text:
    A97A2075, A97A2076.
    CULVER v. THE STATE (two cases).
    (496 SE2d 292)
   Johnson, Judge.

Rodney Culver was tried on multiple felony charges involving six separate incidents described in two separate indictments involving different victims. A jury found him guilty of the following crimes related to the first indictment: three counts of burglary, four counts of rape, five counts of aggravated assault, three counts of possession of a knife during the commission of a crime, four counts of armed robbery, two counts of wearing a mask, robbery by force, three counts of kidnapping, aggravated assault with intent to rape, criminal attempt to commit aggravated sodomy, hijacking a motor vehicle, possession of a firearm during the commission of a crime, kidnapping with bodily injury, and two counts of aggravated sodomy. The jury also found him guilty of the following crimes related to the second indictment: burglary, rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy. In these two appeals, which we consider together, Culver asserts 19 enumerations of error. For the reasons set forth below, we affirm his convictions.

On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence. See Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997). So construed, the evidence presented at trial shows the following facts, which for clarity describe the six separate incidents involved in chronological order.

On October 2, 1993, between 6:00 and 6:30 a.m., an intruder entered the victim’s room with a knife in his hand and woke her. The intruder, wearing a nylon mask, sliced the buttons off her shirt, kept the knife at her throat, and threatened to kill her. The victim’s description of her attacker matched Culver’s physical description. The victim pleaded for her children’s safety as the intruder raped her on the bed. The intruder then dragged her to the floor, raped her again, and made her “play with him.” The victim’s face was covered with a pillow or blanket as the intruder left. The intruder took approximately $600 from the victim’s purse. The victim identified a nylon hair cover found in Culver’s house as similar to the one the intruder wore. An expert testified that DNA analysis of semen from a towel found at the scene matched Culver and that the chance of finding another match was one in three billion.

On November 15, 1993, a second victim was working at a gas station convenience store. Culver had come into the store a few times before, but this time he came in shortly after 6:00 a.m. with a dark blue nylon stocking on his face. The victim’s description matched Culver’s physical characteristics. Culver grabbed her arm, twisted it behind her back, and forced her to give him money from the register. After taking the money, Culver dragged the victim across the floor, threw her into the stockroom, pinned her against the wall, and tried to pull her shorts down. The victim struggled with Culver, who punched her in the eye and knocked her unconscious. When she awoke, he was gone. The victim did not know her assailant’s name until she saw his picture on television eight months later. She informed the police that Culver was her assailant, picked his picture out in a photographic lineup, and identified him in court as her assailant. On January 18, 1994, a third victim took her child into a daycare center and returned to her unlocked vehicle at 6:34 a.m. As she drove away, someone in the back seat hit her seat and shoved a gun against the side of her face. Her assailant spoke in a deep, raspy voice and told her where to drive and park. He grabbed her, pulled her into the back seat, made her take off her clothes, then pushed her down and tried to place his penis into her rectum. He covered her head with a mattress pad which was in the cargo area. Then he entered her vagina against her will, wiped her vagina when he had finished the act, and pushed her to the floor of the vehicle. He then pushed her out of the vehicle and drove away. She managed to grab her coat from the vehicle, and she ran to a nearby house, screaming she had been raped. The victim’s description of her attacker matched Culver’s physical characteristics.

One witness, who worked four doors from the daycare center, identified Culver in court and in a photographic lineup as the individual he saw near the daycare center around 6:00 a.m. on the morning of the rape. According to the witness, Culver looked “weird and dangerous.” Another witness also identified Culver in court and in a photographic lineup as the individual she observed on several occasions near the daycare center a week before the rape. She testified that on one occasion, Culver had approached her car and frightened her.

Evidence of seminal fluid was found on a scarf found in the vehicle as well as on the floorboard of the vehicle. An expert testified that DNA analysis of sperm located on the scarf matched Culver and that the chance of finding another match was one in two billion. In addition, chances that semen recovered from the victim’s cervix belonged to someone other than Culver were one in six hundred thousand.

At 1:30 a.m. on July 30, 1994, the fourth victim was preparing to take a shower when she heard someone at her door. Although his face was covered, the victim’s description of her attacker matched Culver’s physical characteristics. He twisted her arm behind her back, forced her into another room and put a knife to her throat. The man ransacked her house and took coins, jewelry, including her wedding ring, and approximately $1,500 in cash. He then hit her in the face, rendering her unconscious. The victim testified she never had consensual sex with Culver, but his semen was found in her vagina.

The victim in this incident does not speak English well, and an interpreter on the scene informed the paramedics and the doctor who gathered the rape kit evidence that the victim indicated that she had been raped. She was treated for injuries to her arm. An expert testified that chances that semen recovered from the victim belonged to someone other than Culver were one in one billion.

On August 17, 1994, the fifth victim arrived at work at approximately 6:35 a.m., when a man caught the door behind her, grabbed her and held a knife to her. He grabbed her arm to control and move her, made her take off her clothes, and forced her to perform oral sex upon him. He then anally sodomized her for several minutes, then made her put his penis back in her mouth. Afterward, he put her on the floor and placed a smock over her head. The man performed oral sex on her briefly and forcibly raped her. He then stole her rings and money from her purse and left. The victim’s description of her assailant matched Culver’s physical characteristics. She picked out Culver from a photographic array and identified him in court as having an appearance similar to the person who raped her. She also identified a knife seized from Culver’s vehicle as very similar to the one he held to her. An expert testified that DNA analysis of sperm found on the carpet on which the victim was raped matched Culver and that the chance of finding another match was one in ten billion.

On April 24, 1994, the sixth victim was awakened at 2:08 a.m. to find a man walking down her hallway toward her room. There were lights on throughout the house, and she described a man matching Culver’s physical characteristics. She started screaming, and he told her to shut up and close her eyes. He had a deep voice. The man started choking her, then made her take her clothes off and covered her face. He touched her all over as she pleaded with him not to hurt her. He then raped her as she was on her back, made her perform oral sex on him, and raped her again from behind. After he ejaculated, he wrapped a gown around her head and forced her to walk around the house and give him money. The man then pushed her, kneed her in the back, choked her again, and left.

Sperm found on the bedspread where the victim was raped matched Culver, and an expert testified that the chances of finding another match was one in ten thousand. At the state’s request, an additional, possibly exculpatory, DNA test was conducted. However, this test also matched Culver, and evidence showed there is a one in one hundred thousand chance of this match occurring randomly.

The record shows that both a police detective and Culver himself testified as to Culver’s physical characteristics at the time of his arrest and at the time of the attacks. Culver’s work records indicated he was either late, not scheduled to work, or absent from work during time periods within which the six attacks occurred. In addition, all of the DNA evidence was reviewed by a defense expert, and none of it excluded Culver.

Culver presented alibi evidence at trial. Culver’s mother testified that she did not recall specific dates, but that Culver was at home during the April 24, 1994 attack and might have been home or at his girl friend’s during the July 30,1994 attack. His mother also testified that at the time of the August 17, 1994 rape, she was taking Culver to work, but again acknowledged that she did not specifically recall the date.

Culver’s girl friend testified that Culver was with her during the October 2, 1993 attack, and the November 15, 1993 attack. She was impeached with three certified copies of convictions against her as well as by evidence of her inconsistent testimony regarding dates and events.

Culver’s third and fourth alibi witnesses, the mother of his child and her father could not testify to any specific dates.

1. In his first enumeration of error, Culver contends the trial court erred in denying his motion to suppress evidence because there was a lack of probable cause. Culver argues all evidence obtained as a result of the searches of his home, automobile and person, including his blood, should have been suppressed. We do not agree.

“On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citations and punctuation omitted.) Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997). Moreover, when reviewing an affidavit for a search warrant, we look at the totality of the circumstances to determine if there was probable cause to issue the search warrant. Stewart v. State, 217 Ga. App. 45, 46 (456 SE2d 693) (1995).

A brief summary of the overwhelming evidence that was contained in the affidavit submitted in support of the search warrant is as follows: (1) DNA tests conducted on semen samples obtained from two victims determined that one assailant raped both women; (2) Culver’s characteristics, which matched each victim’s description of her assailant, were outlined in the warrant; (3) a witness identified Culver as the person she had seen two or three times in the vicinity of a daycare center where days later a woman was abducted and raped; (4) the victim of an assault at another southside daycare center identified Culver as the person most resembling her attacker; (5) during one assault, a purse stolen from the victim was found at 9 Royal Inn Court, and Culver resided at 12 Royal Inn Court; (6) Culver’s work records indicated he could have been absent during the relevant time periods; (7) the assaults under investigation all occurred in 1993 and 1994 on the southside of Savannah, almost exclusively occurred in the early morning hours, involved theft of personal items from the victim, use of a weapon, and concealment of identity; (8) charges returned in a separate indictment contained similar facts to those of the first indictment, alleging Culver raped the victim, concealed his identity, and robbed the victim. DNA tests revealed the frequency of alleles shared between Culver and semen recovered from this victim as one in ten thousand; (9) in 1985 Culver abducted a victim using a stolen car, drove her to another location, and raped her; (10) also in 1985, Culver assaulted another victim while she was sleeping, and one oil the victims of the rapes occurring in 1993 and 1994 was asleep in her bed when she was awakened by her assailant.

The information obtained from the victims, witnesses and investigators was sufficient for a determination by a reasonable person that a probability existed that Culver was the perpetrator. The totality of the circumstances and evidence collected was sufficient to find that there was a fair probability that a search of Culver’s person, home and car would result in evidence of a crime, and therefore probable cause existed for the issuance of the warrant. See Stewart, supra. Although Culver contends the affidavit contained some erroneous information concerning his car and work schedule and may have omitted additional information, there was ample evidence supporting the validity of the warrant even assuming Culver’s contentions are correct. Therefore, the trial court did not err in denying the motion to suppress.

2. Culver contends the trial court erred in denying his motion to sever the counts involving each of the different victims and should have given him separate trials for each victim. We find no merit in this assignment of error.

“Joinder is justified when the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. [Cits.]” Bickley, supra at 415 (3). The six separate incidents in these cases involved (1) attacks on the south-side of Savannah in a ten-month period; (2) attempts by the intruder to conceal his identity either by covering his face, the victim’s face, or both; (3) assaults occurring in the early morning hours between 1:45 a.m. and 6:35 a.m.; (4) opportunity according to work records for Culver to have committed the crimes; (5) stolen property; (6) the use of violence; and (7) attacks when the victim was alone in all but one case. In addition, in nearly all the cases, the perpetrator raped or attempted to rape the victim from behind and used a weapon, usually a gun. Based on these facts, the incidents “reached the level of a pattern and . . . therefore constituted parts of a single scheme or plan.” Id. The offenses were “ ‘so similar as to evidence a common plan or scheme and revealed an identical modus operandi.’ [Cit.] Each would accordingly have been admissible to prove the other, and the trial court did not err in refusing to grant a severance. [Cit.]” Jones v. State, 168 Ga. App. 652 (1) (310 SE2d 17) (1983).

3. In his third enumeration of error, Culver maintains the trial court erred by allowing evidence of similar crimes committed against three other women. We disagree.

“ ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.’ [Cit.]” Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991).

Similar transaction evidence showed that on March 17, 1985, a woman was abducted, beaten, and raped by Culver. Culver ran up behind his victim, hit her, threw her to the ground, and beat her until she was unconscious. Culver then placed her in a stolen taxi, drove until she managed to grab the wheel and crash the taxi, then raped her. After the rape, she ran from the car. When the cab was recovered, her purse and its contents were found strewn inside the cab. A certified copy of Culver’s conviction for rape, kidnapping, and theft by taking an automobile in connection with this incident was admitted into evidence. A police captain testified that Culver gave an oral and written statement admitting that he committed the rape.

Evidence of the second similar transaction showed that on March 30, 1985, Culver broke into an apartment intending to steal a radio and rape the woman who lived there if she came home alone. The woman did come home, but her conversation with a friend frightened Culver away. A certified copy of Culver’s conviction for criminal trespass was admitted into evidence. A police detective testified that Culver gave him a written statement that he had intended to rape the woman.

Evidence of the third incident offered as a similar transaction showed that around 6:30 p.m. on March 15, 1994, the owner of a daycare center was working late when she heard someone try to enter the building through the front door. She went to the door and saw a man walking away toward the office building next door. Fifteen minutes later, she heard a noise in the area behind the center, saw the same man through the window, and went to call the police. By then the man had entered the building, put on a nylon mask and gloves and taken out a gun. He struck the victim in the face with the gun with such force that she required 13 stitches and plastic surgery. He dragged her by the arm through the lobby. He then grabbed her shirt, but she was able to slip out of her shirt and run from the building. The victim’s description of her attacker matched Culver’s physical characteristics. She picked out Culver’s photograph in a photographic lineup and identified him in court. She also identified a nylon hair cover found in Culver’s house as the mask her attacker was wearing at the time of the attack.

The trial court did not err in finding a sufficient similarity or connection between the prior independent crimes and the offenses charged. The facts common to the offenses at issue and the similar transactions showed bent of mind and a common scheme or modus operandi. Moreover, the rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). “Thus, we cannot say that the trial court committed reversible error in implicitly finding that these facts provided a logical connection between the crimes which tended to prove the offense[s] charged rather than merely showing [Culver’s] bad character. [Cit.]” Id. While Culver argues that two of the similar transactions are too remote in time to be admissible, he offers no case citation in support of his argument, and we have previously held that the lapse of time goes to the weight and credibility of such testimony, not to its admissibility. Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993).

4. In his fourth enumeration of error, Culver asserts the trial court erred in not granting a separate trial on the offenses charged in the second indictment. For the reasons set forth in Division 2, this enumeration lacks merit.

5. The trial court did not err by refusing to merge the aggravated assault with a deadly weapon offense into the rape offense as to the October 2, 1993 incident described in Counts 1-6 of the first indictment. According to Culver, the knife was only used during the course of the rape and then was placed beside the victim and was not used any further. However, the record shows that Culver used the knife to awaken the victim and then used the knife to slice the buttons off her shirt, an act unnecessary to accomplish the rape. These acts were separate and distinct acts of force and intimidation outside that necessary to accomplish the rape. Thus, the jury was authorized to find Culver guilty of both rape and aggravated assault with a deadly weapon under the circumstances. See Taylor v. State, 202 Ga. App. 671 (415 SE2d 483) (1992); Taylor v. State, 177 Ga. App. 624, 628 (4) (340 SE2d 263) (1986).

6. There was sufficient evidence to support Culver’s conviction of armed robbery as to the October 2, 1993 incident described in Counts 1-6 of the first indictment. The victim in that incident testified that when Culver stood up following the rape and aggravated assault, “I had something over my face, and I really couldn’t see what he was doing, but he was there for a few minutes, and then he just left.” During this time, Culver told her, “just stay there, you white bitch, or I’ll kill you.” The victim noticed after the rape that she was missing $600 from her purse. There was sufficient evidence from which the jury could infer that Culver stole the $600 from the victim’s purse after the aggravated assault and rape.

In Georgia, the offense of armed robbery occurs when a person with intent to commit theft, “takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). “Immediate presence” has been held to extend “fairly far,” and robbery convictions are upheld even out of the physical presence of the victim. See Welch v. State, 235 Ga. 243, 245 (1) (219 SE2d 151) (1975). While Culver argues that he could not be found guilty of robbery because the victim did not know that she was being robbed, citing McNearney v. State, 210 Ga. App. 582 (436 SE2d 585) (1993), this case is distinguishable.

In McNearney, the assailant suddenly snatched the victim’s purse from her shopping cart while the victim was unloading her groceries. The victim was totally unaware of the occurrence. In this case, Culver had already removed a knife from the victim’s kitchen, which he used during his aggravated assault and rape, he then told her to stay on the bed or he would kill her, and he remained in her house “a few minutes” before leaving. Clearly, a jury could find that the victim was aware that her life and personal property were at risk while Culver terrorized her and remained in her home.

Moreover, while the force used against the victim in the aggravated assault and rape did not occur concomitantly with the taking of the $600, Culver’s acts and words may have created a reasonable apprehension on the part of the victim that an offensive weapon was being used during the robbery. See Ramey v. State, 206 Ga. App. 308, 309 (425 SE2d 385) (1992). Viewed in a light most favorable to support the verdict, the evidence was sufficient to authorize a rational trier of fact to find Culver guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

7. The trial court did not err by refusing to merge the aggravated assault with a deadly weapon offense into the armed robbery offense as to the October 2, 1993 incident described in Counts 1-6 of the first indictment. As in Division 6 above, the jury was authorized to find Culver guilty of both armed robbery and aggravated assault with a deadly weapon under the circumstances. Welch, supra; Ramey, supra.

8. The trial court did not err by refusing to merge the aggravated assault with a deadly weapon offense into the armed robbery offense or by refusing to merge the aggravated assault with a deadly weapon offense into the rape offense as to the January 18, 1994 incident described in Counts 12-18 of the first indictment. The record shows that Culver struck the back of the victim’s seat and shoved a gun against the side of her face as she drove her vehicle from the daycare center. While there was no further testimony regarding the gun, the jury was authorized to conclude that Culver maintained control of the gun throughout the ensuing events. See generally Hughes v. State, 185 Ga. App. 40 (363 SE2d 336) (1987). After assaulting the victim with the gun, Culver ordered her to drive to and stop at a certain location. He then physically pulled her into the back seat and raped her. Culver then shoved her out of the vehicle and drove away. Each offense, the aggravated assault with a deadly weapon, the rape, and the armed robbery, was separate and distinct with independently supporting facts. Consequently, the offenses did not merge. See Rhodes v. State, 221 Ga. App. 792, 795-796 (8) (470 SE2d 790) (1996).

9. The trial court did not err by refusing to merge the aggravated assault with a deadly weapon offense into the armed robbery offense as to the July 30, 1994 incident described in Counts 19-24 of the first indictment. The record shows that after Culver dragged the victim from room to room at knifepoint, taking items from her safe and purse, he dragged her to the living room and knocked her unconscious. A rational trier of fact could reasonably have concluded that Culver assaulted the victim with the knife after the robbery was completed as well as during the course of the robbery. See Holmes v. State, 205 Ga. App. 168, 169 (2) (421 SE2d 311) (1992).

10. The evidence was sufficient to support Culver’s conviction for kidnapping with bodily harm in the July 30,1994 incident referred to in Division 9 above. In Georgia, the offense of kidnapping occurs when an offender “abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Any physical injury, however slight, constitutes the requisite bodily harm within the meaning of the statute. Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358) (1989). The victim testified that Culver hurt her when he twisted her arm behind her back. In addition, a paramedic testified that when she arrived at the scene, she found the victim clutching her right hand, and she noted that the victim’s wrist was swollen and red.

11. The evidence was sufficient to support a conviction for armed robbery in the case involving the August 17, 1994 incident described in Counts 25-32 of the first indictment, and the trial court did not err by refusing to merge the aggravated assault with a deadly weapon offense into the armed robbery offense in these counts. Viewed in a light most favorable to support the verdict, the evidence shows that Culver attacked, raped and sodomized the victim at knifepoint, then left her on the floor with her head covered. Although she did not actually see Culver remove the money and jewelry from her purse after the rape, she heard Culver go through her wallet nearby and feared he would take her rings. In addition, while the victim could not see the knife as she heard Culver go through her wallet, the jury was authorized to conclude that Culver maintained control of the knife after the aggravated assault was completed and during the commission of the robbery. See Ramey, supra. The jury was also authorized to find that Culver’s acts created a reasonable apprehension on the victim’s part that an offensive weapon was being used, since she testified that she believed Culver was going to kill her after he took the money from her wallet.

As in Division 6 above, this evidence was sufficient for a rational trier of fact to find Culver guilty beyond a reasonable doubt of committing armed robbery upon the victim. Jackson, supra; Welch, supra; Ramey, supra. Furthermore, the jury was authorized to find Culver guilty of both armed robbery and aggravated assault with a deadly weapon under the circumstances, so the trial court did not err by refusing to merge the two offenses. Welch, supra; Ramey, supra.

12. The evidence was sufficient to support a conviction for kidnapping with bodily harm in the April 24, 1994 incident described in the second indictment. The record shows that after raping her twice and forcing her to commit oral sodomy, Culver wrapped the victim’s nightgown around her head and forced her to walk to another room with his hands around her shoulder and neck. He then took her back to the spare bedroom, “put his knee like on my back and had his hand like on my neck, and just pushed me down” before he left. The victim testified that these actions hurt her. She further testified that Culver choked her after raping and robbing her before he left the house. See Jackson, supra; Green, supra.

13. The trial court did not err by refusing to merge the aggravated assault with intent to rape offense and the aggravated assault by use of hands and fists offense as to the November 15, 1993 incident described in Counts 7-11 of the first indictment. The record shows that after assaulting and robbing the victim, Culver dragged her to the stockroom, closed the door, pinned her against the wall and attempted to pull her shorts down. According to the victim, she managed to open the door and get to her feet, at which point Culver struck her left eye with his right fist. When she regained consciousness, Culver had disappeared. Based on this evidence, a jury was authorized to find that more than one assault occurred. “The [aggravated assault with hands and fists] was a sequential reaction to the victim’s resistance to the charged sexual assault. [Cits.]” Watson v. State, 178 Ga. App. 778, 781 (2) (344 SE2d 667) (1986) (physical precedent only). Hence, the trial court’s failure to rule that the offenses merged was not error.

14. In his sixteenth enumeration of error, Culver contends the trial court erred in denying his motion for change of venue. This motion was based on the amount of publicity generated by the news media. After voir dire, the trial judge denied Culver’s motion, noting his surprise at the lack of juror knowledge of the offenses considering the news media coverage. .

The trial court has the discretion to grant a change of venue, and its determination will not be disturbed absent an abuse of discretion. Chancey v. State, 256 Ga. 415, 430 (5) (349 SE2d 717) (1986). “In a motion for a change of venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” (Citations and punctuation omitted.) Meeks v. State, 216 Ga. App. 630, 633 (5) (455 SE2d 350) (1995). Culver has failed to. demonstrate any prejudice. In fact, Culver’s attorney admitted after voir dire that he “thought there’d be a lot more publicity generated, there’d be more prejudice. But there wasn’t.” In addition, Culver admitted in his brief that “[although there had been extensive publicity about the case, most jurors seemed to be unaware of the case.” The trial court did not abuse its discretion in denying Culver’s motion for change of venue. See Jones v. State, 267 Ga. 592, 594 (1) (a) (481 SE2d 821) (1997).

15. Culver next asserts the state failed to prove venue as to the July 30, 1994 incident described in Counts 19-24 of the first indictment. According to Culver, the state only established that the offenses against the victim took place in Savannah, and not in any particular county. We disagree.

Viewing the evidence in a light most favorable to support the jury’s verdict, the record shows that the victim testified that she lived at 111 Greenbriar Drive, Savannah, Georgia. There is no dispute the offenses occurred at her residence. A police detective with the Savannah Police Department identified the victim’s residence on a map and testified that her residence was within Chatham County. This proof is sufficient to authorize the jury’s finding, beyond a reasonable doubt, that, these crimes occurred in Chatham County and that venue was proper there. See Jackson, supra; Hall v. State, 226 Ga. App. 298 (1) (485 SE2d 800) (1997).

Decided January 16, 1998

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, IanR. Heap, Jr., Assistant District Attorney, Thomas M. Cerbone, for appellee.

16. Culver contends the trial court erred in allowing the state to introduce evidence of sexually explicit magazines found during the search of his residence. According to Culver, the admission of these magazines wrongfully placed his character into evidence.

Culver was charged with numerous sex-related crimes, including five counts of rape, three counts of aggravated sodomy, criminal attempt to commit aggravated sodomy, and aggravated assault with intent to rape. Where a defendant charged with sex crimes seeks to exclude from evidence material offered for its sexually explicit nature, the issue “is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition. [Cits.]” (Emphasis in original.) Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992). Moreover, “[i]f there is any question about it, it is a well established rule of law that the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.” (Citations and punctuation omitted.) Id. at 217.

Culver acknowledges the above-stated principle of law, but argues that the prejudice outweighs the evidentiary value of the magazines. Culver, however, fails to specify how he was prejudiced. Accordingly, we cannot find that the trial court abused its discretion in allowing the state to introduce the sexually explicit magazines into evidence.

17. In his final enumeration of error, Culver contends the evidence was insufficient to convict him of all crimes charged in both indictments. Viewing the evidence in a light most favorable to support the verdict, we find the evidence was sufficient to authorize a rational trier of fact to find Culver guilty beyond a reasonable doubt of all charges against him. See Jackson, supra.

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A2209.
    BELCHER v. THE STATE.
    (496 SE2d 306)
   Johnson, Judge.

A jury found Ronald Belcher guilty of robbery by sudden snatching. Viewed in the light most favorable to support the verdict, the evidence shows that on December 11, 1996, a man snatched Mary Ray’s purse from her arm as she stood in front of the General Dollar Store in Adel, Georgia. A cashier inside the store called the police, and an officer arrived within one minute. Ray told the officer that a black male of medium build wearing a red shirt and tan shorts took her purse and ran south toward the railroad tracks. The officer radioed this information to another officer in the area. Ray’s purse contained $198, which included one $100 bill. The second officer found the purse and clothing matching the description of that worn by the robber in bushes beside the railroad tracks. A short time before this discovery, the second officer had seen Belcher coming around a house next to the tracks and just yards from where the purse and clothing were found. Belcher was picked up for questioning. Upon further investigation, one of the officers noticed that clothing appeared to be missing from the clothesline behind the house where Belcher was seen. The clothes on the line were still damp. When the officer met Belcher at the police station, he noticed that Belcher’s clothes were also damp. A search of Belcher’s person revealed $198, including one $100 bill. Shortly thereafter, Belcher gave a recorded statement admitting his guilt.

From the judgment of conviction entered upon the jury’s verdict, Belcher appeals. For the reasons set out below, we affirm.

1. In his first enumeration of error, Belcher contends the court erred in denying his oral motion to suppress the money evidence obtained from the search of his person. Belcher made this motion during trial.

OCGA § 17-5-30 (b) provides that a motion to suppress “shall be in writing and state facts showing that the search and seizure were unlawful.” Oral motions are not authorized. Jenkins v. State, 198 Ga. App. 843, 844 (403 SE2d 859) (1991). Moreover, this Court has held that a motion to suppress must be filed before trial to effectuate its purpose of avoiding the interruption of trial. Burch v. State, 213 Ga. App. 392, 393 (1) (444 SE2d 370) (1994). Because Belcher failed to timely interpose a proper motion to suppress, and because he did not offer at trial an explanation for this failure, he waived the right to challenge the admissibility of the evidence on this ground. Id.; Rucker v. State, 250 Ga. 371, 375 (11) (297 SE2d 481) (1982).

2. In his remaining enumerations of error, Belcher contends the trial court erred in admitting the following physical evidence: shoes, a shirt, a property receipt, a Miranda form, and the tape of his recorded statement. Belcher did not object when these items were identified and discussed or when the taped statement was played for the jury. Pretermitting whether the court erred in admitting these items, they are clearly cumulative of evidence which was already before the jury without objection. “Evidence is harmless where admissible evidence of the same fact is before the jury.” (Citations and punctuation omitted.) Arrington v. State, 224 Ga. App. 676, 680 (3) (b) (482 SE2d 400) (1997).

Decided January 16, 1998.

Jack W. Carter, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Andrews, Chief Judge.

text:
    A97A2399.
    In the Interest of C. D. C. et al., children.
    (495 SE2d 872)
   Andrews, Chief Judge.

The mother of C. D. C. and K. F. W. appeals from the order of the juvenile court terminating her parental rights. She raises two enumerations of error, claiming the juvenile court did not have subject matter jurisdiction over this issue and also that the Georgia Department of Human Resources, acting through the Cobb County Department of Family & Children Services (Department) failed to prove by clear and convincing evidence that her parental rights should be terminated. We disagree and affirm the judgment of the juvenile court.

1. First, the mother claims the juvenile court did not have subject matter jurisdiction over this case because the Petition for Termination is in connection with an adoption proceeding. She argues the Petition for Termination of Parental Rights asks for the rights to be terminated so the children can be awarded to the Georgia Department of Human Resources and placed for adoption. She claims the juvenile court is without jurisdiction because Chapter 8 of Title 19 of the Georgia Code provides the Superior Courts shall have exclusive jurisdiction to terminate parental rights in connection with adoption proceedings. OCGA § 19-8-2.

This argument fails because there is no adoption proceeding in progress; merely a termination of parental rights so that custody may be awarded to the Department and the children may be placed for adoption at some time in the future. Therefore, because this action was not brought “in connection with” a Petition for Adoption, jurisdiction was proper in the juvenile court. In the Interest of B. G. D., 224 Ga. App. 124, 125 (479 SE2d 439) (1996).

2. Next, the mother claims the Department did not prove by clear and convincing evidence that her parental rights should be terminated under OCGA § 15-11-81 (b). This Code section provides that the court may terminate the parental rights of a parent if the court determines parental misconduct or inability by finding that (1) the child is a deprived child as defined by OCGA § 15-11-2; (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) such cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i), (ii), (iii) and (iv). The Code defines a “deprived child” as “a child who: (A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .” OCGA § 15-11-2 (8) (A).

It is undisputed that C. D. C. and K. F. W. were and are deprived children. The mother did not appeal three prior juvenile court orders finding the children to be deprived. Further, she does not contend on appeal that the children do not meet the statutory definition of deprived children or that the evidence is not clear and convincing that, as far as her past history is concerned, her parental rights should be terminated.

Although the mother acknowledged at the hearing that she was unable to care for the children at this time, she argued there has been a “substantial improvement” in her “life and health.” She is currently enrolled in a program called “Bright Beginnings,” a two-year residential rehabilitation program for homeless, mentally ill adults and adults with a diagnosis of mental illness and substance abuse. In light of this, she argued her rights should not be terminated at this time. When the court asked her how much more time she thought she would need before she could care for her children, she at first replied she did not know. After repeated questioning, she said, “maybe a year.”

Accordingly, this Court must focus on the third criterion of OCGA § 15-11-81 (b) (4) (A) (iii), whether the deprivation is likely to continue. In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). Also, in cases of this type in which the parent is unable to care for the child due to some type of mental disability, the court must make the welfare of the children its paramount concern. In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523) (1982). In determining the best interest of the children, the court may consider the children’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175.

With these criteria in mind, we look first at the mother’s past conduct. The mother has a long history of mental illness and began seeing psychiatrists when she was eight or nine years old. She has been hospitalized several times for psychological problems and has been diagnosed with bipolar disorder. At the time of the hearing, she was taking several prescription drugs for these problems: lithium for mood swings, Navane for scattered thoughts, Benadryl for side effects, and Mellaril for depression.

The mother has problems with drug and alcohol abuse and also has a history of arrests and convictions including felony sale and possession of cocaine, felony interference with government property, destruction of property and forgery. The reason the children were placed in the Department’s custody in March 1991, was because both parents were in jail. At the time, K. F. W. was two and one-half years old and C. D. C. was six months old.

Since that time, the mother has not had custody of the children. In October 1991, the children were placed in the care of their paternal great-aunt. Then, in July 1992, the children were returned to the custody of the Department as the great-aunt was no longer able to take care of them. In November 1993, a Citizens Review Panel first recommended termination of parental rights because the parents had failed to make any reasonable progress toward the goal of reunification. In January 1994, the juvenile court continued its order of July 1992, and custody by the Department was continued for an additional two years. In July 1994, a Citizens Review Panel reviewed the case and again recommended termination of parental rights. The father did not contest this recommendation.

In looking at the mother’s relationship with the children, the evidence showed that since the Department assumed custody of the children in 1991, she contributed only $50 to the Department for the children’s support. The mother also testified that, despite receiving over $8,000 in 1993 from a movie deal, she did not spend any of that money on the children except to give the foster mother some money for shoes, money to get one of the girl’s ears pierced, and money for food and drinks when she visited with the children.

However, as the mother points out, she is trying to overcome her past problems. There was testimony at the hearing that the mother had been drug and alcohol-free for almost a year. Also, the guardian ad litem testified that the children were happy in their foster home. She stated that based on the permanency of a termination order, she did not feel it was in the children’s best interest to terminate the mother’s parental rights at this time.

Nevertheless, the court correctly determined that the children’s deprivation was likely to continue. The mother is staying at a place for homeless, mentally ill adults with substance abuse problems. She does not know when, if ever, she will be able to care for her children. Further, the children have not lived with their mother since 1991, when one of the children was two and one-half years old and the other six months.

Decided January 16, 1998.

Reagan W. Dean, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Dorothy L. Bjork, James K. Knight, Jr., for appellees.

Accordingly, there was clear and convincing evidence to support the court’s decision to terminate the mother’s parental rights. Taking into consideration the best interests of the children, the need for a stable home environment and the detrimental effects of prolonged foster care, the juvenile court did not err in its decision. In the Interest of J. M. C., supra; In the Interest of T. R. G., supra.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Eldridge, Judge.

text:
    A98A0135.
    STANCIL v. STATE OF GEORGIA.
    (495 SE2d 870)
   Eldridge, Judge.

After a hearing which demonstrated violations of the Georgia Controlled Substances Act, a Stephens County trial court issued an order forfeiting a tract of land containing appellant Bobby Lynn Stancil’s residence, pursuant to OCGA § 16-13-49 (d). The trial court also issued a certificate of immediate review, and we granted Stancil’s interlocutory appeal in order to review the trial court’s rulings. For the reasons below, we reverse.

The state filed a complaint against the appellant seeking forfeiture of three contiguous parcels of land owned by Stancil and identified in the complaint as “Tract One,” “Tract Two,” and “Tract Three,” with accompanying legal descriptions of each tract. A hearing was held on the matter. Only one witness took the stand, Investigator John Thompson, who testified that he made undercover narcotics buys from the appellant at his residence and later found, pursuant to a proper warrant, approximately 11 ounces of marijuana in appellant’s residence. Investigator Thompson could not testify as to which of the three tracts legally described in the complaint contained appellant’s residence: “[Defense:] I ask you to look at the petition which describes three pieces of property, Exhibit 1, Tract 1; Exhibit 2, Tract 2; and Exhibit 3, Tract 3, and ask you which of those three tracts is Mr. Stancil’s residence on? [Investigator:] I’m not an expert on reading tracts of land. . . . [Prosecutor:] Your Honor, I don’t know that his — that the officer is qualified to answer if the property is contained, you know, based on a legal description. . . . [Investigator:] Based on what you have here, you know, 15 feet by 20 feet south, it really makes no sense to me. . . .”

In addition, the trial court had before it the state’s verified complaint and the verified answers of both appellant and the Bank of Toccoa, which had filed an answer as a party in interest with regard to the in rem forfeiture of Tract Two. The Bank attached to its answer as “Exhibit A” a security deed for “Tract Two” named in the complaint, which deed was held by the Bank. The deed does not identify Tract Two as containing appellant’s residence; the Bank’s verified answer does not identify Tract Two as containing appellant’s residence; the state’s verified complaint does not identify any of the three tracts as containing appellant’s residence, and the appellant’s verified answer in response to the complaint contains no admission in judicio as to which of the three tracts contains his residence.

Based on testimony adduced at the hearing, the trial court entered an order finding that “One of the parcels contains his [appellant’s] personal residence; another a plumbing business; another is vacant.” The trial court determined that the vacant tract and the tract containing the plumbing business were not subject to forfeiture. However, the court ordered forfeiture of the tract containing Stancil’s residence after determining that “the residence is located where Stancil stored, used, and sold marijuana in violation of the Georgia Controlled Substances Act[.]” Thereafter in the same order, the trial court “ordered [the parties] to submit to the Court a legal description of the parcel on which the residence is located within fourteen days of the filing of this order. In the event that the parties cannot agree on the legal description of the residential parcel, the matter will be set down for a hearing on the single issue of the property description.” Held:

(a) The state must meet its burden of proving a prima facie case for forfeiture. This burden requires the state to establish by a preponderance of the evidence that the property sought to be forfeited falls into one of six categories of property declared to be contraband under OCGA § 16-13-49 (d). Hinton v. State of Ga., 224 Ga. App. 49 (479 SE2d 424) (1996). Although the trial court in this case determined that a parcel of land which contained appellant’s residence was subject to forfeiture, the state failed to prove which, if any, parcel of land described in the complaint contained appellant’s residence. Absent such evidentiary nexus between the parcel found to be subject to forfeiture and the parcels alleged to be subject to forfeiture, there is a failure with regard to the specificity of the legal description in the complaint and a failure of proof with regard to the state’s evidentiary burden, i.e., to prove by a preponderance of the evidence which one, if any, of the three parcels legally described in the state’s complaint and alleged as properly subject to forfeiture, was used, directly or indirectly, to facilitate a violation of the Georgia Controlled Substances Act. OCGA § 16-13-49 (d) (2). Accordingly, the evidence was insufficient to support the forfeiture, and the decision of the trial court must be reversed. Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (1994), overruled on other grounds in Rabern v. State of Ga., 221 Ga. App. 874 (473 SE2d 547) (1996).

Decided January 16, 1998.

Troy R. Millikan, for appellant.

(b) The trial court’s judgment specifically ordered the forfeiture of a parcel of land which contained appellant’s residence. However, because of the insufficiency of the evidence as noted above, the trial court did not know which parcel, if any, named in the complaint was the parcel that was subject to forfeiture. To correct this evidentiary defect, the trial court, in the same order of forfeiture, directed the appellant to voluntarily submit to the court evidence as to which tract described in the complaint contained his residence, or, in the alternative, the court ordered a second evidentiary hearing to be held on “the single issue of the property description” so that the state could produce evidence as to which tract described in the complaint contained appellant’s residence. This the trial court could not do. A trial court cannot order the forfeiture of a piece of property and thereafter receive evidence in order to determine which piece of property it has ordered forfeited. A showing as to which tract, if any, named in the complaint was subject to forfeiture was part of the state’s prima facie burden in proving the allegations of the complaint. Carr, supra. Thus, the trial court’s ruling with regard to receiving additional evidence was improper.

(c) In addition, at the conclusion of the state’s case the evidence was closed, and appellant made a motion to dismiss. OCGA § 9-11-41 (b) (2). The trial court took the motion “under consideration” and thereafter entered the order forfeiting appellant’s property. The trial court could not then re-open the evidence in the case, after the judgment, in order to determine which tract of land, if any, described in the complaint should be subject to forfeiture. Id. Such additional evidentiary showing, following the close of evidence and entry of judgment, would be improper and, in fact, ancillary to the previously entered judgment. Accordingly, the trial court’s order of forfeiture, as a final judgment on the merits of the case, should have been subject to direct appeal. OCGA § 5-6-34 (a) (1).

Judgment reversed.

McMurray, R J., and Blackburn, J., concur.

Michael H. Crawford, District Attorney, George N. Guest, Robert D. Cullifer, Assistant District Attorneys, for appellee.


text:
    A98A0179.
    A98A0180.
    A98A0181.
    UNITED STATES FIDELITY & GUARANTY COMPANY, INC. v. PAUL ASSOCIATES, INC. et al. MIC ENTERPRISE et al. v. PAUL ASSOCIATES, INC. et al. PAUL ASSOCIATES, INC. et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY, INC.
    (496 SE2d 283)
   Eldridge, Judge.

Defendants-appellees and cross-appellants Paul Associates, Inc. (“Paul”) is the insurance agency of Claude Paul II. MIC Enterprise is a company operated by Michael Basile, Cynthia Basile, and Michael Coleman, who are also defendants-appellees and cross-appellants. Coleman and Cynthia Basile went to Paul to obtain workers’ compensation insurance coverage. Paul submitted an application through the Georgia Workers’ Compensation Insurance Plan (the assigned risk pool) to obtain coverage. Under the plan, the National Council on Compensation-Insurance Southern Division (“NCCI”) made an assignment of the coverage to plaintiff-appellant and cross-appellee United States Fidelity & Guaranty Company, Inc. (“USF&G”) as carrier. Both USF&G and NCCI processed the application based upon the information contained in the application.

The policy of workers’ compensation insurance was issued by USF&G to MIC for one year. After the policy was issued, USF&G discovered that the application contained numerous, significant false statements. The very basis for qualification and assignment under the plan was that MIC had been rejected in writing by four separate workers’ compensation insurance carriers; however, MIC had never applied for nor been rejected previously for coverage.

USF&G sued all the defendants for negligent misrepresentations. Also, USF&G sued MIC and the principals, the Basiles and Coleman, for breach of contract and personal liability for MIC’s debts and liabilities.

Prior to trial, Paul filed a motion in limine to exclude any evidence which showed that Paul had previously filed similar applications for other insureds under the plan that did not qualify, but that he had represented did qualify. USF&G proffered evidence that, as he had done with MIC, Paul previously had submitted similar applications for two other insureds that had not been rejected by four carriers. USF&G argued that this was impeaching evidence which showed habit or custom of Paul in submitting erroneous applications. The trial court granted Paul’s motion in limine, keeping out this evidence.

At trial, Coleman directly contradicted Paul’s testimony by testifying that MIC had never applied for nor been rejected for workers’ compensation insurance and that neither he nor Cynthia Basile ever told Paul that MIC had been rejected.

While Paul testified in deposition testimony that he could not remember how he came up with the names of the insurance companies listed on the application as having previously rejected MIC’s application, at trial Paul testified that Coleman and Cynthia Basile had given him such information. On cross-examination, Paul testified that he “always” got the information by telephone for the application from the insured; that his usual practice and procedure in filling out insurance applications was to take the information regarding rejections from the applicants over the telephone; and that he got such information from MIC in this way and that he remembered this after the deposition. USF&G sought permission from the trial court to use the previously excluded similar cases to impeach Paul about how he “always” handled information regarding rejection; however, the trial court denied such permission.

The jury returned verdicts for MIC on the breach of contract claim; USF&G received a verdict of $133,363 for breach of contract against Coleman and the Basiles, to be apportioned equally; USF&G received a verdict for negligent misrepresentation against Coleman, the Basiles, and Claude Paul II, in the total amount of $24,300, apportioned as follows: $9,000 against Paul and $5,000 against each of the other individuals; defendants’ claim for contribution from third-party defendants was denied; USF&G received expenses of litigation of $15,000 against Coleman, and against each of the Basiles, totaling $45,000. Judgment was entered upon the verdict on October 10, 1996.

USF&G filed a motion for new trial and alternatively, a motion notwithstanding the verdict. The motion for new trial was denied, but the trial court granted the judgment n.o.v. against MIC on the breach of contract claim in the amount of $133,363 on February 4, 1997. The parties filed their respective notices of appeal or cross-appeal.

Case No. A98A0179

1. USF&G’s first and second enumerations of error involve the same issue: whether the trial court erred in not allowing it to either cross-examine Paul on prior similar applications for other insureds for purposes of impeachment or in granting the motion in limine to the same effect. This asserted error was harmless error.

To the extent that the trial court’s exclusion of the prior similar acts, either for impeachment or to prove habit, was error, such error was harmless, because USF&G received a verdict from the jury as to all defendants, and the evidence, if admissible, had relevance to the issue of liability and not of damages. “Inasmuch as appellant[’s] counsel’s question was only relevant to the question of liability, even if it [was] error to disallow it, the trial court’s ruling was harmless since a verdict was rendered for the appellant.” Gurly v. Hinson, 194 Ga. App. 673 (1) (391 SE2d 483) (1990); see also Robinson v. Murray, 198 Ga. 690 (2) (32 SE2d 496) (1944); American Alloy Steel v. Bearings & Drives, 188 Ga. App. 792 (374 SE2d 570) (1988); Maloy v. Dixon, 127 Ga. App. 151 (2) (193 SE2d 19) (1972).

2. The third enumeration of error is that “the trial court erred in failing to charge the jury that an insurer may rely on representations in an insurance application as true without conducting an independent investigation.” We do not agree.

USF&G’s charge was taken from a case decided on summary judgment to cancel a fire insurance policy for misrepresentations on the application. In addition to the portion in the requested charge, this Court held as follows: “Although [the insurer] relies on OCGA § 33-24-6 (c) to support this position, this Code section applies only to statements involving applications for life or accident and sickness insurance. See, e.g., Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 884 (2) (176 SE2d 103) (1970). However, OCGA § 33-24-7 (a) provides that statements in applications are ‘representations’ and subsection (b) states the circumstances under which an insurer can avoid the policy for ‘(m)isrepresentations, omissions, concealment of facts, and incorrect statements.’ [(Emphasis omitted.)] Thus it is implicit that an insurer is entitled to rely on statements of an applicant as true, without conducting an independent investigation. Of course, it assumes a risk, because recovery on policies issued on such representations is prevented only in the three instances in the statute. The burden on the insurer is to prove one of them.” (Emphasis supplied.) Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432 (2) (469 SE2d 199) (1995). This language of the charge has been taken out of context from a fire insurance contract coverage case and it is not an accurate and complete statement of the applicable law in this workers’ compensation insurance case for the collection of premiums in a breach of contract and negligent misrepresentation action. Any charge to such effect under these facts and circumstances should be based on OCGA § 34-9-133, which mandates coverage when an assignment is made under the assigned risk plan.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citation and punctuation omitted.) Heffernan v. Home Depot U.S.A., 226 Ga. App. 167, 168 (2) (486 SE2d 51) (1997); Lee v. Bartusek, 205 Ga. App. 551 (422 SE2d 570) (1992). “Although the language used by appellate courts in a decision may embody sound law, it is not always proper to employ such language in a charge to the jury. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746) [(1989)].” Continental Research Corp. v. Reeves, 204 Ga. App. 120, 126 (3) (419 SE2d 48) (1992). “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted; emphasis in original.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991); accord Continental, supra at 126-127. The trial court did not err in rejecting the request to charge.

3. The fourth enumeration of error is that the trial court erred “in charging the jury as to USF&G’s negligence by giving third party defendants’ requests to charge nos. 5 and 6, and the supplemental charge regarding OCGA § 51-12-33 relating to contributory and comparative negligence.” We do not agree.

USF&G brought this action against the defendants for negligent misrepresentation, not to avoid coverage, but to obtain damages flowing from the tort; therefore, tort defenses, either in avoidance or in mitigation, were applicable.

USF&G, by being licensed to sell workers’ compensation insurance, bound itself to accept a certain number of assigned risk coverage cases through the assigned risk plan. OCGA § 34-9-133. USF&G had no right to reject or question an assigned application that on its face met the criteria under the statute and was tendered to the insurer by the Workers’ Compensation Board or an authorized agency to administer the plan. Thus, under the facts and circumstances of this case, USF&G could not be negligent by accepting the mandatory assignment through the plan without making an investigation. The insurer was not acting under normal business practice where ordinary care applied, but under the mandates of law and insurance, as well as workers’ compensation regulations.

However, while USF&G may have had no duty to investigate the application prior to issuance of the policy under OCGA § 34-9-133, so that the negligent misrepresentation could not be avoided prior to the issuance of the policy, under OCGA § 33-24-7 USF&G assumed the risk of not being able to prove one of the three grounds to nullify a policy. Graphic Arts, supra.

Further, USF&G had a duty to protect itself from additional damages or injury once the negligent misrepresentation was made and should have been discovered and to seek to limit further damages that proximately flowed from such original wrongful acts. USF&G’s damages commenced upon the issuance of the policy through the negligent misrepresentations that the requirements of OCGA § 34-9-133 had been met. While OCGA § 51-12-11’s duty to mitigate damages after the negligence has occurred is neither contributory nor comparative negligence (which affirmative defenses go to avoidance and can bar or reduce any recovery), USF&G’s duty to mitigate damages is an affirmative defense, which must be pled and proved. See Blaxton v. Clemens, 202 Ga. App. 668, 669 (3) (415 SE2d 304) (1992); Malak v. First Nat. Bank of Atlanta, 195 Ga. App. 105, 107-108 (393 SE2d 267) (1990).

While neither the answers nor the pre-trial order set out any negligence affirmative defenses, at trial evidence was admitted that raised the affirmative defense of mitigation of damages. Thus, the evidence impliedly amended the pleadings as a matter of law. OCGA § 9-11-15 (b) provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. . . . [B]ut failure so to amend does not affect the result of the trial of these issues.” Thus, the affirmative defense of failure to mitigate the plaintiff’s damages was placed squarely before the jury and was erroneously denominated “contributory or comparative negligence,” instead of failure to mitigate damages. The defendants erroneously argued that such failures to mitigate damages were acts of contributory or comparative negligence and requested that the trial court so charge the jury, which it erroneously did.

However, since the jury returned substantial total damages for USF&G, the jury did not find contributory negligence, or such comparative negligence, as would totally bar recovery by USF&G. Therefore, such portion of the charge was harmless. The remainder of the charge instructed the jury that they should reduce any verdict for the plaintiff in proportion to any negligence by USF&G. The only evidence of USF&G’s negligence dealt with the failure to mitigate its damages. While the trial court should have charged the jury on mitigation of damages because the evidence supported such charge (instead of comparative negligence), the jury was instructed to reduce the damages by plaintiff’s negligence,' which did apply evidence of failure to mitigate. Based upon the verdict, the jury did, in fact, apply evidence of failure to mitigate; the jury, in fact, reduced the damages awarded based upon evidence of failure to mitigate, and reached the same result. The evidence before the jury justified the jury instruction on USF&G’s duty to mitigate its damages by the exercise of ordinary care. Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517 (402 SE2d 112) (1991); Hannula v. Ramey, 177 Ga. App. 512 (339 SE2d 735) (1986); Thico Plan, Inc. v. Ashkouti, 171 Ga. App. 536 (320 SE2d 604) (1984); Butler v. Ander son, 163 Ga. App. 547 (295 SE2d 216) (1982); Gleason v. Rhodes Center Pharmacy, 94 Ga. App. 439 (95 SE2d 293) (1956); Smith v. Hightower, 80 Ga. App. 293 (55 SE2d 872) (1949).

The trial court, believing that the evidence raised issues of comparative and contributory negligence, erroneously charged OCGA § 51-12-33, which authorizes a jury that it “may apportion its award of damages” and may disregard joint and several liability of joint tortfeasors when the plaintiff also was “to some degree responsible for the injury or damages claimed.” This Code section, from the plain language, applies only to plaintiff’s negligence in concurrently causing the injury or damages by contributory negligence, assumption of the risk, and comparative negligence; it does not apply to failure to mitigate damages or injury after the completion of the tort and injury or damages results. Union Camp Corp. v. Helmy, 258 Ga. 263, 267-268 (367 SE2d 796) (1988). The description of the content of the Act as originally enacted states: “to provide for a permissible apportionment of damages in certain causes of action among defendants according to fault of each defendant the plaintiff is to some degree responsible for the injury or damages claimed; to provide that in such cases damages shall not be joint liability or subject to contribution.” Ga. L. 1987, pp. 915, 920-921, § 8.

OCGA § 51-12-31 provides that where several tortfeasors are sued jointly, “the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.” Thus, the jury has the right to disregard joint and several liability and to return separate verdicts under circumstances other than those covered by OCGA § 51-12-31, when damage to a property interest, as opposed to a personal injury, is inflicted. See Union Camp Corp., supra at 268; Jones v. Hutchins, 131 Ga. App. 808 (207 SE2d 224) (1974); Craven v. Allen, 118 Ga. App. 462 (164 SE2d 358) (1968); Hightower v. Landrum, 109 Ga. App. 510, 515 (5) (a) (136 SE2d 425) (1964); Daniel v. Robinson, 96 Ga. App. 342 (100 SE2d 94) (1957); see also McCalla v. Shaw, 72 Ga. 458 (1884). Thus, the jury was authorized to return separate verdicts against joint tortfeasors, but not under OCGA § 51-12-33, because this was a damage to a property interest, as opposed to a personal injury to an individual. See OCGA § 51-12-31.

In sum, the trial court erred in giving the wrong charges. However, the effect of the charges was the same as if the correct charges on mitigation of damages and apportionment of damages between joint tortfeasors to a property interest had been given. Thus, based upon the facts and circumstances of this case, the error was harmless. Heath v. L. E. Schwartz & Son, Inc., 199 Ga. App. 452 (405 SE2d 290) (1991); Maloy v. Dixon, supra; Scarborough v. Martha White Mills of Ga., 115 Ga. App. 737, 738 (155 SE2d 818) (1967).

Case No. A98A0180

4. MIC, Coleman, and the Basiles’ enumerations of error one and two are controlled by the holding in Division 1 of this opinion.

5. The third enumeration of error is that the trial court erred in denying the motions for directed verdict brought on behalf of all of the individually named appellants. We do not agree.

“The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the ‘any evidence’ standard. CSX Transp. v. Barnett, 199 Ga. App. 611, 613 (2) (405 SE2d 506) (1991).” (Citations and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 170 (419 SE2d 69) (1992); see also Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466 (284 SE2d 263) (1981); Speir v. Williams, 146 Ga. App. 880 (247 SE2d 549) (1978). “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50. . . . [this Court] must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981).” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554) (1983); accord Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 94 (2) (406 SE2d 502) (1991). The evidence in this case, while in conflict, supported the verdict. The trial court did not abuse its discretion in denying the motion for directed verdict.

6. The fourth enumeration of error is that the trial court erred in entering its order, dated February 4, 1997, which denied appellants’ motion for new trial, motion to set aside judgment, and motion for judgment n.o.v.

(a) The trial court did not err in denying the motion for new trial. A corporate entity can be disregarded where the corporate arrangement was a sham; the corporation overextended its privileges, in the use of the corporate form to defeat justice or to evade statutory, contractual, or tort liability; or where the principals have otherwise abused and disregarded the corporate form. See Hickman v. Hyzer, 261 Ga. 38 (401 SE2d 738) (1991); Mark Six Realty Assoc. v. Drake, 219 Ga. App. 57 (463 SE2d 917) (1995); Derbyshire v. United Builders Supplies, 194 Ga. App. 840 (392 SE2d 37) (1990). The jury was also authorized to find that the individual defendants were liable for the pre-incorporation expenses of MIC, because they knew when they took out the insurance with USF&G that they had not taken any steps to incorporate and that the subsequently formed corporation was under-capitalized. “Every presumption is in favor of the validity of a verdict, and it should be construed so as to stand, if practicable. [Cit.]” Herman v. Boyer, 154 Ga. App. 617 (269 SE2d 107) (1980).

Further, the defendants waived any objection as to the form and consistency of the verdict by failing to object at trial. No objection was made prior to the verdict form being submitted to the jury or after the return of the verdict. Thus, the defendants waived any grounds as to inconsistency or other irregularities in the verdict. Ray v. Stinson, 254 Ga. 375 (329 SE2d 502) (1985); Knisely v. Gasser, 198 Ga. App. 795 (403 SE2d 85) (1991).

(b) “[T]he primary question for determination is whether the evidence introduced, with all reasonable deductions therefrom demanded a verdict for the defendants], as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. (Cits.) [T]he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts. Bryant v. Colvin, [supra at 444]. While it is erroneous for a court to direct a verdict in favor of a particular party to the cause where there is an issue of fact, when the proven facts, viewed from every possible legal point raised by the evidence, would sustain no finding other than the one directed, i.e., where there is no issue of fact, then it is error to refuse to direct an appropriate verdict. (Cits.) Further, in giving consideration to a motion for judgment notwithstanding the verdict, the court is concerned substantially with the same principles of law as are applicable upon consideration of the motion for directed verdict. The question for determination is whether or not the evidence demands a verdict for movant (cits.), and if there is no evidence to support the verdict returned, denial of the motion is error. City of Atlanta v. West, 160 Ga. App. 609 (2) (287 SE2d 558) (1981). The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Pendley v. Pendley, [supra]. Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (1) (329 SE2d 918), rev’d on other grounds at 254 Ga. 734, 735 (1) (334 SE2d 308) [(1985)].” (Punctuation omitted.) Lister v. Scriver, 216 Ga. App. 741, 744-745 (1) (456 SE2d 83) (1995). Thus, the trial court did not err.

7. Defendants’ fifth enumeration of error is that the trial court erred in granting judgment n.o.v. to USF&G against MIC. However, there was no conflict in the evidence that MIC breached its insurance contract with USF&G by not paying the premiums. See Division 6, supra.

Case No. A98A0181

8. Paul’s first enumeration of error is that the trial court erred in denying his motion for directed verdict and subsequent motion for judgment n.o.v. by failing to apply § 552B, Restatement, Torts 2d, in contravention of the Supreme Court’s holding in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983), which adopted a claim for negligent misrepresentation as articulated in § 552B, Restatement, Torts 2d. In addition, Paul contends that the trial court erred in denying the motion for directed verdict and judgment notwithstanding the verdict, because the wrong measure of damages was used and any negligent misrepresentation on the application was not the proximate cause of MIC’s failure to pay its premiums.

In Robert & Co., supra, the Supreme Court of Georgia adopted § 552, Restatement, Torts 2d; however, this does not mean that it automatically adopted other subparts, the commentary, or explanations, which is a synthesis of what the reporter and commissioners believed to be the majority of states’ position on such area of the law. The Supreme Court did not adopt § 552B, nor has this Court. In Advanced Drainage Systems v. Lowman, 210 Ga. App. 731 (437 SE2d 604) (1993), this Court held that negligent misrepresentation was an exception to the Economic Loss Rule in tort cases. However, pretermitting whether or not such measure of damages under § 552B should be adopted, that decision does not have to be reached in this case, because of the question of nominal damages presented by evidence in this case.

OCGA § 51-12-4 reads: “Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given.” “The law infers some damage from the invasion of a property right and if no evidence is given of any particular amount of loss, declares the right by awarding what it terms nominal damages. Williams v. Harris, 207 Ga. 576 (2) (63 SE2d 386) [(1951)]; Weimer v. Cauble, 214 Ga. 634, 636 (106 SE2d 781) [(1959)].” Ga. Power Co. v. Womble, 150 Ga. App. 28, 32 (3) (256 SE2d 640) (1979); see also Batson v. Higginbothem, 7 Ga. App. 835 (68 SE 455) (1910). “[N]ominal damages are always allowed for any tortious invasion of a property right, though no actual damage results therefrom. [Cit.]” Williams v. Harris, supra at 579. Fraud or breach of a legal duty may give rise to nominal damages; “[e]ven if [plaintiff] suffered only nominal damages by them, the question of damages is for the jury.” Holmes v. Drucker, 201 Ga. App. 687, 689 (2) (411 SE2d 728) (1991); see also Peters v. Hyatt Legal Svcs., 211 Ga. App. 587, 590 (1) (440 SE2d 222) (1993). Nominal damages are not limited to a small amount; “[a] plaintiff may recover nominal damages not only where his actual damages are minute, but also where he has not proved his actual damages by a preponderance of the evidence to the satisfaction of the jury.” Miller & Meier & Assoc. v. Diedrich, supra at 254. If the award of nominal damages is deemed excessive, then the remedy is a motion for new trial based upon such issue. Id. at 255; see also MTW Inv. Co. v. Alcovy Properties, 228 Ga. App. 206 (491 SE2d 460) (1997); Caswell v. Jordan, 184 Ga. App. 755, 759 (4) (362 SE2d 769) (1987); Tilley v. Page, 181 Ga. App. 98, 99 (1) (351 SE2d 464) (1986). Thus, plaintiff was entitled to recover damages other than under § 552B, Restatement, Torts 2d. The trial court did not err in denying the motions.

Decided January 16, 1998

9. Paul’s second enumeration of error is that the trial court erred in denying his motions for directed verdict and j.n.o.v.

The standards for granting and denying directed verdicts and j.n.o.v. are set forth in Division 6, supra, and are applicable here as well. The evidence was in conflict.

Moreover, generally proximate cause is a jury issue except in plain, clear, and palpable cases. McDonald v. Coca-Cola Enterprises, 220 Ga. App. 567, 568 (469 SE2d 805) (1996); Keith v. Beard, 219 Ga. App. 190, 193 (464 SE2d 633) (1995). It was foreseeable that, if the policy was issued to a financially risky business that was under-capitalized from the beginning, then there was a high probability that MIC would default on payment of the premium. Paul knew that the individual defendants had financial problems coming up with the down payment on the premium, because they told him that they did not have the money for the initial payment of $15,000. Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996).

The failure of MIC to perform its contract obligations by paying the premium was a breach of contract and not a tort; therefore, such breach of contract could not act as a supervening act of negligence so as to constitute the proximate cause of USF&G’s damages. See Hudson v. Venture Indus., 147 Ga. App. 31 (248 SE2d 9) (1978), aff’d 243 Ga. 116 (252 SE2d 606) (1979). Furthermore, Paul could reasonably foresee the breach by MIC from his actual prior knowledge of its financial condition; thus, the breach could not be a supervening cause. Smith v. Commercial Transp., 220 Ga. App. 866, 867 (470 SE2d 446) (1996). Thus, the trial court did not err in denying Paul’s motions.

Judgments affirmed.

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

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, John O. Sullivan, for United States Fidelity & Guaranty Company.

Todd K. Maziar, for MIC Enterprise.

Lokey & Smith, Malcolm Smith, Jon W. Burton, for Paul Associates, Inc.


text:
    A97A1921.
    THE STATE v. ARCHIE.
    (495 SE2d 581)
   Johnson, Judge.

Freddie Archie was indicted on charges of malice murder and aggravated assault. Sua sponte, the trial judge instructed the jury on the elements of voluntary manslaughter as a lesser included offense of the malice murder. After more than seven hours of deliberations, the jury reported that it was deadlocked. The trial judge declared a mistrial. Before the jury was excused, an unreported conference was held at the bench, after which the judge asked the foreperson if a verdict had been reached as to the malice murder count. The foreperson reported that Archie had been found not guilty of that charge. That verdict was not written on the indictment. Prior to retrial, Archie filed a plea of double jeopardy, contending that his acquittal on the malice murder charge barred retrial for voluntary manslaughter. The trial court agreed, and entered an order allowing retrial only on the aggravated assault charge. We granted the state’s application for interlocutory appeal to review the grant of Archie’s plea of double jeopardy as to voluntary manslaughter. For reasons which follow, we reverse.

In United States v. Larkin, 605 F2d 1360, 1368 (5th Cir. 1979), the court observed that the concept of continuing jeopardy has application where criminal proceedings against an accused have not run their full course. As noted by the Larkin court, “an acquittal on a greater offense does not preclude a retrial on a lesser offense to which continuing jeopardy has attached, and this result obtains whether the applicability of continuing jeopardy results from an appellate reversal of a conviction ... or from a mistrial caused by a deadlocked jury.” Id. at 1369.

The Supreme Court of Georgia recently considered this issue. “The Supreme Court of the United States consistently has affirmed ‘the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which (the defendant) was subjected.’ Richardson v. United States, 468 U. S. 317, 326 (104 SC 3081, 82 LE2d 242) (1984). . . .Likewise, this Court consistently has held that, under the double jeopardy provision in Georgia’s constitution, ‘if a jury cannot agree upon a verdict in a criminal case, the trial judge may declare a mistrial, and the accused may then be tried a second time for the same offense.’ [Cit.]” Rower v. State, 267 Ga. 46 (472 SE2d 297) (1996). For the reasons articulated in Rower, Archie’s reliance on Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932) and Brown v. Ohio, 432 U. S. 161, 168 (97 SC 2221, 53 LE2d 187) (1977), which involved multiple conviction or successive prosecution issues, is misplaced. See Hobbs v. State, 229 Ga. 556, 557 (2) (192 SE2d 903) (1972). Cf. Rhyne v. State, 209 Ga. App. 548, 552 (3) (434 SE2d 76) (1993) (where state was precluded from adding new charges upon retrial).

In its appeal, the state also relies on Harrison v. State, 143 Ga. App. 883 (240 SE2d 263) (1977) in which the defendant was indicted on the offense of malice murder. The jury found Harrison not guilty of murder but guilty of the lesser offense of voluntary manslaughter, a conviction which was reversed on appeal. On remand, the defendant filed a plea in double jeopardy as to the murder indictment and requested that he be re-indicted on the manslaughter offense only. No plea of double jeopardy was made with respect to the manslaughter offense. This Court held that retrying the defendant on the indictment containing the murder charge would not have been error as long as the jury only knew that the defendant was on trial for manslaughter. Although, as the state suggests, the Harrison case appears to hold that a retrial on the lesser included offense is proper after an acquittal on the greater offense, the issue in that case involved the form of the indictment rather than double jeopardy.

Nonetheless, Harrison is not without value to our consideration of this case. Here, as in Harrison, the voluntary manslaughter offense was properly before the jury for consideration. The trial judge in this case charged and re-charged the jury regarding the elements of that offense. The jury clearly stated that they found Archie not guilty of malice murder only and that they were deadlocked as to the other offenses before them. Therefore, Harrison suggests that the acquittal on the indicted offense of murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter using the same indictment, as long as the next jury does hot know about the murder charge.

Decided January 8, 1998

Reconsideration denied January 20, 1998

C. Paul Bowden, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellant.

L. Clark Landrum, for appellee.

Because Archie had been placed in jeopardy on the offense of voluntary manslaughter in the first trial, jeopardy was continuing as to that offense, and the trial court erred in granting Archie’s plea in bar based on double jeopardy with regard to that charge.

Judgment reversed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The issue of whether a verdict may be accepted after a mistrial has been declared has not been raised in this appeal. In State v. Telenko, 225 Ga. App. 724 (484 SE2d 725) (1997) (physical precedent only), a mistrial was declared after the trial judge determined that the jury was hopelessly deadlocked. Subsequently, the trial court reconsidered, and granted, a motion for mistrial based on prosecutorial misconduct which it had reserved ruling upon during trial. This Court held that the trial court’s subsequent declaration of a mistrial based on the state’s improper closing argument was a nullity. “When the horse has already escaped the stable, shutting the door thereof is a moot act.” Id. at 726. Clearly, a trial court cannot grant a mistrial after a verdict has been returned. Bowen v. State, 144 Ga. App. 329, 336 (241 SE2d 431) (1977) (on motion for rehearing). It would follow that once a mistrial has been declared, a trial court cannot accept a verdict. Here, however, the jury had not been dismissed and court had not recessed. The state did not object to further inquiry by the trial court regarding the jury’s deliberations. See also State v. Lane, 218 Ga. App. 126 (460 SE2d 550) (1995).

       See James A. Shellenberger and James A. Strazzella, “The Lesser Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies,” 79 Marquette Law Review 1 (1995).


text:
    A97A2042.
    BAUM et al. v. MOORE et al.
    (496 SE2d 307)
   Andrews, Chief Judge.

Selma and John Baum (grandparents) appeal from the trial court’s denial of their motion to intervene in the adoption of their grandchildren and also from the Final Decree of Adoption permitting David and Jeanna Moore to adopt the children. We affirm the judgment of the trial court.

In February 1996, the Baums, the children’s maternal grandparents, were awarded temporary custody of the children in a deprivation action in juvenile court. The natural parents consented to this custody.

On September 12, 1996, the juvenile court returned custody to the parents, finding “the best interests of the children would be served by returning legal and physical custody with the parents. . . The court also granted visitation rights to the grandparents who consented to the return of custody.

On January 14, 1997, the Moores, who were not related to the children, filed a Petition for Adoption in the Superior Court. The parents voluntarily surrendered their parental rights and agreed to the adoption.

After discovering the Moores were going to adopt the children, the grandparents filed a motion to intervene in the adoption proceedings. The grandparents later filed an amended motion to intervene which included a petition for adoption.

The trial court denied the motion to intervene and granted the Moores’ petition for adoption. The grandparents appealed to the Supreme Court of Georgia, alleging in part that OCGA § 19-8-15 is unconstitutional.

The Supreme Court of Georgia ordered the case transferred to this Court, holding that no constitutional issue was raised or ruled on by the trial court. Because of the Supreme Court’s ruling on the constitutional issues, the only remaining issue upon transfer to this Court is whether the trial court erred in denying the grandparents’ motion to intervene as of right under OCGA § 9-11-24 (a) (2).

The grandparents argue OCGA § 19-7-1 (b.l) gives them the right to intervene in the adoption proceeding. OCGA § 19-7-1 provides as follows:

“19-7-1. In whom parental power lies; how such power lost; recovery for homicide of child.
“(a) Until he reaches the age of majority, the child shall remain under the control of his parents, who are entitled to his services and the proceeds of his labor. In the event that a court has awarded custody of the child to one parent, only the parent who has custody of the child is entitled to his services and the proceeds of his labor.
“(b) Parental power shall be lost by:
“(1) .Voluntary contract releasing the right to a third person;
“(2) Consent to the adoption of the child by a third person;
“(b.l) Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.”

Decided January 20, 1998

Alemhik, Fine & Callner, Kathy L. Portnoy, Bruce R. Steinfeld, for appellants.

Paul L. Curcione, Lynn S. McNeese, for appellees.

When one reads OCGA § 19-7-1 (b.l) in the context of the entire Code section, it is apparent that this subsection is concerned solely with how parental power may be lost. This section does not create a new right to intervene in an adoption proceeding, but merely states that when custody is an issue between parents or between a parent and certain third parties, parental power may be lost if the court determines that an award of custody to a third party is in the best interest of the child.

Moreover, it is a well-settled rule of statutory construction that a statute must be construed in relation to other statutes, and all statutes dealing with the same subject matter are construed together and harmonized wherever possible so as to give effect to the legislative intent. In the Interest of A. V. B., 222 Ga. App. 241, 244 (474 SE2d 114) (1996). OCGA § 19-8-15 provides that blood relatives may object to a petition for adoption when the child has no legal mother or father living. This Code section also provides that grandparents with visitation rights may file objections to a petition for adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child. Thus, OCGA § 19-8-15 sets out in detail when blood relatives and grandparents with visitation rights may object to an adoption. As the trial court noted, this Court has addressed the same situation and held the grandparents had no right to intervene in the adoption proceedings, citing OCGA § 19-8-15. Murphy v. McCarthy, 201 Ga. App. 101 (410 SE2d 198) (1991). Therefore, we reject the interpretation of OCGA § 19-7-1 (b.l) argued by the grandparents because it ignores both the plain language of the statute and renders meaningless OCGA § 19-8-15 which limits the rights of grandparents and other blood relatives to file objections to petitions for adoption.

Accordingly, we hold that OCGA § 19-7-1 (b.l) does not allow the grandparents to intervene in the adoption proceeding between the children’s parents and the Moores. The trial court did not err in denying the grandparents’ motion to intervene and in granting the Moores’ petition for adoption.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.