told her they were frightened, but neither one related any details to her.

The children’s mother picked them up the following day. That evening the victim told her mother that she had blood on her panties, and when questioned further, she related that appellant had poured oil on her bottom and attempted to insert an object into her rectum. Later that night the child told an examining physician that appellant had inserted his finger into her rectum. The physical examination revealed rectal lesions, lubricant in the perianal area and blood on the child’s underwear. The child related the same incident to an investigating officer.

Both the victim and her brother, who had witnessed the incident, testified to the act of molestation as charged in the indictment. The victim stated that appellant ran into the bathroom after her brother began crying. She did not tell appellant’s girl friend what had happened because she was frightened.

Appellant testified that he spent the night at his girl friend’s apartment. He awakened during the night to go to the bathroom and while there he heard the children crying. He denied the allegations of molestation.

Appellant contends that his counsel was constitutionally ineffective in that he failed to adequately investigate the case, failed to interview and subpoena certain potential alibi and character witnesses, failed to make evidentiary objections, failed to request certain jury instructions and waived any objection to the charge as given.

Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), sets forth the standard for determining whether trial counsel’s performance was so deficient as to deny a defendant effective assistance of counsel under the Sixth Amendment. One asserting such an error must make two affirmative showings: “that counsel’s representation fell below an objective standard of reasonableness,” 466 U. S. at 688, and that such deficiency prejudiced the defense. Id. at 687. “ ‘Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different [466 U. S. at 694].’ [Cit.]” Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).

Trial counsel testified at the hearing on the motion for new trial that he did not present an alibi defense because appellant testified he was present in his girl friend’s apartment on the night that the alleged molestation occurred.

Appellant’s character was attested to by his mother; other potential character witnesses were not called because they were either unavailable or counsel did not believe they would benefit the defense. Such were tactical decisions which “ ‘might be considered sound trial strategy.’ ” Strickland, 466 U. S. at 689.

Appellant further asserts that counsel was deficient in failing to request a jury instruction on good character, his “only defense.” However, “evidence of good character is not a substantive defense,” Edwards v. State, 255 Ga. 149, 150 (335 SE2d 869) (1985), and even if such a charge were requested, “the court was not bound to honor the request.” Williams v. State, 187 Ga. App. 355, 356 (2) (370 SE2d 210) (1988). Compare Hayes v. State, 261 Ga. 439, 443 (405 SE2d 660) (1991), holding that the court must charge on defendant’s sole defense, even without a request, if there is some evidence to support the charge.

The jury was instructed on the presumption of innocence, reasonable doubt, and extensively on the credibility of witnesses. Since the charge as a whole did not contain error, failure to preserve objection could not have been harmful.

Assuming arguendo that counsel should have objected to certain opinion testimony by the investigating officer regarding the victim’s veracity, this claim lacks sufficient prejudice under the second prong of Strickland. See Davenport v. State, 172 Ga. App. 848 (2) (325 SE2d 173) (1984). The evidence against appellant was not only sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), see Williams v. State, 198 Ga. App. 214 (1) (400 SE2d 638) (1990), it was overwhelming.

We cannot say that any claimed deficiencies in counsel’s performance prejudiced the defense to the extent that the outcome would have been different. Appellant failed to overcome the strong presumption that trial counsel performed effectively. See Ferrell v. State, 261 Ga. 115 (3) (401 SE2d 741) (1991). Accordingly, the trial court’s finding that appellant was not deprived of the effective assistance of counsel was not shown to be clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.

Decided January 13, 1993

Reconsideration denied February 22, 1993

Steven W. Reighard, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Patsy Y. Porter, Assistant District Attorneys, for appellee.


text:
    A92A2381.
    HUTCHISON v. DIVORCE & CUSTODY LAW CENTER OF ARLINE KERMAN & ASSOCIATES, P. C. et al.
    (427 SE2d 784)
   Beasley, Judge.

We granted an application for interlocutory appeal filed by plaintiff, Hutchison, from the trial court’s refusal to dismiss a counterclaim by defendants, Kerman and the professional corporation through which she practices law, seeking an OCGA § 9-15-14 award of litigation expenses and attorney fees. The question is whether such an award may be sought by counterclaim filed prior to the final disposition of the action.

Kerman represented Hutchison in a divorce action filed by Hutchison in which she sought alimony, child custody and support, and equitable division of property. In the complaint, Hutchison alleged that her husband was a retired Naval officer whose gross retirement pay exceeded $20,000 per annum, and that he was entitled to additional retirement benefits, all of which were subject to equitable division.

Hutchison filed this legal malpractice action against defendants, complaining of counsel’s failure to protect and enforce her right to direct payment of as much as one-half of her husband’s Navy retirement pay and other valuable benefits under the Uniform Services Former Spouse’s Protection Act. Hutchison alleges that the divorce decree, attached to the complaint as an exhibit, utterly failed to preserve, protect, and enforce her property rights under the Act.

In their counterclaim, defendants alleged that the complaint “lacks any justification in fact and is substantially frivolous, substantially groundless and/or substantially vexatious in that no investigation was conducted into the true facts and circumstances of defendants’ representation of the plaintiff. Even a cursory investigation . . . would have revealed the frivolous, groundless and vexatious nature of the claim . . . filed against these defendants.”

In her motion to dismiss the counterclaim, plaintiff argued that it was premature in that an OCGA § 9-15-14 request for attorney fees and litigation expenses must await the final disposition of the action, at which time it must be asserted by a post-judgment motion. As authority, plaintiff cited subsection (e): “Attorney’s fees and expenses under this Code section may be requested by motion within 45 days after the final disposition of the action.”

In a response to the motion to dismiss, defendants argued that this language is permissive and not mandatory; under it, a claim may not be asserted more than 45 days after the final disposition of the action; however, no limit is set for the earliest date for bringing forth a claim for attorney fees and litigation expenses. Defendants also sought such an award for expenses incurred in defending the motion to dismiss.

In Abrahamsen v. McDonald’s Corp., 197 Ga. App, 624, 625 (1) (398 SE2d 861) (1990), the trial court granted defendant’s motion for an OCGA § 9-15-14 award of attorney fees and litigation expenses, after defendant’s motion for summary judgment had been granted but before the adjudication of a counterclaim filed by the defendant. The award was reversed. It was held that, pursuant to OCGA § 9-15-14 (e), a claim for attorney fees and litigation expenses “must” be brought within 45 days after the final disposition of the underlying action. See Cobb County v. Sevani, 196 Ga. App. 247 (395 SE2d 572) (1990) (involving a condemnee’s timely post-judgment motion for an OCGA § 9-15-14 award of attorney fees); Hunter v. Schroeder, 186 Ga. App. 799 (368 SE2d 561) (1988) (involving legal malpractice defendants’ timely post-judgment motion for an OCGA § 9-15-14 award); compare In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991) (holding that the institution of a new proceeding wherein plaintiff seeks an OCGA § 9-15-14 award of attorney fees incurred in a prior proceeding is unauthorized, since such motion is the prevailing party’s final request in a concluded legal proceeding); Ramos v. Vourtsanis, 187 Ga. App. 69, 70 (369 SE2d 344) (1988) (holding that the post-judgment remedy provided by OCGA § 9-15-14 is only available to parties and does not embrace a witness’ claim for deposition fees).

Jones v. Bienert, 197 Ga. App. 554 (398 SE2d 830) (1990), held that the trial court erred in allowing the plaintiff to voluntarily dismiss his action against the defendant since the defendant had filed a counterclaim, part of which was purportedly under OCGA § 9-15-14, and the voluntary dismissal could only be allowed if defendant’s counterclaim could stand and be adjudicated independently. However, no question was raised as to whether a counterclaim was the correct procedural vehicle through which to assert such a claim.

Where a counterclaim which has not matured is asserted prior to the entry of final judgment in the underlying action, the correct disposition under general rules of civil procedure is to dismiss it without prejudice. See Metro Chrysler-Plymouth v. Pearce, 121 Ga. App. 835, 840 (2) (175 SE2d 910) (1970) (holding that a defendant’s counterclaim for malicious use of process was premature, in that there had not been a termination of the main action in defendant’s favor, and the trial court should have dismissed it without prejudice).

After OCGA § 9-15-14 was enacted but before its effective date, the Supreme Court, in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), merged the torts of malicious use and abuse of process, delineated a new remedy through incorporation of criteria contained in OCGA § 9-15-14, defined the new remedy as abusive litigation, and required a defendant’s claim for abusive litigation to be pleaded as a compulsory counterclaim. 256 Ga. at 95-96 (11-14). However, Yost held that after the statute’s effective date, OCGA § 9-15-14 provides the remedy for the recovery of attorney fees and litigation expenses for abusive conduct. Id. at 95 (9).

In 1989, the General Assembly enacted Article 5 of Chapter 7 of OCGA Title 51, OCGA § 51-7-80 et seq., and provided that no claim for abusive litigation other than as provided in Article 5 and OCGA § 9-15-14 shall be allowed. OCGA § 51-7-85. OCGA § 51-7-83 (a) authorizes the recovery of attorney fees and litigation expenses under Article 5. OCGA § 51-7-83 (b) requires utilization of the procedures provided in OCGA § 9-15-14 where, as here, the litigation is in a civil proceeding of a court of record and no damages other than costs and expenses of litigation and reasonable attorney fees are claimed. OCGA § 51-7-84 (b) provides: “An action or claim under this article requires the final termination of the proceeding in which the alleged abusive litigation occurred and must be brought within one year of the date of final termination.” In Williams v. Clark-Atlanta Univ., 200 Ga. App. 51, 52 (406 SE2d 559) (1991), we recognized that claims for litigation expenses and attorney fees under both OCGA § 9-15-14 and OCGA § 51-7-83 are premature and should not be entertained until the underlying litigation has concluded.

Federal Rule of Civil Procedure 11 provides for the imposition of sanctions, which may include expenses incurred in litigating a matter and attorney fees, under certain criteria including some of those contained in OCGA § 9-15-14 (b) and (c). Although it has been generally held that a party may not seek the imposition of sanctions under Rule 11 by counterclaim but rather must await the end of the litigation, Donaldson v. Clark, 786 F2d 1570, 1576 (5) (11th Cir. 1986), and Sound Video Unlimited v. Video Shack, 700 FSupp. 127, 149 (30) (S.D. N.Y. 1988), there is authority for imposing Rule 11 sanctions earlier where the grounds for such imposition manifest themselves at such time. See Ortho Pharmaceutical Corp. v. Sona Distrib., 117 FRD 170 (S.D. Fla. 1987); Bannon v. Joyce Beverages, 113 FRD 669 (N.D. Ill. 1987).

Two factors distinguish this case from federal Rule 11 and cases construing it. First, OCGA § 9-15-14 (e) expressly states the time frame within which such motion must be brought, whereas Rule 11 does not. Second, the merit of the defendants’ OCGA § 9-15-14 motion, attempted by counterclaim, is not determinable until the facts of the underlying action have been adjudicated.

Decided January 12, 1993

Reconsideration denied February 22, 1993

Michael N. Mantegna, for appellant.

Arline Kerman & Associates, P. C., Arline S. Kerman, Jeffrey A. Auerbach, Barksdale & Mobley, M. Scott Barksdale, for appellees.

Finally, we cannot avoid the fact that the plain language of that part of the statute relating to procedure, i.e., subsection (e), provides for a “motion” and makes no reference to a “counterclaim.” Subsection (b) also refers to “motion,” implying that the counterclaim vehicle is not contemplated. Subsection (e) also uses the term “within,” not “no later than” in referencing the time frame for the request. The word “may” means that the litigant is authorized to seek such an award after the case is concluded, when the basis for an award has matured. See generally Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1665.
    HIGGINBOTHAM v. THE STATE.
    (428 SE2d 592)
   Carley, Presiding Judge.

Appellant and a co-indictee were charged with robbery by sudden snatching. The co-indictee pled guilty and appellant was brought to trial before a jury. A guilty verdict was returned and appellant appeals from the judgment of conviction and sentence entered thereon by the trial court.

1. Appellant gave an inculpatory statement. A Jackson-Denno hearing was conducted and the trial court found that the statement was admissible. Although appellant enumerates this evidentiary ruling as error, the inculpatory statement was clearly admissible. “ ‘ “(T)he trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous.” (Cit.)’ [Cit.] The trial court, by its ruling that the statement was voluntarily made, accepted the facts as put forth by the State, and this finding is not clearly erroneous.” Dillman v. State, 201 Ga. App. 833, 835 (2) (412 SE2d 557) (1991) .

2. Appellant enumerates the general grounds. The record demonstrates that the victim positively identified the co-indictee as one of the two perpetrators. The co-indictee testified for the State and identified appellant as the other perpetrator. In his inculpatory statement, appellant admitted his participation in the robbery. Thus, the evidence was more than sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Pursuant to appellant’s motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the trial court held that a prima facie showing of racial discrimination had been made and ordered the State to give reasons for the employment of its peremptory strikes against black prospective jurors. The trial court accepted the State’s proffered reasons as neutral and non-racial and denied appellant’s Batson motion. Appellant enumerates this ruling as error.

The State had employed one of its peremptory strikes against a prospective juror who lived in the same general area as appellant and was of approximately the same age as he. Obviously, possible affinity between a prospective juror and the very defendant on trial can constitute a neutral and non-racial explanation for the employment of a peremptory strike. See Strozier v. Clark, 206 Ga. App. 85, 87 (4, 5) (424 SE2d 368) (1992) (civil Batson). Compare Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993) (suspected prejudice against State’s prosecuting witness based entirely upon extraneous criminal investigation); Randolph v. State, 203 Ga. App. 115 (3) (416 SE2d 117) (1992) . It was not required that the State prove that the prospective juror and appellant were personally acquainted. “A reasonable suspicion about a prospective juror’s impartiality that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike. This is such a case. . . . We cannot condemn the prosecutor’s reluctance to gamble on the significance of [the proximity of residence and nearness in age].” Hall v. State, 261 Ga. 778, 780 (2) (415 SE2d 158) (1991). “[A] prosecutor may strike from mistake, or from ignorance, or from idiosyncracy.” Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792) (1987). The fact that several black prospective jurors, who apparently neither lived in the same general area as appellant nor were of the same approximate age, did serve on the petit jury leads credence to the State’s assertion that its employment of a peremptory strike was neutral and non-racial. Compare Congdon v. State, supra. “The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.” Gamble v. State, supra at 327 (5). “The trial court’s findings are, of course, entitled to ‘great deference,’ [cit.], and will be affirmed unless clearly erroneous.” Gamble v. State, supra at 327 (5). The trial court’s finding that the employment of a peremptory strike against a black prospective juror who lived in the same general area as appellant and who was of the same approximate age was racially neutral is not clearly erroneous.

The State also used a peremptory strike against another black prospective juror because he was a pastor. Obviously, employment as a pastor is a racially-neutral factor and the State’s desire to secure jurors who are engaged in a less non-judgmental line of work is not illogical. The racial neutrality of this explanation is certainly not diminished by the fact that the State did not employ a peremptory strike against a white prospective juror who had previously served as a police chaplin. The law provides that a prosecuting attorney’s explanation, even if it is based upon mistake or ignorance or idiosyncracy, “may be sufficient to rebut a prima facie Batson showing ([cit.]), so long as it is not ‘ “ ‘whimsical or fanciful’ ” but is “neutral,” “related to the case to be tried,” and a “ ‘clear and reasonably specific,’ explanation of (the) ‘legitimate reasons’ for exercising the challenges.” (Cit.)’ [Cit.] In this case, there is no contention that anything in the record would show that the prospective juror was not [currently employed as a pastor]. Accordingly, it cannot be said that the explanation . . ., even if based upon mistake or ignorance [or idiosyncracy], was whimsical or fanciful. [Cit.]” (Emphasis in original.) Bess v. State, 187 Ga. App. 185, 187 (1) (369 SE2d 784) (1988). Giving the requisite “great deference” to the trial court’s finding, there was no error in denial of appellant’s Batson motion based upon the State’s use of a peremptory strike against a pastor.

4. Over objection, evidence as to appellant’s commission of another robbery by snatching was admitted into evidence.

The only connection that was shown to exist between the two crimes is that they both were robberies committed by appellant’s sudden snatching of property from a victim. They were not closely related in time, having occurred 18 months apart. They were not related as to locality, having occurred only within the same county. They were not related as to the similarity of property stolen. They were not related as to the modus operandi. In violation of Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), the State specified no purpose for which the “other crimes” evidence would have limited relevancy in the instant case. The trial court did charge the jury that the evidence had been admitted as potentially relevant to the limited issue of appellant’s identity as the perpetrator of the instant robbery. “If, [however], the evidence is being presented to prove the identity of the perpetrator of the offense charged, a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant’s ‘criminal signature.’ ” (Emphasis in original.) Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). Considering the lack of any substantial similarities whatsoever between the two robberies, the evidence did not tend to show that the instant robbery was a pattern crime and the handiwork of appellant. Compare Hayes v. State, 177 Ga. App. 889, 890 (2) (341 SE2d 709) (1986).

The trial court also charged that the evidence had been admitted as potentially relevant to the issue of appellant’s intent. This too was erroneous. “ ‘[W]hile other offenses shown by the evidence objected to were of the same sort as the one for which the defendant was on trial, this did not render the evidence admissible, for they were wholly independent, separate and distinct. (Cit.) There was absolutely no logical connection between them and the case on trial, as required . . . before such evidence would be admissible for the purpose of showing intent. (Cits.) . . . (C)riminal intent is an essential element in every crime where criminal negligence is not involved . . . and to hold . . . that evidence of other offenses is always admissible to show intent, whether or not there be any logical connection between them and the case on trial, would be to abolish the general rule, and to establish the exception as the general rule without any exception thereto.’ [Cit.]” Weems v. State, 204 Ga. App. 352, 354-355 (419 SE2d 346) (1992).

The evidence of appellant’s guilt was not so overwhelming, that we can hold that the error in the admission of the irrelevant “other crimes” evidence was harmless. Appellant had given an inculpatory statement, but he recanted at trial and urged that it was untrue. Although the co-indictee identified appellant as a participant in the robbery, appellant testified at trial that he had not been involved. Thus, the jury was required to decide between the credibility of the State’s inculpatory evidence and the credibility of appellant’s exculpatory testimony. It cannot be said with any degree of certainty that the erroneous admission of the “other crimes” evidence did not have any prejudicial effect on the jury’s determination as to appellant’s credibility and, consequently, on the jury’s determination as to his guilt. Accordingly, the judgment must be reversed and a new trial held, wherein the irrelevant and prejudicial “other crimes” evidence should not be admitted.

5. The trial court did not err in refusing to allow appellant to cross-examine the victim about his knowledge of another robbery which apparently remained unsolved. Pealor v. State, 165 Ga. App. 387, 389 (4) (299 SE2d 904) (1983). The occurrence of this unsolved robbery was no more exculpatory of appellant than the “other crimes” evidence discussed in Division 4 was inculpatory of his participation in the instant robbery. It “did not logically tend to prove or disprove either that [someone other than appellant] committed the [instant] crime or that appellant did not commit the [instant] crime.” McNeil v. State, 202 Ga. App. 900, 901 (415 SE2d 922) (1992).

Decided February 22, 1993.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.

6. Appellant’s remaining enumeration of error relates to circumstances not likely to recur at retrial and will not be addressed.

Judgment reversed. Pope, C. J., and Johnson, J., concur.