text:
    A01A1002.
    SIMMONS v. THE STATE.
    (555 SE2d 59)
   Andrews, Presiding Judge.

Wayne Darryl Simmons appeals from the trial court’s denial of his motion for new trial after being convicted by a jury of kidnapping, aggravated assault, and possession of a firearm by a convicted felon.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Any inconsistencies in the victim [’s and witnesses’] testimony ... go to the weight and credibility of the witnesses’ testimony; such issues are for the jury to weigh. Sherman v. State, 225 Ga. App. 869 (485 SE2d 557) (1997); Jones v. State, 220 Ga. App. 236 (469 SE2d 379) (1996). “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997).

Taylor v. State, 232 Ga. App. 383, 384-385 (501 SE2d 875) (1998).

Viewing the evidence with all inferences in favor of the verdict, it was that, on October 29, 1996, after dusk, Veronica Simpson was in her apartment with her fourteen-year-old son and two-year-old daughter when she heard a loud banging at her front door. Upon opening the door, she encountered Simmons, who put a gun in her face and demanded to know where her brother was. When she said she did not know, Simmons said she would tell him or he would kill her.

Ikenyaly Rosser, Simpson’s son, came into the room and saw Simmons pointing a gun in his mother’s face. Rosser told him if he killed his mother, he would kill him. Simmons then cursed Rosser and told Simpson to take him to where her brother was. He then grabbed her shirt and pushed her out onto the porch. Because she was wearing house shoes, Simpson had her son bring her some other shoes. While Simpson and Simmons were on the porch, her neighbor Angela Rome was on her way out and Simpson told her to watch her children. Rome, who acknowledged having had several beers, did not notify police, but did later get Simpson’s children and take them to another neighbor’s apartment.

Sanchez Traylor, another neighbor, saw Simmons pulling Simpson down the steps and sidewalk and heard Simpson yelling that she did not want to go with him. Traylor saw a gun and called police.

Simpson was pushed into Simmons’ car on the passenger side. She could not open the door, and Simmons drove off. Simpson told Simmons about a Vine Street address where she had previously lived with her boyfriend, and Simmons drove there. Although lights were on, Simmons did not get out, but circled the address several times. Simmons then threatened to kill Simpson, and they struggled over the gun. During the struggle, Simmons bit Simpson on the wrist and she bit him on the head. They continued to struggle and fell out of the driver’s side of the car. Simmons hit her in the head with the gun, and the clip fell out. She grabbed the clip and ran, but Simmons grabbed her and choked her, retrieving the clip. Simmons then told her he was not going to hurt her and drove off. Simpson ran to a nearby MARTA station, and police and paramedics were called.

The paramedic examined Simpson who said she had been kidnapped, thrown from the car, and hit on the head with a gun. He found an abrasion on Simpson’s head with minor bleeding. Simpson refused to be transported to the hospital, but did meet with detectives that evening and give a statement. A warrant was issued for Simmons the next day after detectives determined his last name.

Simmons was arrested on that warrant in March 1997. When arrested, Simmons had in his car a 9-millimeter semi-automatic handgun.

The evidence of kidnapping and aggravated assault was legally sufficient. Jackson v. Virginia, supra.

1. Simmons’ first enumeration is that the trial court erred in allowing into evidence the fact that he had a gun in his possession when arrested because it placed his character in issue and was not in temporal proximity to the charged crimes.

Simmons relies on Benford v. State, 272 Ga. 348 (528 SE2d 795) (2000), in which it was stated that even

circumstances surrounding an arrest other than for the crime for which a defendant is on trial are [not] always irrelevant and prejudicial. Anderson v. State, 236 Ga. App. 679, 683 (4) (513 SE2d 235) (1999). [Cit.] However, this Court has indicated that the admission of evidence which shows the commission of another crime may not automatically be admitted solely on the basis that the evidence was incident to an accused’s arrest where the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant. [Cits.] Just as evidence of the circumstances connected with an accused’s arrest is not automatically prejudicial neither is it automatically relevant. Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence. Thus, “the admission or exclusion of this evidence ‘lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” [Cit.]

(Emphasis supplied.) Id. at 350 (3).

Here, unlike in Benford, the arrest, the circumstances of which were found admissible, was for the crime for which Simmons was on trial. Also, because a handgun was used in the charged crime, Simmons’ possession of a handgun at the time of his arrest was relevant and admissible. Compare Benford, supra (evidence of a .22 caliber handgun possessed at arrest for another crime not admissible when charged crime committed with shotgun) with Nealy v. State, 246 Ga. App. 752, 753 (1) (542 SE2d 521) (2000) (bulletproof vest worn by accused when arrested for aggravated assault with a handgun admissible in aggravated assault trial resulting from multiple weapon shootout 26 days earlier).

There was no error.

2. Simmons contends, in his second enumeration, that the trial court erred in allowing Rosser, “a child witness [,] to testify where the [S]tate failed to prove that he was competent to do so.”

At the beginning of the trial, defense counsel made an oral motion in limine, contending that Rosser is “a 14 year old, and we would request the check into his competency. He has several medical and mental disorders, and under the statute I believe it’s the court’s duty once an objection to competency has been made, to check into his competency. He is, I believe, autistic, . . . [and has] two or three other disorders.” No ruling was made at that time.

Simpson, the State’s first witness, then testified that her son, Rosser, suffered from a “disorderly conduct problem,” seizures, and schizophrenia, the latter of which resulted in his hearing voices. Rosser, however, took three medications for these problems, Ritalin (hyperactivity), Tegretol (seizures), and Haldol (schizophrenia).

Before Rosser was called as a witness, Simmons’ counsel asked the court if a competency hearing were necessary on the basis that “he’s subject to doing whatever his mother wants and says. . . .” Simmons’ counsel also questioned whether Rosser understood the difference between right and wrong and truth and a lie.

The trial court did then question Rosser outside the presence of the jury. Rosser was introduced to the court by the prosecutor, who mispronounced his name and was corrected by Rosser. The court inquired why Rosser was there, and he responded because “that man had kidnapped my momma.” Rosser also responded to the court’s inquiry regarding truth and a lie, indicating an understanding of the difference.

Pursuant to OCGA § 24-9-7: “(a) The competency of a witness shall be decided by the court. The court shall by examination decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy, (b) If an objection to competency is known, it shall be taken before the witness is examined at all. . . .”

The trial judge is vested with discretion to determine the competency of witnesses, which will not be overruled absent abuse. Gallagher v. State, 196 Ga. App. 153, 154 (395 SE2d 358) (1990).

Pursuant to Sizemore v. State, 262 Ga. 214 (416 SE2d 500) (1992), a child may no longer be challenged for competency based solely on infancy or solely on the basis that he does not comprehend the nature of an oath. Norton v. State, 263 Ga. 448, 450 (3) (435 SE2d 30) (1993) (showing of appreciation of the truth is all that is required).

Everyone is presumed competent to testify. Flynn v. State, 255 Ga. 415, 419 (7) (339 SE2d 259) (1986); Dumas v. State, 239 Ga. App. 210, 213-214 (521 SE2d 108) (1999). While any witness, including a child, may be challenged on the ground he does not have the use of reason, London v. State, 274 Ga. 91, 93 (549 SE2d 394) (2001), having mental disabilities, alone, does not establish such lack of use of reason. Even having been previously judged insane or having had a guardian appointed does not amount to incompetency to testify. McClain v. State, 248 Ga. App. 338 (2) (545 SE2d 926) (2001); Bonner v. State, 59 Ga. App. 737, 738 (1) (1 SE2d 768) (1939).

It is not apparent, from the motion in limine and other statements of Simmons regarding Rosser, that the court was required to inquire into Rosser’s competency, since no specific basis for Rosser not having the use of reason was given, other than his mental disabilities. Webb v. State, 187 Ga. App. 348, 350-351 (370 SE2d 204) (1988); see Roberson v. State, 214 Ga. App. 208, 209 (2) (447 SE2d 640) (1994).

Further, since the trial court did conduct an inquiry, there has been no abuse of discretion shown in allowing Rosser to testify Roberson, supra; Gallagher, supra.

3. The admission into evidence of Simmons’ arrest warrant is claimed as error in the third enumeration, although no objection to its admission was voiced at trial.

While acknowledging that this document should not have been allowed into evidence or out with the jury, the State contends any error was harmless.

We agree. The warrant alleges that Simmons abducted Simpson “by force and threats with a handgun. Ms. Simpson knows the accused as Wayne, and supplied this affiant with a verbal typed statement accusing Wayne of this allegation.” Both the officer who obtained the warrant and Simpson testified, as well as Simmons. Simmons acknowledged being with Simpson, but contended there was no gun and they agreed to exchange cocaine for sex. Therefore, the warrant was cumulative of admissible evidence and its admission harmless. Ansley v. State, 198 Ga. App. 452, 453 (402 SE2d 73) (1991); Nelson v. State, 197 Ga. App. 898, 899 (2) (399 SE2d 748) (1990).

4. Simmons, as his fourth enumeration, claims error in the trial court’s allowing Simpson to read, verbatim, the contents of her written statement although the document was not admitted into evidence and in allowing the prosecutor to read the victim’s statement during closing argument, because the requirements of Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998), were not met.

This argument, however, was not made below by trial counsel, as acknowledged by appellate counsel. The only objection made below to Simpson’s reading her statement was that Simmons would acquiesce in this procedure “[o]nly if we can introduce the transcript [of her testimony during the preliminary hearing].” Trial counsel also objected to her reading the document because it was not the original.

It is argued here, however, that this was “plain error.”

Although this Court will not generally consider issues not properly raised and ruled upon in the trial court, an exception exists in cases of “plain error” which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Lynd v. State, 262 Ga. 58, 61, n. 2 (414 SE2d 5) (1992). Almond v. State, 180 Ga. App. 475, 478-481 (349 SE2d 482) (1986).

Thorne v. State, 246 Ga. App. 741, 743 (2) (542 SE2d 157) (2000). See also Paul v. State, 272 Ga. 845, 848 (3) (537 SE2d 58) (2000); Morrison v. State, 248 Ga. App. 785, 787 (546 SE2d 312) (2001).

This is not such a case. Here, during cross-examination, defense counsel questioned Simpson regarding her prior knowledge of Simmons and attempted to show that her written statement was inconsistent with her preliminary hearing testimony. Also, through his questions and Simmons’ testimony, trial counsel presented the jury with Simmons’ theory that Simpson had agreed to exchange sex for cocaine and was angry because Simmons would not give her more cocaine.

It was on redirect examination that the State asked Simpson to read her statement, the incident claimed as plain error. Thereafter, on recross-examination, trial counsel elicited from Simpspn that she had read and reread her statement and “memorized it pretty much.” Further, Simpson acknowledged that, if she recanted her statement, she faced the possibility of being prosecuted for making a false statement.

No “plain error” has been shown. Buice v. State, 239 Ga. App. 52, 56 (520 SE2d 258) (1999); Brown v. State, 239 Ga. App. 674, 677 (2) (522 SE2d 41) (1999) (repeated viewings by the jury during deliberations of the videotape allegedly showing defendant throwing cocaine out of automobile window not plain error); see also Armour v. State, 247 Ga. App. 592, 593 (2) (544 SE2d 516) (2001) (admission of victim’s written statement in violation of Woodard, supra, was harmless error).

5. Simmons’ fifth enumeration is that the trial court erred in “commenting on the evidence and responding to juror’s question during deliberation in a manner [that] was prejudicial” to his case. The argument made is that the trial court violated OCGA § 17-8-57, which provides that it is error for a judge in a criminal case, “during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

After the jury had begun deliberating, the following question was sent out: “[w]hat would happen if plaintiff [sic] . . . withdrew her statement, or refused to prosecute?” The question, its import, and suggested answers were discussed by counsel and the court. Simmons’ counsel then suggested that the jury be asked, “what they mean by this. I’m not really sure.”

The court then advised the jury “we’re kind of having a problem understanding exactly. . . .” At this point, the following colloquy occurred:

A juror: Can the State charge her if she drops the charges?
A juror: Your Honor, could I clarify? If when this case was turned over to the D. A. and Veronica Simpson decided not to pursue it any further, would the charges be dropped or is it too late? Would the State proceed? . . .
A juror: If at any point she decided I just don’t want to go through with this anymore and she decided —.
The Court: Well, the question is would the State proceed. I think that’s speculating.
A juror: What would have happened, would she have been penalized?
A juror: Would the plaintiff [sic] get in trouble if she dropped the charges against the defendant?
A juror: She didn’t say she lied; she didn’t say she made a mistake; she just said I wanted to drop it. Would she have gotten in any trouble for that? . . .
The Court: I see one of the problems is would she and could she. . . .
A juror: Could she?
A juror: Let me give you another example. Say someone beat me up and I wanted to press charges for assault or whatever. I did. I went down to the police station, filed a report. A week later I said well, no, I don’t want to pursue this.
A juror: Could he have been retaliated against in any way?
The Court: I think the short answer — I may give you a longer answer tomorrow. But I think the short answer is in the hypothetical as you’ve given me, if you say no, I’ve just changed my mind. I don’t want to do this, I think the answer is no.
A juror: That’s the answer to the question.
The Court: And I’m answering specifically the hypothetical that you’ve given me.
A juror: We wonder if it was illegal to say I want to drop the charges, not that I lied or I’m admitting anything, good, bad or indifferent. I just want to drop the charges. I don’t want to bother anymore.
The Court: It is not illegal to say I want to drop the charges. I’m saying that in the context of whatever one of you just said, that it’s not I’ve committed perjury. I’ve lied.

(Emphasis supplied.)

This exchange occurred at the end of the day. The next morning, Simmons’ trial counsel objected that the trial court had not fully answered the jury’s inquiry and requested that the jury be told that, if the victim withdrew her statement, “basically she could be prosecuted for making a false statement for pexjury, obstruction of justice, violating his civil rights, those things.”

The argument made here regarding OCGA § 17-8-57 is different from the argument made below. While, generally, such an argument is not considered here for the first time, an exception exists for a violation of OCGA § 17-8-57 which results in “plain error.” Paul, supra; Rogers v. State, 247 Ga. App. 219, 226-227 (543 SE2d 81) (2000).

As discussed in Division 4, supra, Simmons’ argument throughout trial was that Simpson was lying and knew that if she withdrew her statement, she could be prosecuted for perjury. In response to this argument, Simpson testified that Simmons’ girlfriend had offered her money on four occasions in an effort to get her to drop the charges. She stated that she would not change her story because she would go to jail for peijury if she did.

The court did not answer the jury’s question specifically addressed to Simpson’s changing her mind regarding proceeding with the prosecution. As stated by the court, the jury’s premise was speculative. Although the court did respond to the hypothetical posed by the jury, that could not be said to be ah expression of opinion by the trial court on what facts had been proven during the trial or on Simmons’ guilt. See Seidenfaden v. State, 249 Ga. App. 314, 317 (2) (547 SE2d 578) (2001).

No “plain error” has been demonstrated. Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986).

6. In his sixth enumeration, Simmons contends that, through its charge to the jury, the trial court allowed the jury to convict him of aggravated assault (Count 2) in a method not charged in the indictment.

Indeed, a jury instruction can be misleading which gives several definitions of the offense where the accused is charged with only one of those definitions. But if the jury subsequently receives remedial instructions properly confining the offense to that charged in the indictment, no fatal error is present. A limiting instruction that the State must prove the offense as alleged in the indictment can cure the problem.

(Footnotes omitted.) Brown v. State, 243 Ga. App. 632, 634 (4) (534 SE2d 98) (2000). See also Buckalew v. State, 249 Ga. App. 134, 138 (4) (547 SE2d 355) (2001); Salahuddin v. State, 241 Ga. App. 168, 169 (1) (525 SE2d 422) (1999).

This is what occurred here.

7. Enumerations 7 and 8 address Simmons’ conviction of possession of a firearm by a convicted felon and are considered together.

(a) Simmons contends that the trial court erred in denying his motion for directed verdict on Count 3, possession of a firearm by a convicted felon, because there was no proof that the Wayne Simmons named in State’s Exhibit 14 was the Wayne Simmons then on trial.

State’s Exhibit 14 was a certified copy of the 1992 conviction of a Wayne Simmons for sale of cocaine. “Concordance of name alone is some evidence of identity. [OCGA § 24-4-40 (a).] Further, ‘in the absence of any denial by [Simmons] and no proof to the contraryt,]’ this concordance of name is sufficient to show that [Simmons] and the individual previously convicted were the same person. Accordingly, this enumeration is without merit.” (Citations and punctuation omitted.) Glass v. State, 181 Ga. App. 448 (1) (352 SE2d 642) (1987). See also McKenye v. State, 247 Ga. App. 536, 539 (4) (544 SE2d 490) (2001); Lewis v. State, 234 Ga. App. 873, 877 (4) (508 SE2d 218) (1998); Crawford v. State, 233 Ga. App. 323, 326 (3) (504 SE2d 19) (1998).

(b) Simmons also argues that the trial court erred in failing to reinstruct the jury, after argument in phase two of the bifurcated trial, regarding the State’s burden to prove his guilt beyond a reasonable doubt.

Immediately after the jury returned its verdict on the kidnapping and aggravated assault counts, the second phase of the trial began. After evidence was presented and short arguments were made on the possession of a firearm charge, the trial court instructed the jury on the elements of possession of a firearm by a convicted felon and that violation of the Georgia Controlled Substances Act was a felony. The court then stated, “I’m going to ask you to be governed by the other charges with regard to what your burden of proof is and what the State’s burden of proof is, and the other charges that I gave to you the other day and ask you to go back and deliberate on this charge.” The time between the court’s main charge at the conclusion of the first phase of the trial and this latter charge is represented by only 30 pages of transcript of a total of 878.

Whether, pursuant to Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794) (1994), it is error for the trial court to fail to recharge fully on reasonable doubt, presumption of innocence, and other general principles of law after the second phase of the bifurcated trial, as held in McKenye, supra at 538 (3), or not, as held in Smith v. State, 244 Ga. App. 512, 513 (1) (539 SE2d 504) (2000), any such error here was harmless considering the short period of time between the two charges. McKenye, supra at 539; Smith, supra at 513-514.

8. In his ninth enumeration, Simmons contends the trial court erred and manifestly abused its discretion in excusing juror Andrews for cause.

During voir dire, Andrews had expressed his opinion that evidence was planted in the O. J. Simpson case and was asked further about his opinion of police officers:

Q. How do you feel about police officers? Do you feel that all police officers are corrupt or do you think some?
A. In Atlanta?
Q. In Atlanta, that’s where we’re at.
A. I think 75 percent are corrupt.
Q. So if I’ve got three officers in here, you are going to think at least one or two is corrupt?
A. Probably all three.

In additional questioning, the juror also indicated that the assistant district attorneys prosecuting the case were “capable of doing anything to get a conviction.”

The trial court granted the State’s motion to disqualify the juror because he had prejudged the case.

The objection voiced below was that, prior to disqualification, the juror must affirmatively state that he cannot be “fair and impartial.” This talisman, however, is not the standard by which we judge the exercise of the trial court’s discretion in such a situation.

OCGA § 15-12-172 authorizes a court to replace a juror with an alternate if the juror is discharged for legal cause. Legal cause arises when the court determines, in its sound discretion, that the juror holds an opinion so fixed and definite that he or she cannot lay it aside and decide the case on the evidence presented and the court’s charge. “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.”

(Footnotes omitted.) Ganas v. State, 245 Ga. App. 645, 648 (3) (537 SE2d 758) (2000). See also Kirkland v. State, 271 Ga. 217, 219 (518 SE2d 687) (1999); Boyle v. State, 241 Ga. App. 883, 884 (1) (528 SE2d 303) (2000).

Here, no equivocation was voiced by the juror and we find no abuse in the trial court’s exercise of her discretion to excuse the juror. “ ‘[A] trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors.’ [Cit.]” Mulvey v. State, 250 Ga. App. 345, 348 (3) (551 SE2d 761) (2001).

9. The remaining three enumerations address trial counsel’s claimed ineffectiveness and are addressed together.

To reverse a conviction upon a claim of ineffectiveness of counsel, the defendant has the burden of proving not only that counsel’s performance was deficient, but that the deficiency so prejudiced his defense that there is a reasonable probability that the outcome of the trial would have been different in the absence thereof. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). We will not disturb a trial court’s finding of effective assistance of counsel unless clearly erroneous. Thomas v. State, 246 Ga. App. 448, 449 (1) (540 SE2d 662) (2000).

(a) Simmons contends that trial counsel’s reference to him as a “dog” during his closing argument did not meet the standard of effective assistance, relying on Kornegay v. State, 174 Ga. App. 279 (329 SE2d 601) (1985).

Trial counsel testified at the motion for new trial hearing that, by this reference, he was referring to Simmons’ propensity to chase women and do drugs, which was part of his trial strategy. Simmons testified that he and Simpson had agreed that she would give him oral sex in exchange for cocaine and he acknowledged having done the same thing with another woman.

This case is factually similar to and controlled by Mize v. State, 269 Ga. 646, 655 (11) (501 SE2d 219) (1998), in which trial counsel referred to his client as a “redneck” and a “racist,” and the Supreme Court found this a reasonable attempt to persuade the jury that, while Mize might be a racist, he was not a murderer.

That Simmons and appellate counsel now disagree with this strategy does not mandate a finding of ineffective assistance of trial counsel, Ross v. State, 231 Ga. App. 793, 799 (7) (499 SE2d 642) (1998); McGarity v. State, 212 Ga. App. 17, 22 (7) (440 SE2d 695) (1994), and we find the trial court’s conclusion that this trial strategy did not amount to ineffective assistance of counsel was not clearly erroneous. Bolick v. State, 244 Ga. App. 567, 573 (1) (h) (536 SE2d 242) (2000).

(b) Simmons also challenges trial counsel’s effectiveness because he did not call a medical doctor to testify or subpoena medical records regarding a prior injury to his leg which caused a limp.

Trial counsel testified that he believed the issue of a limp was a “collateral issue” to the main issue of whether Simmons entered the apartment and committed the charged acts. Trial counsel did allude to the limp in his opening argument and questioned Simmons about it, but decided not to call a doctor. He had previously tried such a tactic with a client in another case and found it ineffective. Therefore, as a matter of trial strategy, trial counsel chose not to do so here.

Again, while appellate counsel and Simmons may now disagree with this decision, that does not make it ineffective assistance of counsel, and denial of the motion for new trial on this basis was not clearly erroneous. Bolick, supra; Ross, supra.

Decided October 3, 2001

Jodi Dick, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Shawn D. McAllister, Assistant District Attorneys, for appellee.

(c) Finally, Simmons contends that trial counsel was ineffective for failing to object to admission of the arrest warrant, the reading into evidence of Simpson’s statement by her, and reading by the prosecutor of it during closing argument.

As held in Division 4, the latter two grounds do not amount to “plain error,” even though not objected to below. As also discussed in that Division, Simmons’ trial strategy was to argue that Simpson had memorized her original statement to police and recited it by rote in order not to face charges for perjury.

While, during the motion for new trial hearing, trial counsel acknowledged that, in hindsight, he should have objected to the rereading of Simpson’s statement and admission of the arrest warrant into evidence,

“[t]he standard regarding ineffective assistance of counsel is ‘not errorless counsel and not counsel judged ineffective by hindsight, but counsel . . . rendering reasonably effective assistance.’ (Cits.) In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy.” [Cit.] “Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight (or) result.” [Cit.]

Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

The trial court’s finding that Simmons received effective assistance of counsel on these grounds was not clearly erroneous. Slade, supra at 308; Silcox v. State, 241 Ga. App. 845 (528 SE2d 271) (2000).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       At that time, Simpson knew Simmons by his first name only.

       Apparently, Simmons was looking for Elton, a/k/a J. R., the father of Simpson’s children, but thought he was her brother.

       The conviction of possession of a firearm by a convicted felon is discussed in Division 7, infra.

       As held in Cain v. State, 113 Ga. App. 477, 481 (5) (148 SE2d 508) (1966), and Spence v. State, 96 Ga. App. 19, 20 (3) (99 SE2d 309) (1957).

       This case is not binding precedent, having been fully concurred in by only four judges of this Court, with one judge concurring in the judgment only and four judges dissenting. Court of Appeals Rule 33 (a); Cooper v. State, 189 Ga. App. 286, 288 (375 SE2d 505) (1988) (Deen, P. J., concurring specially). Further, the racist language used there had no justifiable purpose and is not comparable to Simmons’ situation.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1472.
    MATHESON v. STILKENBOOM.
    (555 SE2d 73)
   Ruffin, Judge.

Ruth Matheson sued Scott Stilkenboom for damages sustained in an automobile collision allegedly caused by Stilkenboom’s negligence. The jury returned a defense verdict, and Matheson appeals, claiming that the trial court erroneously refused to recharge the jury on the definition of negligence, allowed improper cross-examination, and committed two charging errors. For reasons that follow, we reverse the judgment entered on the jury’s verdict and remand for a new trial.

The evidence presented at trial showed that on January 26, 1998, Stilkenboom’s car collided with Matheson’s car on a rural, gravel road. According to Matheson, she was driving in her lane of travel when she saw Stilkenboom “coming down the road [toward her] out of control.” Matheson testified that Stilkenboom was driving “pretty fast” and his car was “fishtailing” from side to side. She held tight to her steering wheel and braked, but had no time to take other evasive action. Stilkenboom hit the left front of her car, knocking it backward. The officer that investigated the collision found Matheson’s car in its proper lane of travel when he arrived at the scene.

Stilkenboom offered a different version of events. He testified that as he came around a curve, he saw Matheson’s car stopped or slowing in the middle of the road. At that point, he braked and began to skid on the gravel, eventually hitting Matheson. Stilkenboom explained that he had no time to think about what to do. Asked whether he had any alternative courses of action during the “split second when [he] saw [Matheson] in the roadway,” Stilkenboom responded that he could have tried to pass her or drive into one of the ditches that lined the side of the road. At the moment he saw her, however, he believed he would have difficulty maneuvering around her car.

1. Matheson argues that the trial court erred in failing to recharge the jury on the definition of negligence. We agree, and this error requires reversal.

“When a jury requests a recharge on any question, it is the duty of the trial court to do so, whether by restating the entire charge or addressing the requested points only.” The jury must be able to understand the law in order to return a lawfully arrived-at verdict. A trial judge faced with a question from the jury, therefore, should “clarify any confusion as to the applicable issues of law as raised by the evidence at trial.” Simply telling the jury to consider previously given instructions does not suffice.

In this case, the trial court instructed the jury on various negligence principles, including the basic definition of negligence. After deliberations began, the jury sent the trial court a note, requesting a negligence definition. Matheson’s counsel asked the trial court to recharge the jury on the definition of negligence given in the court’s original charge. The trial court declined to do so, instead informing jurors in a responsive note that it had already defined negligence for them.

Two minutes later, the jury asked for a written definition of negligence. The trial court refused this request. Discussing the jury’s questions with counsel, the trial court offered to reread the entire charge to the jury. Stilkenboom’s counsel noted that a recharge would be time-consuming. Matheson’s counsel responded, “[w]ell, Judge, if you have to, you have to.” Nevertheless, no recharge was given, and the jury returned a defense verdict less than 30 minutes later.

On two occasions, jurors expressed uncertainty and confusion regarding the definition of negligence, a central issue in the case. The trial court made no effort to clarify the law for jurors, but simply told them that they had already been charged on the principle causing confusion. “As a result of [this] confusion, and the court’s refusal to remove it and clarify the law . . . , the jury may well have based its decision on an erroneous understanding and application of [negligence] principles.”

The trial court was duty-bound to recharge the jury when it received the jurors’ questions about the definition of negligence. By “merely instructing the jury to consider the instructions previously given,” the trial court committed reversible error.

2. Because Matheson’s remaining enumerations of error involve issues that may arise on retrial, we will address them here.

(a) Matheson first argues that the trial court erroneously permitted Stilkenboom to cross-examine her regarding her medical insurance coverage. We find no error.

Matheson did not complain about any injury at the scene of the collision and embarked on a cruise to the Bahamas two days after the wreck. She admitted that, despite being in pain, she did not seek medical treatment before or during the cruise for any injuries allegedly suffered in the collision. In fact, she waited 20 days before seeking treatment. Apparently trying to explain this delay, she testified on direct examination that she did not visit the ship’s doctor because she could not afford the treatment. According to Matheson, “I made one phone call for one minute, and it was $9.50, and I sure couldn’t afford a doctor on board.” Over objection, the trial court allowed Stilkenboom to impeach Matheson with evidence of her health insurance.

We agree with the trial court that Matheson’s testimony opened the door for impeachment with evidence of insurance. As Matheson recognizes in her brief, a party may be impeached with collateral source evidence if the impeached testimony relates to a material issue. At trial, Stilkenboom asserted that Matheson was not seriously injured in the collision and thus not entitled to the damages claimed. Key jury questions, therefore, involved the extent of Matheson’s damages and whether Stilkenboom’s alleged negligence proximately caused any injury. Evidence that Matheson delayed seeking medical treatment — and her explanation for that delay — related to these material issues. The trial court properly allowed Stilkenboom to cross-examine Matheson about her explanation with evidence of insurance.

Furthermore, the record shows that Stilkenboom sought to impeach Matheson with collateral source evidence only after Matheson introduced at trial a medical bill showing that she had insurance coverage. During the cross-examination, Stilkenboom’s counsel referred directly to that bill and the insurance notations on it. As we have held:

“A party cannot claim error because of a reference to insurance where he himself committed or invited the error, as where reference is made on direct examination, or cross-examination, of witnesses. One cannot complain of a judgment, order or ruling that his own procedure or conduct procured or aided in causing, nor can he be heard to complain of or question a judgment which he invokes.”

Because Matheson injected evidence of her own insurance into the trial, she cannot complain about Stilkenboom’s use of this evidence on cross-examination.*

(b) Matheson also argues that the trial court erred in instructing the jury on sudden emergency. A sudden emergency charge is authorized “where the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought; under such circumstances, negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.”

Decided October 3, 2001.

Douglas L. Henry, for appellant.

Carey, Jarrard & Walker, Daniel L. Parr, Sr., for appellee.

When a party presents any evidence — even slight evidence — on a particular issue, a trial court does not err in charging the law on that issue. Stilkenboom testified that he rounded the curve at a safe speed and came upon Matheson’s car in the middle of the road. With no time to think, he braked, rather than trying to pass her, and skidded into her car. This testimony constituted some evidence of an emergency, and the trial court committed no error in charging the jury on this defense.

(c) We similarly find no error in the trial court’s decision to charge the jury on contributory negligence. Matheson argues that the record lacks evidence that she was negligent. Stilkenboom testified, however, that because Matheson’s car was in the middle of the road, he braked, then lost control on the gravel, and skidded into her. Although Matheson offered conflicting evidence, Stilkenboom’s testimony about the location of Matheson’s car presented sufficient evidence to support the contributory negligence charge.

Judgment reversed and remanded.

Johnson, P. J., and Ellington, J., concur.

       (Citations omitted; emphasis supplied.) Jackson v. State, 239 Ga. App. 888, 889 (522 SE2d 295) (1999); see also Hubert v. City of Marietta, 224 Ga. 706, 711 (4) (164 SE2d 832) (1968).

        Brown v. City of Fitzgerald, 177 Ga. App. 859, 861 (1) (341 SE2d 476) (1986).

       Id. at 860 (1).

       See id.; see also Matthews v. Taylor, 155 Ga. App. 2, 4 (2) (270 SE2d 247) (1980); Freeman v. State, 142 Ga. App. 293, 294-295 (4) (235 SE2d 560) (1977).

        Brown, supra at 860 (1).

        Matthews, supra.

       Id.; see also Brown, supra at 861.

        Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996); Worthy v. Kendall, 222 Ga. App. 324, 325 (1) (474 SE2d 627) (1996).

       Cf. Warren, supra (impeachment with evidence of collateral source not proper because testimony not relevant to material issue); Worthy, supra at 325-326 (same).

        Loman v. Reville, 215 Ga. App. 356-357 (1) (450 SE2d 707) (1994).

       Id.

        Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 641 (2) (a) (519 SE2d 722) (1999).

       Id.

       Id. The investigating officer cited Stilkenboom for failure to maintain his lane because skid and scuff marks showed that his car was on the wrong side of the road at certain points before the collision. Stilkenboom pled guilty to the charge. Matheson argues that Stilkenboom helped create the emergency by failing to maintain his lane, precluding an emergency charge. Stilkenboom testified, however, that he braked and began to skid after he encountered the claimed emergency presented by Matheson’s car. From this evidence, a jury could conclude that Stilkenboom’s failure to maintain his lane resulted from, rather than helped create, the emergency situation.

       Id. at 641 (2) (b).


author: Smith, Presiding Judge.

text:
    A01A1555.
    COBB v. THE STATE.
    (555 SE2d 79)
   Smith, Presiding Judge.

Steven Cobb, David Dombrowski, and others were indicted by a Barrow County grand jury on one count of selling marijuana. Cobb was found guilty, and he appeals from the judgment of conviction and sentence, asserting as his sole enumeration of error that the trial court erred in admitting evidence of his prior criminal convictions. Because Cobb “opened the door” to a discussion of his criminal history by raising the issue in his testimony on direct examination, we affirm.

On direct examination, Cobb testified that his apparent involvement with the marijuana sale for which he was arrested was all a misunderstanding. He contended that he was merely staying in Dombrowski’s trailer, that he did not know Dombrowski and his girlfriend were growing marijuana, and that when he discovered Dombrowski engaging in a sale of marijuana, he remonstrated with him and attempted to throw the bag out of the trailer but was intercepted by undercover officers. He explained his conduct by testifying that he had just been released from prison work camp and did not want to go back to prison “for something that’s stupid.” He asserted, “I learned my lesson.” Cobb’s counsel then questioned him regarding the previous offense for which he had been confined, theft by receiving. He elaborated on the circumstances of that crime, asserting that he was the innocent victim of a girl who left stolen goods at his house. On cross-examination, the State questioned Cobb over objection about his other convictions for giving a false name and entering an auto.

“Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988). “It was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination.” (Citations and punctuation omitted.) Mitchell v. State, 193 Ga. App. 214, 216 (2) (387 SE2d 425) (1989).

Moreover, in his testimony on direct examination, Cobb expressly stated that, in both the offense charged and his previous conviction for theft by receiving, he was an innocent victim of circumstance. Cobb presented this testimony as a central part of his defense and

with the purpose of exonerating himself. He therefore did, arguably, put his character in issue or at least raised a matter to be impeached, and the State was allowed to rebut his testimony under the ruling in Jones, supra. Further, by attempting to benefit from evidence indicating past criminal conduct, he waived any right in this case to object to the State’s right to put that evidence in its true context for the jury. [Cit.]

Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). See also Roman v. State, 245 Ga. App. 225, 228-229 (4) (537 SE2d 684) (2000).

Judgment affirmed.

Barnes and Phipps, JJ., concur.

Decided October 3, 2001.

Hicks & Massey, Robert M. Gardner, Jr., for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.


author: Phipps, Judge.

text:
    A01A1808.
    ROCKEFELLER v. KAISER FOUNDATION HEALTH PLAN OF GEORGIA et al.
    (554 SE2d 623)
   Phipps, Judge.

Kimberly Rockefeller brought this medical malpractice action against a health maintenance organization (HMO) of which she was a member and against various of its corporate affiliates and individual employees. She complains that a physician’s assistant (PA), supervised by physicians who had not been approved by the Composite State Board of Medical Examiners (the Board), treated her and performed tasks not authorized by his job description on file with the Board. For these reasons, she claims that the defendants committed negligence per se by violating the Physician’s Assistant Act (PAA or the Act) and regulations implemented by the Board under the Act. She moved for partial summary judgment on her claim of negligence per se. The trial court denied the motion. We granted Rockefeller’s application for interlocutory appeal.

Rockefeller was a member of an HMO incorporated as Kaiser Foundation Health Plan of Georgia and doing business as Kaiser Permanente. Dr. Bruce Sabin was her primary care physician. He was employed by a Kaiser subsidiary at the Gwinnett Medical Center on Pleasant Hill Road in Duluth. Drs. Sean Murphy and Martin Ettinger and PA Jimmy McPeters were also employed there. Sabin filed an application with the Board for utilization of McPeters as a PA. Although certain other physicians were listed as additional supervising physicians, Murphy and Ettinger were not.

McPeters’s “basic job description” on file with the Board authorized him to “order/select a dangerous drug or controlled substance or order medical treatments or diagnostic studies in any health care setting in accordance with [Board] Rule 360-5-.07 (8)” and to “perform those routine medical treatments and diagnostic procedures for which he/she is qualified by training and which fall within the normal scope of practice of the supervising physician as delegated by the supervising physician.” McPeters also was authorized by his job description to “gather data base on all new patients or established patients with new problems to include a complete medical history and physical examination, medical record review, appropriate initial diagnostic studies, and will be responsible for transmitting that information to the supervising physician(s) for review.” If a “life threatening emergency situation” arose when the supervising physician was not present, McPeters was authorized to “initiate appropriate evaluation and treatment.”

Although the Board had not authorized Murphy or Ettinger to supervise McPeters, Sabin testified that he approved these doctors’ supervision of McPeters so that he could render services to Sabin’s patients. Specifically, Sabin testified that McPeters was authorized to order medications for patients which were authorized and prescribed by a physician and to arrive at a provisional diagnosis when a physician countersigned the medical record concluding that the documented clinical conditions justified the action taken.

On April 21, 1997, Rockefeller appeared at Gwinnett Medical Center complaining of nasal congestion, dry cough, and fever to the extent that she was unable to sleep. Sabin was not there. After McPeters examined Rockefeller, he arrived at a provisional diagnosis of viral syndrome and selected a Ventolin inhaler, cough syrup, Motrin, and guaifenesin for her treatment. Ettinger reviewed and countersigned Rockefeller’s medical records, noting his determination that documented clinical conditions justified the action taken. Murphy reviewed and cosigned the prescriptions.

The next day, Rockefeller experienced severe shortness of breath. She was taken by ambulance to the hospital where a chest x-ray revealed pneumonia. After being admitted to the hospital, Rockefeller became comatose and remained so for two months. She now suffers from severe permanent disabilities. She claims defendants were negligent in misdiagnosing her condition and in failing to order an appropriate diagnostic study, i.e., an x-ray of her chest.

In moving for partial summary judgment on her claim of negligence per se, Rockefeller argued that defendants violated the PAA, specifically OCGA §§ 43-34-103 (e.l) (1) and 43-34-105, because the Board had not authorized McPeters to treat patients or carry out prescription drug orders under the supervision of Murphy or Ettinger. As authority in support of her claim that violations of the PAA constitute negligence per se, Rockefeller relied on the decision of the Supreme Court of Georgia in Central Anesthesia Assoc. v. Worthy. Additionally, she asserted that McPeters’s job description did not authorize him to render a provisional diagnosis of her condition.

In opposition to Rockefeller’s motion, defendants argued that under Cardio TVP Surgical Assoc. v. Gillis, the Board is vested with exclusive authority to determine whether the PAA has been violated. Additionally, defendants argued that the PAA does not establish standards of conduct so that violations of the Act cannot give rise to actions based on negligence per se; that OCGA § 43-34-103 (b) implicitly authorizes physicians in a group practice setting to supervise PAs licensed to other physicians in the group without Board approval; and that there are, in any event, issues of fact as to whether the PAA was violated.

We resolve these issues as follows. In Division 1, we affirm the trial court’s grant of Rockefeller’s motion for partial summary judgment on questions of whether defendants committed negligence per se as a result of McPeters’s treatment of Rockefeller and his ordering of prescription drugs without being supervised by a Board-approved physician. In so holding, we find Worthy applicable and Cardio TVP distinguishable. In Division 2, we reverse the trial court’s grant of partial summary judgment to Rockefeller on the question of whether defendants committed negligence per se on the ground that McPeters performed a task not authorized by his job description by rendering a provisional diagnosis of Rockefeller’s condition. We find that there are material issues of fact on this question. In Division 3, we reject the defendants’ argument concerning OCGA § 43-34-103 (b).

1. The General Assembly enacted the PAA “to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [PAs] where such delegation is consistent with the patient’s health and welfare.” In order to obtain approval for the utilization of a person as a PA, the Act requires the licensed physician who will be responsible for the performance of that assistant to submit an application to the Board. Board regulations make clear that more than one physician may be listed on the application, although the number of PAs which may be licensed to any one physician is limited by OCGA § 43-34-103 (b). Both the Act and the regulations require that each physician provide individualized information to the Board relating to his or her professional background and practice specialty before being approved as a PA’s supervising physician. In approving the application, the Board thus determines whether the physician is qualified to competently supervise that particular PA.

The application must also include a job description for the PA. The Act, in OCGA § 43-34-105, states that the PA may perform the tasks described in the job description “under the direction of the applying physician.” Under Board Rules 360-5-.04 (2) and 360-5-.07 (2), a PA may perform only those tasks which are specified, for the physician or physicians named, in his job description then on file with “and approved by the Board.”

Under OCGA § 43-34-103 (e.l) (1), “a [PA] shall be allowed to carry out a prescription drug order . . . pursuant to the authority delegated by the supervising physician of that [PA].” This Code section further provides that “[delegation of such authority shall be contained in the [PA’s] job description” and that the delegating physician “shall adequately supervise the [PA].” Under the Act, to “[c]arry out a prescription drug . . . order” means “to complete, on a form established and approved by the board, a written prescription drug order . . . pursuant to the authority delegated by a supervising physician.” Board Rule 360-5-.07 (8) (a) (3) states that “ordering/selecting of a drug under such delegation shall not be construed to authorize prescribing, which act can only be performed by the supervising physician.” This rule, however, further authorizes the PA to prepare a written prescription, “the issuance of which has been authorized by the supervising physician, so long as such written prescription is signed by the supervising physician on the date when issued, and so long as the prescription is not signed in blank.”

As recognized by this court in Central Anesthesia Assoc. v. Worthy,

[i]t is well-settled that Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se. [Cit.] The standard of review to determine whether the violation of a statute is negligence per se is two-fold. . . . “[I]t is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. (Cits.)”. . . For a violation of the statute to be negligence per se, the violation “must be capable of having a causal connection between it and the damage or injury inflicted upon the other person.” [Cit.] . . . This refers not to the proximate cause element of the negligence action, which [Rockefeller] must still prove by a preponderance of the evidence, but rather to the character of the legal duty involved. Is this statutory duty one which, if breached, is capable of producing injury to [a person being treated by a PA]?

Violation of a regulation may also constitute negligence per se.

Rockefeller’s primary claim is that the defendants were negligent per se because they violated OCGA § 43-34-105. In full, it provides:

On receipt of notice of the board’s approval, a [PA], under the direction of the applying physician, may perform the tasks described in the job description, provided that nothing in this Code section shall make unlawful the performance of a medical task by the [PA], whether or not such task is specified in the general job description, when it is performed under the direct supervision and in the presence of the physician utilizing him.

The statute is thus composed of two parts. The first part creates a general rule, and it establishes a standard of conduct under which a PA may perform only those tasks in his job description and only under the direction of the applying physician. These limitations are intended to protect the health and welfare of patients such as Rockefeller, by insuring that the PA’s treatment of the patient is overseen by a physician who is qualified to supervise the PA in the tasks performed. These limitations are certainly intended to guard against harm suffered by patients as a result of mistakes such as those charged to McPeters. Consequently, under the analysis set forth in Worthy, the defendants’ violation of this statutory standard constitutes negligence per se.

The defendants, however, relying on the second part of OCGA § 43-34-105 and Cardio TVP Surgical Assoc. v. Gillis, argue that Rockefeller is not entitled to summary judgment on any negligence per se issues because determinations as to whether the PAA has been violated must be made by the Board. The second part of the statute erects a proviso to the general rule established in the first part. In Cardio TVP, the Supreme Court interpreted the proviso as authorizing a PA to perform any work that the assistant is competent to do, even if the task is not set forth in his job description, if the task is performed under the direct supervision and in the presence of the physician utilizing the PA.

The question in Cardio TVP was whether a PA was competent to harvest the saphenous vein of a patient in the presence and under the supervision of a physician performing a coronary bypass operation. On direct appeal from an order of the trial court granting the defendants’ motion for partial summary judgment on the issue, this court held that the question presented was for a jury to determine. The Supreme Court granted certiorari and reversed, holding that it is a matter strictly for the Board to determine the nature and scope of the medical tasks which any PA may be qualified to perform. Because the defendants in Cardio TVP presented testimony from the executive director of the Board that the procedure at issue was considered a routine medical task capable of being performed by PAs, and because the plaintiff adduced no evidence in rebuttal, the Supreme Court held that the defendants were entitled to summary judgment on the issue.

Contrary to the argument advanced by the defendants, we do not interpret Cardio TVP as depriving the courts of the authority to determine whether the PAA has been violated where, as here, the PAA itself establishes certain standards of conduct which do not involve any determination by the Board concerning the competency of a PA to perform a given task or concerning some other medical issue. Because it is undisputed that no Board-approved physician supervised McPeters’s treatment of Rockefeller and his ordering of the prescription drugs in this case, Rockefeller has shown that the defendants violated OCGA §§ 43-34-103 (e.l) (1) and 43-34-105 without testimony from a Board representative.

2. We do agree, however, that whether McPeters exceeded the scope of his job description by rendering a provisional diagnosis of Rockefeller’s condition is a question which cannot be answered without testimony from a Board representative. Although McPeters’s job description expressly authorized him to “initiate appropriate evaluation” in the event of a “life threatening emergency situation,” it also allowed him to “order routine . . . diagnostic procedures for which [he] is qualified by training . . .” and to “order/select” prescription drugs. It could be argued that if the PA is qualified by training to do so, the foregoing job description implicitly authorizes him to provisionally diagnose a condition for which prescription drugs are “order [ed]/select [ed].”

3. Finally, we reject defendants’ argument that under OCGA § 43-34-103 (b), a physician who is a member of a group practice setting may supervise the PA of another physician within the group without Board approval. In full, prior to its 2001 amendment, OCGA § 43-34-103 (b) provided:

No physician shall have more than two physician’s assistants licensed to him or her at any one time. However, a physician may supervise more than two [PAs] while on call for a solo practitioner or as a member of a group practice setting. . . . The physician taking call must be approved to supervise the [PA] of the physician for whom he or she is taking call.

As we interpret OCGA § 43-34-103 (b), a physician taking call for a solo practitioner or as a member of a group practice may supervise more than two PAs but must still be approved by the Board to supervise each of them. To interpret “on call” as modifying the. phrase “for a sole practitioner” but not the words “as a member of a group practice setting” would result in a partial repeal by implication of the general requirement that any physician seeking supervisory authority over a PA must obtain Board approval. “Repeals by implication are not favored.”

Consequently, as to Rockefeller’s claim of negligence per se, she was entitled to partial summary judgment on the subissues relating to defendants’ violations of OCGA §§ 43-34-105 and 43-34-103 (e.l) (1). On the question of whether McPeters exceeded his job description by rendering a provisional diagnosis, Rockefeller was not entitled to summary judgment.

Decided October 3, 2001.

Neal H. Howard & Associates, Neal H. Howard, William D. James, Debra S. Robinson, Baum & McGahren, Matthew F. McGahren, for appellant.

Love & Willingham, Jonathan C. Peters, Jason B. Branch, for appellees.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Barnes, J., concur.

       OCGA § 43-34-100 et seq.

       Rules & Regulations of the State of Georgia, Rules of Composite State Board of Medical Examiners, Rule 360-5-.01 et seq.

       254 Ga. 728, 730-733 (1), (2) (333 SE2d 829) (1985).

       272 Ga. 404, 405 (1) (528 SE2d 785) (2000).

       OCGA § 43-34-101 (b).

       OCGA § 43-34-103 (a).

       Rule 360-5-.03 (c).

       OCGA § 43-34-103 (a) (3); Rule 360-5-.03 (c) (3).

       OCGA § 43-34-103 (a) (3).

       OCGA § 43-34-102 (2).

       173 Ga. App. 150 (325 SE2d 819) (1984), aff'd, supra, 254 Ga. 728.

       Id. at 152-153.

        Donaldson v. Dept. of Transp., 236 Ga. App. 411, 416 (1) (b) (511 SE2d 210) (1999).

       See also Central Anesthesia Assoc. v. Worthy, supra, 254 Ga. 728 (finding negligence per se based on violation of statute requiring licensed physician with training or experience in anesthesiology to supervise certified registered nurse anesthetist in administering anesthesia). Thus, statutes containing licensing requirements may also establish standards of conduct. See Ledee v. Devoe, 250 Ga. App. 15, 21 (8) (549 SE2d 167) (2001) (practice of law without a license constitutes negligence per se); Horney v. Panter, 204 Ga. App. 474, 475-476 (2) (420 SE2d 8) (1992) (recognizing that engaging in electrical contracting business without a license may constitute negligence per se).

       Supra, 272 Ga. 404.

        Gillis v. Cardio TVP Surgical Assoc., 239 Ga. App. 350, 353 (1) (a) (520 SE2d 767) (1999).

       The requirements of the PAA do not, however, “create a duty, the breach of which is inextricable from the proximate cause of the [plaintiff’s] damage. . . .” Central Anesthesia Assoc. v. Worthy, supra, 254 Ga. at 733 (2). In order to recover under a negligence per se theory, Rockefeller therefore must establish a proximate causal relationship between defendants’ violation of the PAA and the injuries for which she seeks recovery. In essence, she must show that if McPeters had been supervised by a Board-approved physician, he would have accurately diagnosed her condition and ordered the correct medications. Basically, this will require her to prove that McPeters was negligently supervised. In practice, therefore, Rockefeller’s negligence per se theory does not materially advance her cause.

        Chatham, County v. Hussey, 267 Ga. 895 (485 SE2d 753) (1997).


text:
    A01A1986.
    MATHIS v. THE STATE.
    (555 SE2d 86)
   Phipps, Judge.

A jury found Henry Ray Mathis guilty of two counts of burglary, entering an auto, theft by taking, driving with a suspended license, and no proof of insurance. Mathis claims the trial court erred by excluding the out-of-court statement of a witness who was unavailable to testify at trial. Finding no abuse of discretion, we affirm.

The Royal Lakes Golf & Country Club maintenance building and a van parked behind it were burglarized during the evening of December 14 or the early morning of December 15, 1998. A number of items were stolen. Later on December 15, an abandoned car was found containing the stolen items. The car belonged to Mathis.

Officer Shane Dalton later interviewed Mathis. According to Dalton, Mathis said he had left his car at his roommate’s house before the country club burglaries and that someone must have taken it. He denied committing the burglaries but admitted driving with a suspended license and without insurance. Mathis also told Dalton he had been staying with Joshua LaFrancis around the time of the burglaries.

Dalton testified that he had then interviewed LaFrancis. Mathis’s attorney tried to question Dalton about LaFrancis’s statement, but the prosecutor objected on hearsay grounds. Mathis’s attorney argued that LaFrancis was unavailable and that his statement should be admissible under the necessity exception to the hearsay rule. The trial court excluded the statement because, among other reasons, Mathis had not acted diligently to find LaFrancis.

In order for a party to introduce an out-of-court statement under the necessity exception to the hearsay rule, (1) the declarant must be dead or unavailable, (2) there must be particular guarantees of trustworthiness, (3) the statement must be relevant to a material fact, and (4) the statement must be more probative on that material fact than other evidence that may be procured and offered. To satisfy the first prong of the necessity exception with respect to a live declarant, the party seeking to admit the statement must show that he made a reasonable effort to find the declarant. “It is within the sound discretion of the trial court to determine ... a party’s diligence in searching for [a] witness,” and we will not disturb that determination absent a “manifest abuse of discretion.”

In this case, the State included LaFrancis on its witness list and provided his address. Mathis’s attorney told the trial court that he went to that address and spoke with LaFrancis’s mother, who said she did not want her young son involved in the matter. Defense counsel left a subpoena for LaFrancis with his mother in the hope she would give it to her son. He said he later learned from the State that LaFrancis had moved to Michigan and that the State could not find him. The attorney made no further effort to locate LaFrancis.

We find no manifest abuse of discretion in the trial court’s ruling. Rather than try to serve LaFrancis personally, Mathis’s attorney left the subpoena with his mother. Upon learning LaFrancis had moved to Michigan, counsel stopped looking for him. Although he argues that his resources as appointed counsel were limited, he gave the trial court no explanation for his failure to take even simple, inexpensive steps to find LaFrancis’s new address, such as asking LaFrancis’s mother for it or calling directory assistance in Michigan. He told the trial court that the State had not been able to find LaFrancis, but did not explain what efforts the State had undertaken. Thus, there is no indication in the record that LaFrancis would have been particularly difficult to find or that he was trying to avoid testifying or evade a subpoena. As the State points out in its brief, Mathis could have sought a continuance if he needed more timet to search and could have applied to the court for funds if additional investigation proved costly.

Decided October 3, 2001.

Maddox, Cummings & Kelley, W. Andrew Maddox, for appellant.

Lydia J. Sartain, District Attorney, Lindsay H. Messick, Assistant District Attorney, for appellee.

Under the circumstances here, we will not second-guess the trial court’s determination that Mathis did not expend reasonable efforts to find LaFrancis.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       In the statement, LaFrancis told Dalton that he was an acquaintance of Mathis, that Mathis had walked to his house the day before the burglaries and spent the night, and that he had not seen Mathis’s car.

       The trial court also found that the statement lacked guarantees of trustworthiness, but we need not reach that issue in light of our ruling below.

        Holmes v. State, 271 Ga. 138-139 (2) (516 SE2d 61) (1999).

       Id. at 139.

       (Footnotes omitted.) Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000).

       See Rosser v. State, 211 Ga. App. 402, 405 (1) (439 SE2d 72) (1993) (reversing trial court’s determination that witness was unavailable where State spent only four and one-half hours searching for her), disapproved on other grounds, Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997).

       Compare Battle v. State, supra (witness was deemed unavailable where State spent six months trying to find her, including making seven or eight trips to her last known address and contacting authorities in jurisdiction where she had moved to “have her forcibly returned to testify”); Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 561 (2) (492 SE2d 317) (1997) (“When a witness cannot be found after diligent search because [he is] hiding to avoid testifying, necessity has been shown. [Cit.]”).


author: Eldridge, Judge.

text:
    A01A2082.
    In the Interest of C. F. et al., children.
    (555 SE2d 81)
   Eldridge, Judge.

The father of C. F. and K. F. appeals from the December 8, 2001 order of the Juvenile Court of Cobb County terminating his parents rights* contending that such order was not supported by clear ar‘ convincing proof. Finding no error, we affirm.

“On appeal, we must view the evidence in a light most favorab - to the juvenile court’s order and determine whether a rational trier ( fact could have found by clear and convincing evidence that the par ent’s rights should have been terminated. We do not weigh the evidence and must defer to the trial judge as the factfinder.” (Citation and punctuation omitted.) In the Interest of K. A. C., 229 Ga. App. 254, 255 (3) (493 SE2d 645) (1997).

Viewed in this light, the record shows that on November 21, 1997, the children were taken into custody by the Marietta Police due to the mother’s abuse of cocaine and the father’s inability to provide for the children because he was homeless and unemployed. At such time, C. E, a male, was seven years old, and K. E, a female, was three. The children were placed with a maternal aunt. Deprivation proceedings were commenced by the Department of Family & Children Services (“DFCS”). On January 13, 1998, the juvenile court found that the children were deprived due to the mother’s abuse of cocaine, the father’s inability to provide for the children, the parents having been taken into custody by the Cobb County Sheriff’s Office on outstanding warrants, and the mother’s assertions that the father also abused drugs and had physically abused her. At the termination proceedings, both parents admitted to drug and alcohol abuse during the time period prior to the children’s removal. Temporary custody of the children was continued in the maternal aunt. The parents were ordered to complete drug and alcohol assessments and any recommended therapy.

On April 20, 1998, another hearing was held because the maternal aunt, due to health problems, could no longer care for the chilIren. At such time, the parents’ whereabouts were unknown. The . hildren were placed with their maternal great-grandmother. In ddition to drug and alcohol assessments and therapy, the parents were ordered to establish stable housing and employment.

On September 16, 1998, the mother was incarcerated for viola-ion of felony probation and sentenced to serve four months. In Octo>er 1998, the father entered Victory House, a faith-based housing, ork, and drug treatment program. On December 11, 1998, an order as entered allowing the father to have supervised visitation with le children at the Acworth Police Department. On March 1, 1999, e father was ordered to pay $112.50 instanter for child support and . the nineteenth day of each month to pay an additional sum of ,00. The $112.50 was paid by Victory House. Between March 1, 199, and November 8, 2000, the date of the termination proceeding, le father paid only $200-$250 toward his child support obligation.

Custody of the children continued in the great-grandmother. By August 19, 1999, the juvenile court was unable to determine where the mother was living. The father remained at Victory House. The great-grandmother had reported that C. F. was sexually and physically abusing his younger sister K. F. The children were separated, and C. F. was placed in foster care. K. F. remained with her great-grandmother. The whereabouts of the mother continued to be unknown until January 9, 2000, when she was reincarcerated for a felony probation violation. The mother testified that during such time period she was hiding to avoid arrest on the outstanding warrant. On February 1, 2000, the mother was sentenced to serve eighteen months of a five-year sentence.

Julie Medlin, Ph.D., a licensed psychologist, testified that she conducted court-ordered psychosexual evaluations of both children. During such evaluations, C. F. admitted sexually touching K. F. many times. C. F. stated that he had seen his parents having sex and had viewed pornographic movies and magazines. C. F. also indicated that K. F. had been sexually abused by the father. C. F. further stated that “his father may have touched him sexually when he was a baby.” When Dr. Medlin prompted C. F. for more information, C. F. retracted this statement. However, later in the evaluation he said, “I think Dad did sexually abuse me.”

Dr. Medlin testified that K. F. reported that she had been sexually abused by both her father and C. F. K. F. however refused to elaborate on the sexual abuse by her father because “her great-grandmother would whup her.” Based on Dr. Medlin’s evaluation, on August 4, 2000, K. F. was removed from the great-grandmother’s home and her father’s visitation was suspended. Dr. Medlin further testified that a psychosexual evaluation was ordered on the father. While the father came to her facility on July 13, 2000, and completed a portion of the test, he did not return for the remainder of the test despite several telephone calls to him to do so.

Virginia Goldstein, a licensed social worker testified that starting in March 1999, she provided weekly in-home counseling to the children. During these counseling sessions, K. F. often focused on domestic violence and abuse and worried about not being able to protect her mother from abuse by the father. At the termination hearing, both parents admitted domestic violence had occurred while they were living together. The mother testified that she had initially moved to Georgia with the two children because of the mental, verbal, and physical abuse directed at her by the father. K. F. also reported to Goldstein that she had observed her parents having sex. K. F. additionally stated to Goldstein that her father had stripped her of her clothing and stared at her and that, when she was in the bathroom while her father bathed, she rubbed her father’s back, buttocks, and “front privates.” K. F. also told Goldstein that she had been sexually abused by C. F. C. F. also reported to Goldstein that he had observed sexual acts between his parents and that he had viewed sexual materials (a magazine and a movie) while visiting relatives in New York. C. F. admitted to Goldstein that he had been involved in sexual behavior with K. F.

K. F.’s current foster mother testified that K. F. had been living in her home since the end of July 2000. The foster mother testified that about three weeks after K. F.’s arrival, she once observed K. F. engaged in inappropriate sexual behavior with another female foster child placed in her home. In addition the foster mother testified that, when K. F. first began residing in her home, she was prone to temper tantrums, had problems in school, and needed a lot of attention, but that K. F.’s attitude and school performance had improved recently. Jennifer Hagood, K. F.’s kindergarten teacher, also testified that K. F. had temper tantrums and that K. F. would curl up on the floor in a ball and scream, which was completely out of the norm.

Rebecca Eads, a DFCS caseworker, testified that the children’s mother told her that K. F. had walked into the room while she and the father were having sex and that the father refused to stop and stated “that was how his children should learn.” Eads testified that the mother denied that C. F. had ever been in the room when they were having sex, but stated that C. F. had been exposed to “sexual videos” when he was at a friend’s house. At trial, both the mother and the father admitted that one or both of the children had walked in the room when they were having sex, but stated that the children were told to leave the room.

The children’s maternal great-grandmother testified that, while the children were living with her, K. F. told her that her father undressed her and stood her on the coffee table and looked at her, and that when her father took a shower, he took her into the bathroom with him. The great-grandmother also testified that, when K. F. came to five with her, K. F.’s two front teeth were jagged and cracked requiring their removal, and that K. F. told her that they were broken when K. F.’s father knocked K. F. down the steps.

At the time of the termination proceedings, the father was living and working at Victory House. While there was testimony that he had completed Victory House’s drug program approximately one year earlier, the program was not run by certified counselors, let alone certified substance abuse counselors. Further, the father had not been given any drug screening tests by Victory House. While the father possessed marketable computer skills, he elected to remain at Victory House in an essentially unpaid position. The only housing he had was an on-site house provided by Victory House. Held:

The evidence presented amply supports the juvenile court’s decision to terminate the father’s parental rights to C. F. and K. F

The termination of parental rights under OCGA § 15-11-94 involves a two-step analysis.

First, the juvenile court must determine whether there is [present] clear and convincing evidence of parental misconduct or inability, as defined in OCGA § 15-11-94 (b). Parental misconduct is found when the child is deprived, the cause of deprivation is lack of proper parental care or control, the cause of the deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether the termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

In the Interest of J. J. W., 247 Ga. App. 804 (545 SE2d 21) (2001).

1. (a) As the father “did not appeal the original order of the juvenile court finding that his children were deprived, he cannot now complain about that finding.” (Citations and punctuation omitted.) In the Interest of N. J. W., 233 Ga. App. 130, 133 (1) (a) (503 SE2d 366) (1998). Such unappealed deprivation order establishes that C. F. and K. F. are deprived within the meaning of OCGA § 15-11-94 (b) (4) (A) (i). See In the Interest of A. W., 240 Ga. App. 259, 262 (523 SE2d 88) (1999).

(b) Further, the juvenile court had sufficient evidence to determine that the father’s inability to adequately care for his children was the cause of the children’s deprivation. It is well established that lack of proper care may be established by showing, “past physical, mental, or emotional neglect of the child or of another child by the parent.” (Citation and punctuation omitted.) In the Interest of M. L. P., 236 Ga. App. 504, 506 (1) (b) (512 SE2d 652) (1999); OCGA § 15-11-94 (b) (4) (B) (v).

[W]here the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

OCGA § 15-11-94 (b) (4) (C).

In this case, C. F. and K. F. were subjected to sexual abuse, inappropriate sexual activity and materials, domestic violence, and substance abuse while living with the father. Further, the evidence shows that the father has failed to support his children. When the children were originally taken into custody, the father was both jobless and homeless. Since the father moved to Georgia, he has not had permanent employment, but has worked temporary jobs which he would quit because of depression. Since the children came into DFCS’s custody, the father has paid only $200 to $250 in child support. At the time of the termination proceedings, the father still did not have stable housing. He continued to live and work at Victory House, even though he had graduated from that program. For the past three or four months he had resided in a house owned by Victory House, which was near their other facilities. The father testified that Victory House paid him $450 bi-weekly, but he did not receive any of the money because Victory House retained it for providing him room, board, and legal expenses. The father farther testified that he had no current plans to leave Victory House to seek employment elsewhere. Further, the father admitted at trial that the environment he was living in was not appropriate for a female child and that he was in no position to care for K. F. The father also testified that he felt it would be in K. F.’s best interest to remain in her current foster home. In addition to not completing the court-ordered psychosexual evaluation, the father also admitted that he had failed to submit to regular, random drug testing, and that Victory House had not performed any drug screening since he had been in their program.

In addition, the evidence shows that the father did not attempt to legitimate the children until the same week DFCS commenced termination proceedings against him. Moreover, K. F.’s foster mother and Misti Pope, the DFCS caseworker currently assigned to the children and who supervised their recent visitation with their parents, testified that neither of the children appeared to have any significant bond with their father. The great-grandmother testified that the behavior of both children was worse after visits with their father. Such evidence provides a clear and convincing basis for the finding that C. F.’s and K. F.’s deprivation was caused by their father’s inability to care for them.

(c) The evidence also supports the finding by the juvenile judge that the deprivation is likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of V. S., 230 Ga. App. 26, 29 (1) (495 SE2d 142) (1997). The court was entitled to infer from the evidence that the same pattern of deprivation would continue if C. F. and K. F. were reunited with their father.

The father failed to complete the court-ordered psychosexual evaluation. Even though the father had completed Victory House’s program a year earlier, the program was not run by certified counselors, let alone certified substance abuse counselors. Further, the father has no plans to leave Victory House, and he does not receive any actual money from Victory House for his employment there. The father further testified that he has no savings or any way to support the children or pay child support absent Victory House’s continued support, and that the only way he can pay child support is through conducting a special “fund raising” for such purpose. While the father testified that he might be able to start some type of business in about six months, it is well established that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of M. L. P., supra at 509 (1) (c).

Decided October 3, 2001.

Culp & Smith, John C. Culp, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Sanders B. Deen, for appellee.

(d) We also find clear and convincing evidence that the children are likely to be seriously harmed by the continued deprivation.

Both Dr. Medlin and Goldstein have diagnosed both children with psychological disorders and problems, which were evidenced in their behavior about which Hagood, K. F.’s foster mother, and the great-grandmother testified. Further, the father has interfered with the children’s psychological counseling by telling them not to talk to the various therapists. Further, C. F. stated to Goldstein that if his father abused him in the future, he would not report the abuse.

2. Finally, “[i]n determining that [termination of] the [father’s] parental rights would serve the best interests of the children, the court properly concerned itself with the need for stability in [the children’s] lives.” In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997). At the time of the termination hearing, both children had been in the custody of DFCS for almost three years. The father testified that he still was not ready to assume the care of K. F. and felt it was appropriate for her to remain in foster care. While the father testified that he felt he was ready to assume the custody and care of C. F, he still did not have a paying job or housing outside the on-site housing provided by Victory House. K. F. is doing well in her current foster home, and her foster mother testified that she was interested in adopting K. F. Further, “[t]he same factors which prove a parent’s inability to properly raise [his] children may also serve to show that termination of parental rights would be in the children’s best interests. [Cit.]” In the Interest of V. S., supra at 30 (1). Thus, there was clear and convincing evidence that termination of the father’s parental rights was in C. F.’s and K. F.’s best interests.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The mother’s parental rights to C. F. and K. F. were also terminated. However, the mother is not a party to this appeal.

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (a); In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).


author: Barnes, Judge.

text:
    A01A1129.
    CLARK v. THE STATE.
    (555 SE2d 88)
   Barnes, Judge.

Billy R. Clark appeals his convictions for insurance fraud and forgery in the first degree. Clark contends the verdict is contrary to, was not supported by, and was against the weight of the evidence (enumerations of error 1 through 3). He contends the trial court erred by denying his motion for a directed verdict (enumeration 4), by denying his motion for a new trial (enumeration 5), by charging the jury on conspiracy (enumeration 6), on presence, companionship and conduct (enumeration 7), on charges concerning the co-defendant, his wife (enumeration 8), and by referring in the charge to counts of the indictment that did not pertain to him (enumeration 9). He also contends the trial court erred by denying the jury’s request to review the testimony of a witness (enumeration 10).

1. Examination of Clark’s appellate brief shows that he has not presented reasoned argument or citation of authority to support enumerations of error 6 through 10. Therefore, these enumerations of error are deemed abandoned. Court of Appeals Rule 27 (c) (2); Carter v. State, 248 Ga. App. 821, 824 (4) (547 SE2d 613) (2001).

Moreover, Clark waived any alleged errors concerning the jury charge because the transcript shows that the trial court specifically questioned Clark’s counsel whether he had any objection to the charge and he responded, “None, your honor.”

The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given. Therefore, [Clark] waived his right to raise this objection on appeal. If a substantial error in the charge was harmful as a matter of law, we will review it regardless of whether or not an objection was made. OCGA § 5-5-24 (c). However, [Clark] has not shown that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he was deprived of a fair trial.

(Citations and punctuation omitted.) Bailey v. State, 246 Ga. App. 337-338 (540 SE2d 298) (2000).

Additionally, after the trial court informed the jury that it was unable to provide the jury with a copy of the witness’ testimony they requested, Clark did not object to this ruling. Therefore, Clark waived the right to raise this issue on appeal. McLelland v. State, 203 Ga. App. 93, 96 (10) (416 SE2d 340) (1992).

2. Clark’s allegations regarding the sufficiency of the evidence are measured by the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), when the sufficiency of the evidence is challenged either through appealing the denial of a directed verdict or the denial of a motion for new trial. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). His allegations that the verdict is contrary to and strongly against the evidence, however, do not fall within the jurisdiction of this court.

The denial of a motion for new trial on these grounds addresses itself to the discretion of the trial judge. On appeal, this Court only reviews the evidence to determine if it is sufficient to support the verdict. This is a question of law, not discretion. The evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Citation omitted.) Pettus v. State, 237 Ga. App. 143 (1) (514 SE2d 901) (1999). When measuring the sufficiency of the evidence to support the verdict, we neither weigh the evidence nor judge witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed most favorably to the verdict, the evidence shows that Clark and his wife operated a grading business. After they found work as a subcontractor, the general contractor requested proof of workers’ compensation insurance. Clark said that they did have it, but, after attempts to avoid providing proof of workers’ compensation insurance failed, Mrs. Clark faxed the general contractor a certificate showing that they had workers’ compensation insurance. The general contractor, however, recognized that the certificate sent him by the Clarks was not genuine. The insurance agent allegedly providing the certificate testified that he did not issue the certificate to Clark, and that this certificate had been issued to Clark’s brother and had been altered. When the general contractor confronted him about this, Clark said that he believed the certificate was valid. Mrs. Clark told him maybe this whole thing was just a joke.

Decided October 4, 2001.

William P. Millisor, for appellant.

Philip C. Smith, District Attorney, for appellee.

This evidence is sufficient to support Clark’s conviction for forgery in the first degree in violation of OCGA § 16-9-1 (a) by, with intent to defraud, knowingly possessing a writing in such manner that the writing as altered purports to have been made with the authority of one who did not give such authority and utters or delivers such writing and for insurance fraud in violation of OCGA § 33-1-9 (a) (3) by issuing a fake or counterfeit workers’ compensation insurance certificate. Indeed, Clark’s appellate brief admitted that there “is no question in this case that the forgery and insurance fraud occurred,” but contended the evidence does not show that he committed the fraud. We disagree.

The evidence shows that Clark and his wife operated the business together, that he represented that they had workers’ compensation insurance when he knew that they did not, that he represented that they would send a certificate of insurance, and that his wife then faxed the certificate to the person Clark had promised the certificate. This is sufficient evidence from which any rational factfinder could conclude that Clark was guilty within the meaning of Jackson v. Virginia, supra.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       Although jointly indicted for these offenses, Mrs. Clark absconded after arraignment and is not a party to this appeal.

       OCGA § 33-1-9 (a): “Any natural person who knowingly or willfully: ... (3) Issues fake or counterfeit insurance policies, certificates of insurance, insurance identification cards, or insurance binders . . . commits the crime of insurance fraud.”