author: Benham, Judge.

text:
    76328.
    76329.
    McKENZIE v. THE STATE. AMBLER v. THE STATE.
    (371 SE2d 869)
   Benham, Judge.

Appellants were named in a 35-count indictment as the perpetrators of a series of burglaries and sexual assaults that occurred between June 28 and July 18,1986, against four women victims residing in Houston County. McKenzie was convicted and sentenced on 23 of the counts with which he was charged, and Ambler was convicted and sentenced on 22 counts. Each has filed a separate appeal.

1. Ambler contends the evidence presented by the State was insufficient to support the guilty verdicts returned against him, and McKenzie claims error in the denial of his motion for a directed verdict of acquittal. Under Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984), the standard of review when the sufficiency of the evidence is challenged is the same, whether the challenge has as its basis the denial of a motion for directed verdict of acquittal or the denial of a motion for new trial based on insufficient evidence.

The first victim, a 14-year-old, testified that she was blindfolded and awakened in the middle of the night by someone shaking her. She was hit on the face, and two men took turns having sexual intercourse with her against her will. A sharp instrument was held to her throat when she refused to perform acts of sodomy. The victim stated that she was held down on her bed and was not free to leave during the ordeal. Jewelry belonging to the victim’s mother was taken. It was determined that the assailants gained entry to the victim’s home through a utility room window and the back door, without the victim’s permission. In a statement made to police after his arrest, Ambler admitted having had sexual intercourse with the first victim and having taken property from that residence. The physician who examined the victim testified that she had cervical abrasions consistent with a forceful sexual act. The evidence was sufficient to support the jury’s conclusion that Ambler was guilty of burglary, rape, aggravated assault, false imprisonment, and theft by taking with regard to the first victim. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-8-2.

The second victim testified that two masked, naked men entered her bedroom in the early morning hours and each had sexual intercourse with her against her will. Her assailants then pulled her into the bathroom, where she was forced to undergo anal intercourse against her will. Her assailants attempted to have her perform an act of oral sodomy, during which her mouth came into contact with the sex organ of one of her assailants. The victim saw a silver blade in the hands of the taller of the two attackers, and it was used to threaten her and her sleeping children, one of whom awakened during the victim’s three-hour sexual assault. The victim testified that she suffered bruises on her elbows and knees from the assault. She stated that one assailant was circumcised and the other was not, and she identified fingerless gloves found in a dresser drawer in McKenzie’s home as similar to the gloves worn by one assailant, and blue tennis shoes found at McKenzie’s home as similar to the shoes put on by the taller assailant after the attack. She testified that the two men drank her beer, smoked her cigarettes, and took her jewelry, as well as funds she had collected on behalf of a deceased fellow employee. The victim stated that she had not given her assailants permission to enter her home, or to have vaginal, anal, or oral intercourse with her. The examining physician testified that his examination of the victim’s anal and vaginal areas resulted in findings consistent with “traumatic sex.” Ambler’s palm print was lifted from the victim’s bathroom. In his statement to police, Ambler admitted that he was present in the victim’s home, and that his companion sexually assaulted the victim but that he did not. He admitted that funds collected by the victim on behalf of a deceased co-employee were taken. In his statement, McKenzie admitted having had sexual intercourse with the victim but denied taking anything from the house. A police officer testified that Ambler was circumcised and McKenzie was not. The evidence was sufficient to convict both appellants of burglary, rape, aggravated assault, aggravated sodomy, false imprisonment, kidnapping, theft by taking, armed robbery, and possession of a knife during the commission of a crime. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-6-2; 16-5-41; 16-5-40; 16-8-2; 16-8-41; 16-11-106; Williams v. State, 178 Ga. App. 581 (344 SE2d 247) (1986). However, the jury was not authorized to return a verdict of guilty of sodomy in Count 12 because that count charged appellants with aggravated sodomy, and the trial court had not instructed the jury on returning a verdict on an included offense. Compare Moyer v. State, 164 Ga. App. 629 (298 SE2d 308) (1982). Accordingly, appellants’ convictions for sodomy must be stricken.

The third victim testified that two men dressed in shorts and ski masks entered her home without permission between 12:45 and 1:00 a.m. She testified that a ski mask discovered in a dresser drawer in McKenzie’s home looked like the masks worn by the intruders, and the blue tennis shoes found at McKenzie’s home “definitely” looked like the shoes worn by the taller of the two men. The victim testified that the taller man held a knife during most of her ordeal and, at times, it was placed against her throat. She was pushed by the two men from the hall, where she discovered their presence, to her bedroom, where she was forced to submit to nonconsensual acts of sexual intercourse. She was forced at knife point to disrobe and place her mouth upon the sexual organ of one of her assailants. After two hours, the intruders tied the victim to her bed and left, taking jewelry, a camera, and her car. The car, after sustaining $800 damage, was returned later that morning. A ring taken from Ambler at the time of his arrest was identified by the victim as looking like her ring, and she identified as her camera one that was found in the dresser drawer in McKenzie’s home. The examining physician testified that the victim had ankle and wrist bruises consistent with being bound, and external genitalia redness consistent with recent sexual intercourse. In his statement to police, Ambler stated that two friends in a car picked him up and drove him to the victim’s residence, where he took flashlights and juice. Ambler’s fingerprints were found on the passenger side of the victim’s car. McKenzie denied being present at the victim’s home. The jury convicted McKenzie of burglary, rape, aggravated assault, false imprisonment, kidnapping, aggravated sodomy, theft by taking, and possession of a knife during the commission of a crime. Ambler was convicted of burglary and of theft by taking. The evidence was sufficient to support the verdicts rendered by the factfinder. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-5-40; 16-6-2; 16-8-2; 16-11-106.

The fourth and final victim testified that four men, one wearing a stocking mask and three with their shirts pulled over their heads, entered her apartment without her permission. While three of the intruders took turns forcing her to submit to sexual intercourse, the fourth ransacked her home. A wire and a “shiny blade” that resembled a knife were in her assailant’s hands, and she was not permitted to leave. A radio, calculator, camera, food, and other small items were taken from her home. She identified as hers a radio recovered from the storage shed at McKenzie’s residence. The examining physician described various hematoma suffered by the victim and testified that the results of a pelvic examination were consistent with violent and forced sex. A person also indicted for the crimes committed against the fourth victim testified that he saw McKenzie engage in sexual intercourse with the victim. In his statement, McKenzie admitted having had sexual intercourse with the victim but denied taking any property. In his statement, Ambler admitted that he had been in the victim’s apartment and had taken a radio, but denied having engaged in sexual intercourse with the victim. Hairs found in the victim’s bed linens and clothing were “microscopically consistent with” McKenzie’s head and chest hair, and Ambler’s pubic hair. There was sufficient evidence for a rational trier of fact to convict appellants of burglary, rape, aggravated assault, false imprisonment, and theft by taking. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-8-2. However, appellants’ convictions for kidnapping the fourth victim must be reversed because there was no evidence of asportation of the victim. OCGA § 16-5-40 (a); Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982).

2. Appellant Ambler urges suppression of his statement to police, his fingerprints, and his body hair samples on the ground that he was arrested without probable cause.

One of the assailants in the fourth attack identified McKenzie and a man named Mike, whom he believed was staying with McKenzie, as participants in the assault. The victim of the second assault had earlier told police that one of her assailants called the other “Mike.” An officer went to McKenzie’s home to talk with him, and was told by McKenzie’s grandmother that McKenzie and “Mike” were in a rear bedroom. No one was in the room when the officer entered it. The grandmother described McKenzie’s and Mike’s attire, and the officer left the premises and drove to an area behind the McKenzie home. Within minutes, two males wearing the described clothing came running from the rear of McKenzie’s home. The waiting officer arrested both men when they reached him. One was McKenzie and the other was Michael Ambler. We agree with the trial court that appellant Ambler’s warrantless arrest was based on probable cause, and it was not error to admit into evidence appellant Ambler’s statement, fingerprints, and hair samples.

3. After his arrest, appellant Ambler was taken to the police station for questioning where he made an inculpatory statement. The transcript of the post-arrest interrogation revealed that the two questioning officers told Ambler they “were trying to see if you want to help yourself” and asked him, “Do you want to help yourself? It’s up to you.” When asked about their remarks, the officers testified at the motion to suppress hearing that they were trying to tell Ambler they wanted him to be truthful and that he was better off being truthful. Appellant Ambler now maintains that the incriminating statement should not have been admitted because it was induced by the hope of a benefit. See OCGA § 24-3-50.

OCGA § 24-3-50 provides that a confession is not admissible unless it was made voluntarily, “without being induced by another by the slightest hope of benefit or remotest fear of injury.” “A reward of lighter punishment is generally the ‘hope of benefit’ to which [OCGA § 24-3-50] refers. [Cit.] ‘For an officer to advise an accused that it is always best to tell the truth will not, without more, render a subsequent confession inadmissible under [OCGA § 24-3-50]’ [Cits.] Nor will advice from an officer that the suspect will feel better if he tells the truth render a confession inadmissible under [OCGA § 24-3-50].” Caffo v. State, 247 Ga. 751, 757 (279 SE2d 678) (1981). See also Cooper v. State, 256 Ga. 234 (2) (347 SE2d 553) (1986). Appellant was not told that telling the truth would help him in court. See Askea v. State, 153 Ga. App. 849 (3) (267 SE2d 279) (1980).

4. Appellant McKenzie contends his incriminating statement should have been suppressed because the Miranda rights were not reread to him before he made the statement and because the statement was induced by hope of benefit, in violation of OCGA § 24-3-50.

It is unquestioned that McKenzie was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to being questioned, and that 12 minutes into the taped interview, the interrogating officer concluded the interview and turned off the tape recorder. A series of law enforcement officers, one or two at a time, continued to question appellant McKenzie, who made the incriminating statement approximately one hour after the initial questioner announced the interview was concluded. Shortly before McKenzie made the statement at issue, one of the officers told him that “if he talked with us we would make it known to the court . . . the District Attorney and the judge . . .”

The failure of each new interrogator to inform appellant of his Miranda rights was not error in view of the continuing nature of the interrogation and the short time span between the giving of the Miranda warnings and appellant’s statement. Akers v. State, 179 Ga. App. 529 (1) (346 SE2d 861) (1986). See also Jones v. Francis, 252 Ga. 60 (5) (312 SE2d 300) (1984). Offering to make known a suspect’s confession to the district attorney and the trial judge is not an offer of benefit. See Rounds v. State, 166 Ga. App. 212 (2) (303 SE2d 543) (1983). The trial court did not err in admitting McKenzie’s statement.

5. Appellant Ambler maintains that suppression of his incriminating statement was in order because he had made an equivocal request for counsel prior to making the incriminating statement. See Hall v. State, 255 Ga. 267 (1) (336 SE2d 812) (1985).

The tape recording of the police interview was transcribed separately by the police department and the district attorney’s office. After reading the Miranda rights to Ambler, the detective explained to appellant what he had read. The detective then asked, “Okay, do you want to talk with us at this time without having a lawyer present here?”; and appellant responded, “I can talk to you.” The detective then said, “Well if you want to talk to us, I need you to sign right here, all that’s saying is that you do want to talk with us right now.” Then, according to the police department’s transcript, Ambler said, “Not until I get a lawyer. What it saying do I get a lawyer?” The district attorney’s transcript reads: “Not until I get a lawyer? What you saying, until I get a lawyer?”; to which, in both transcripts, the detective responded, “No, no, if you want to talk to us right now, then we’ll go ahead and talk . . .” Appellant then executed the waiver of rights form. At the suppression hearing, both the questioning detective and another detective who witnessed the discussion testified that they believed appellant was asking whether he could speak to them without the presence of an attorney. The trial court listened to the tape several times and agreed that it was clear from the pitch of appellant’s voice that he was asking a question.

“An accused in custody, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless he validly waives his earlier request for the assistance of counsel. [Cit.] This rigid prophylactic rule [cit.] embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. [Cit.] (whether accused ‘expressed his desire’ for, or ‘clearly asserted’ his right to the assistance of counsel); [Cit.] (whether accused indicated in any manner and at any stage of the process that he wished to consult with an attorney before speaking). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. [Cits.]” Hall v. State, supra.

We agree with the trial court’s implicit ruling that appellant had not explicitly, equivocally, or ambiguously invoked his right to counsel and, in fact, executed a waiver of that right upon hearing the detective’s explanation that he could talk with police without having an attorney present. It was not error to admit Ambler’s statement.

6. One of the detectives involved in this case testified that he followed up on another suspect’s identification of appellant McKenzie as a perpetrator of the fourth assault by having the suspect “look at the mug books — rather a dozen photos out of my mug books. He picked . . . Mr. McKenzie . . . out. I didn’t have Mr. Ambler’s picture in there at that time.” McKenzie’s attorney immediately sought a mistrial on the ground that the detective’s testimony had impermissibly placed McKenzie’s character into evidence. McKenzie contends the trial court committed reversible error by denying the motion for mistrial.

Citing Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982), McKenzie maintains that the detective’s reference to mug books placed McKenzie’s character in evidence, and was harmful error due to the trial court’s failure to give curative instructions. In Stanley, a case involving the same district attorney presently before us, the Supreme Court held that the testimony taken as a whole, wherein repeated references were made to mug books, and the testifying detective, in response to a question asked by the district attorney, described mug books as “pictures of individuals that we have had previous cases on,” placed the defendant’s character in evidence because it identified the defendant as having a prior record of a criminal offense or offenses. Id. at 4. However, the Supreme Court held that the immediate action taken by the trial court, ruling out the offensive testimony and instructing the jury to disregard it, rendered the error harmless. McKenzie maintains his conviction must be reversed since his character was placed in evidence and the trial court took no corrective action.

While it is undisputed that no corrective action was taken, we are of the opinion that McKenzie’s character was not placed in issue. The disputed question and answer in Stanley concerned a description of a mug book. Mere reference to the mug book was not held to place a defendant’s character in issue in Stanley; rather, it was the testimony that went beyond mere reference and went into a description of the contents of a mug book that was held to have placed Stanley’s character in evidence. Since in the present case the detective made only a passing reference to the mug books and did not describe the contents thereof, McKenzie’s character was not impermissibly placed in evidence.

7. Appellants contend the trial court committed reversible error by instructing the jury that the State was not required to prove the guilt of the accused beyond a reasonable doubt. The court reporter submitted a corrected transcript which reflects that the jury was told that the State was not required to prove the guilt of the accused beyond all doubt. Therefore, the error of which appellants complain did not occur.

8. Each appellant contends it was error for the trial court to deny his motion to sever. Abuse of discretion amounting to a denial of due process must be shown before a trial court’s decision on a motion to sever in a non-capital felony case will be overturned. Kennedy v. State, 177 Ga. App. 543 (2) (340 SE2d 204) (1986). Both defendants were charged in each count of the 35-count indictment. McKenzie maintains that he was convicted of the crimes against the second and third victims solely on evidence of Ambler’s participation. However, clothing similar to that worn by one perpetrator and property stolen from the third victim were found in a drawer in McKenzie’s home; McKenzie’s tennis shoes were identified by both victims in question as having been worn by one of the assailants; and McKenzie admitted having had sexual intercourse with the second victim. It can hardly be said that McKenzie’s convictions were without a separate foundation.

McKenzie contends the admission of Ambler’s confession was so harmful to him that the trial court should have severed his trial. While a police officer testified concerning the contents of Ambler’s confession, reference to other participants was replaced with the phrase “another subject,” and the trial court informed the jury that any statement by a defendant was admissible only against the maker. Contrary to McKenzie’s assertion, no Bruton error occurred. Fortner v. State, 248 Ga. 107, 109 (281 SE2d 533) (1981).

In support of his motion to sever, Ambler argues that a witness called to testify against McKenzie implicated Ambler in the rape of the 14-year-old victim. Even if Ambler’s assertion is taken as true, he has shown no harm inasmuch as he admitted in his statement to police that he had engaged in sexual intercourse with the 14-year-old victim and had taken property from her residence, and the victim testified that the intercourse and removal of property were without her consent. The trial court did not err in denying the motions to sever.

9. Appellant McKenzie claims error in the trial court’s failure to rule on his motion to reveal the deal the State allegedly had made with one witness.

“The [S]tate is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a ‘failure to disclose such an agreement constitutes a violation of the due process requirements of Brady v. Maryland.’ [Cits.]” Jolley v. State, 254 Ga. 624 (5) (331 SE2d 516) (1985). Prior to testifying, the witness stated that no arrangement or deal had been made by his attorney and the district attorney in exchange for his testimony, and on cross-examination the witness testified that no deal had been promised him. Even if the failure to rule on the motion is taken as a denial thereof, the action is supported by the evidence and does not constitute a due process violation. Id.

10. After being arrested and questioned by police, appellant McKenzie’s shoes were taken from him. A detective agreed to go to McKenzie’s home to get another pair of shoes for him. After receiving a pair of shoes from one of McKenzie’s relatives, the detective saw a pair of blue canvas tennis shoes located outside the home “on the stoop of the driveway.” He seized them and they were subsequently introduced as evidence against McKenzie, who contends the shoes were illegally seized.

“It is the general rule that a warrant is required to search the curtilage, and the yard immediately surrounding one’s dwelling is well within the curtilage. [Cits.]” Phillips v. State, 167 Ga. App. 260 (la) (305 SE2d 918) (1983). However, if an item, apparently evidence or contraband, is seized after being inadvertently discovered by an officer who saw it during a valid intrusion upon the property, the item falls within the “plain view” doctrine and may be seized without a warrant. State v. Lyons, 167 Ga. App. 747, 748 (307 SE2d 285) (1983). Since two victims had described one of their assailants as having worn blue canvas tennis shoes, the officer recognized the shoes as evidence and seized them as soon as he saw them. The officer was validly on the property, having gone, with appellant McKenzie’s agreement, to McKenzie’s home to retrieve a pair of shoes McKenzie had arranged with a relative to have ready for the officer. Since all three of the “plain view” criteria were met, the trial court did not err in denying McKenzie’s motion to suppress.

11. The State called as a witness a man who was charged in the July 18th attack and was incarcerated with appellant McKenzie. In response to the district attorney’s inquiries, the witness stated that while incarcerated he had asked McKenzie if he and Ambler had ever raped anyone before and that McKenzie had replied that “[Ambler] had told the detectives, that [McKenzie] was with [Ambler] whenever [Ambler] raped a 14-year-old girl.” Appellant McKenzie moved for a mistrial on the grounds that, despite his request, he had not been furnished with a copy of this statement made by him while he was in police custody. OCGA § 17-7-210. The trial court denied appellant’s motion and instructed the jury to disregard the witness’ response concerning statements made to him by appellant while in custody. McKenzie contends it was error to deny his motion for mistrial.

OCGA § 17-7-210 provides that at least 10 days before trial, a requesting defendant is entitled to a copy of any statement given by him while in police custody; that if the defendant’s request precedes the discovery of a statement, the evidence shall be produced as soon as possible after its discovery; and that failure of the prosecution to comply with a defendant’s request “shall result in such statement being excluded and suppressed from the prosecution’s use in its case-in-chief or in rebuttal.” OCGA § 17-7-210 (c).

Asserting that he had been apprised of the witness’ jailhouse conversation with McKenzie only the evening before the witness testified, the district attorney contended the evidence was newly discovered. The ensuing discussion revealed that the trial had resumed the same evening of the discovery, and that defense counsel had not been made aware of the existence of the statement.

The trial court correctly instructed the jury to disregard the offending portion of the witness’ testimony. OCGA § 17-7-210 was applicable since the statement made by McKenzie to the witness was given while appellant was in police custody. Walraven v. State, 250 Ga. 401 (2) (297 SE2d 278) (1982). See also Reed v. State, 163 Ga. App. 364 (2) (295 SE2d 108) (1982). Denying the motion for mistrial was not error in light of the statute’s call for suppression, a goal successfully accomplished by the trial court’s curative instructions.

12. Both appellants contend the trial court erred by giving a jury charge on flight. The trial court instructed the jury that should it find flight or attempted flight to have occurred, it could then consider whether or not to draw an inference of guilt from that flight, but that the fact of flight was subject to explanation.

The State based its request for the charge on flight on evidence that appellants ran from the rear of McKenzie’s residence and across the backyard when law enforcement officers approached the front of the residence. Contrary to appellant’s assertions, the charge was authorized by the evidence (see Powers v. State, 168 Ga. App. 642 (5) (310 SE2d 260) (1983)); and was not burden-shifting. Lingerfelt v. State, 255 Ga. 180 (5) (336 SE2d 250) (1985).

Judgments affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.

Decided June 23, 1988

Rehearings denied and dismissed July 15, 1988

Jeffrey L. Grube, for appellant (case no. 76328).

Stephen N. Hollomon, for appellant (case no. 76329).

G. Theron Finlayson, District Attorney, for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    76578.
    THOMAS B. HARTLEY CONSTRUCTION COMPANY v. LIBERTY LIFE INSURANCE COMPANY.
    (371 SE2d 657)
   Banke, Presiding Judge.

The appellant corporation sued to recover a $37,000 earnest money payment it had made to the appellee contemporaneously with the execution of a real estate sale contract. The appellee had declined to return any portion of the payment (which represented approximately 10 percent of the $373,500 sale price specified in the contract) in reliance upon the following contractual provision: “In the event buyer elects not to close this contract on or before the specified closing date, then in such event the earnest money will be forfeited as full liquidated damages to seller.” The trial court granted summary judgment to the appellee on the basis of this provision, rejecting the appellant’s contention that such a forfeiture would constitute an unenforceable penalty. This appeal followed. Held:

1. “A contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach.” Broadcast Corp. of Ga. v. Subscription &c. Atlanta, 177 Ga. App. 199, 199-200 (338 SE2d 775) (1985).

“[Wjhether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable. (Cit.) Where the parties do not undertake to estimate damages in advance of the breach . . . the amount, even though called liquidated damages, is instead an unenforceable penalty. (Cit.)” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 228 (227 SE2d 340) (1976). “ ‘[I]n cases of doubt, the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damage actually shown, rather than a liquidation of the damages.’ ” Id. at 231, citing Mayor &c. of Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 728 (62 SE 475) (1908).

An examination of the record in this case reveals no basis for a conclusion that the $37,000 earnest money payment represented a reasonable pre-estimate by the parties of the probable loss the appellee might be expected to suffer in the event of the appellant’s failure to close the transaction. The only evidence submitted by the appellee in this regard consisted of an affidavit, executed by the individual who had acted as its attorney-in-fact in signing the contract, averring that the sum in question represented an accurate pre-estimate of the appellee’s probable loss for the following reasons: “First, the value of the land could have declined. Secondly, there are costs associated with ownership, such as interest and other administrative expenses. Thirdly, by taking the property off the market under a contract of sale, the potential loss of opportunity to sell the property to another buyer willing and able to purchase the property, would mean that it might take months or even years to find another buyer willing, ready and able to purchase the property. A 10 percent liquidated damage provision is not unusual in the real estate industry and is an accepted pre-estimate of damages.”

These factors quite clearly provide no basis for an estimate of the amount of the loss the appellee might reasonably be expected to suffer in the event of a breach of the contract by the appellant. “The ordinary measure of damages [for the breach of a real estate sales contract] is the difference between the contract price and the market value of the property at the time of the buyer’s breach.” Southeastern Land Fund v. Real Estate World, supra, 237 Ga. at 229. The only evidence in this case going to the issue of the amount of the appellee’s actual damages consisted of an affidavit submitted by the appellant averring that, within five months after the date the parties were to have closed the sale, the appellee had resold the property for $92,000 more than the $373,500 the appellant had agreed to pay for it. It follows that the record does not establish that the contractual provision in question constituted an enforceable liquidated damages provision, with the result that the trial court erred in granting the appellee’s motion for summary judgment.

2. We do not reach the issue of whether the appellant’s motion for summary judgment should have been granted, as it does not appear that the trial court entered any ruling on that motion.

3. We have carefully considered the appellant’s remaining contention — to the effect that there was a defect in the power-of-attorney pursuant to which the appellee obligated itself under the contract — and have determined that it is without merit.

Judgment reversed.

McMurray, P. J., Sognier, Pope, and Ben-ham, JJ., concur. Birdsong, C. J., Deen, P. J., Carley and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

When a contract is breached, “[d]amages are given as compensation for the injury sustained. . . .” OCGA § 13-6-1. Parties to a contract, recognizing that a breach might occur because the contract relates at least in part to future events, may agree in advance what they will consider the damages to be, so as to avoid a lengthy and costly dispute about them should a breach occur and additionally to let each party know how much a breach will cost. So, since “ ‘ “ [competent parties are free to agree to whatever provisions in lawful contracts that they may choose . . . [i]f the parties agree what the damages for breach shall be, the damages are liquidated, and unless the agreement violates some principle of law, the parties are bound thereby. [OCGA §§ 13-6-1, 13-6-7]”’ [Cits.]” Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980). See also Fortune &c. Co. v. Dept. of Transp., 242 Ga. 531, 533 (250 SE2d 401) (1978) for a similar articulation of the rule.

The contract involved here was for the sale of a number of lots in a residential subdivision by one commercial entity to another. The liquidated damages provision constituted the total amount which the seller could recover in case the buyer did not close within the sixty days specified. The agreed sum was $37,000, which was just short of 10% of the purchase price and constituted the earnest money so that nothing additional had to be paid or sought if breach occurred. The contract document also provided that it constituted the entire agreement between the parties.

This damages provision meets the tripartite inquiry set out by the Supreme Court in Southeastern &c. v. Real Estate &c., 237 Ga. 227, 230 (227 SE2d 340) (1976), which also examined a real estate sales contract.

1) The injury which would be caused by failing to close would be “difficult or impossible of accurate estimation.” As Chief Justice Hill points out in the dissent in Quigley v. Jones, 255 Ga. 33, 34 (334 SE2d 664) (1985), some of the anticipated damages from a breach of a real estate sales contract would be “(e.g., continued insurance coverage, utility bills, maintenance costs, ad valorem taxes, and loss of use of the proceeds of the sale).” While the property here was unimproved so that all of these expenses would not be incurred, taxes and the loss of use of proceeds would here be consequences of breach. The latter would not be insignificant, for the purchase price was to be paid in cash, with the result that the seller would be losing the use of $373,500 from not later than December 20 until whenever it could sell the property at whatever price. It would take economists to put a dollar value on the use opportunity for this cash from December 20 to whenever a sale for at least that amount closed with another buyer. Moreover, regardless of when the property was sold, or for how much, the determination of legally awardable actual damages would be problematic, because in a real estate contract breach, “[t]he ordinary measure of damages is the difference between the contract price and the market value of the property at the time of the buyer’s breach. [Cit.]” Southeastern, supra at 229; Quigley, supra at 33. Market value at the time of the breach would itself be subject to the varying opinions of experts who would have to reconstruct a past market, i.e., that of December 20, 1985, when making their evaluation.

2) It is patent that the parties “ intend [ed] to provide for liquidated damages rather than for a penalty.” They said so in plain English. Even though the label is not conclusive, the effect it was intended to have and its reasonableness satisfy this part of the test. See Southeastern, supra at 228. This was to be the sum total of the damages. It was not burdened with any pluses, as was the contract in Southeastern, which would give the non-breaching party legal damages in addition to the specified amount. In this regard, it is more akin to the provision enforced in Fortune &c. Co., supra, although the one in this case is even purer because it does not have the perceived ambiguity which raised a dissent. The seller in the instant case did not retain any right whatsoever to seek any damages provided by law, but bound itself exclusively to what the parties agreed, a concrete maximum.

As noted by the court in Southeastern, “both parties are bound by their agreement” so that each takes the risk that the liquidated amount may be more than the actual loss which occurs in the future: “A non-breaching party who has agreed to accept liquidated damages cannot elect after a breach to take actual damages should they prove greater than the sum specified. The breaching party cannot complain that the actual damages are less than those specified as liquidated damages.” Southeastern, supra at 230. Each side pays this price for the benefits of certainty. As the seller said by way of affidavit, “the value of the land could have declined.” For that reason, the fact that the property was eventually sold for a higher price is irrelevant.

3) The sum here, slightly less than 10% of the total sales price, is “a reasonable pre-estimate of the probable loss.” The factors mentioned above in discussing the first inquiry bear this out. They demonstrate that there are substantial actual losses and expenses arising from the delay in disposing of the property, marketing the property again, and bearing the costs of its ownership in the interim. As the seller said by way of affidavit, “the value of the land could have declined . . . there are costs associated with ownership, such as interest and other administrative expenses ... by taking the property off the market under a contract of sale, the potential loss of opportunity to sell the property to another buyer willing and able to purchase the property, would mean that it might take months or even years to find another buyer willing, ready and able to purchase the property ... a ten percent liquidated damage provision is not unusual in the real estate industry and is an accepted pre-estimate of damages.” None of this is refuted.

The majority puts the burden on the seller to show that the provision is not a penalty, but the law puts the burden on the defaulting party to show why it should not be bound by its agreement. “The defaulting party has the burden of proving the amount of the actual damages for the purpose of showing an absence of approximation between the actual loss and stipulated sum, and he has the burden of proving that the sum provided by the contract did not bear a reasonable relation to plaintiff’s actual damages or that they were exorbitant and unconscionable.” 25A CJS, Damages, § 144 (f). This principle is referred to in the separate opinion in Krupp Realty Co. v. Joel, 168 Ga. App. 480, 482 (309 SE2d 641) (1983), which concurred in part and dissented in part.

This is not a sum which must be said to have been “ ‘inserted into a contract for the purpose of deterring one or both of the parties from breaching it,’ ” which would make it a penalty. Broadcast Corp. of Ga. v. Subscription &c., 177 Ga. App. 199, 200 (338 SE2d 775) (1985). It is not “manifestly unreasonable or oppressive,” Gibson, supra at 579.

Consequently, the damages agreed upon by both parties, ironically in part so as to avoid a long and expensive lawsuit, should be enforced.

I am authorized to state that Chief Judge Birdsong, Presiding Judge Deen, and Judge Carley join in this dissent.

On Motion for Rehearing.

On motion for rehearing, the appellee complains that we have erroneously transferred to it the burden of establishing the enforceability of the earnest money forfeiture provision, rather than requiring the appellant, as plaintiff, to establish its unenforceability. It was the appellee who moved for summary judgment on the issue; and, on motion for summary judgment the burden is, of course, on the movant to establish its entitlement to judgment as a matter of law. See generally OCGA § 9-11-56; Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). Moreover, a different result would not be compelled in this case even if the burden of proof were on the appellant, for our holding is based not merely on the appellee’s failure to come forward with evidence from which it could be inferred that the earnest money payment reflected a reasonable pre-estimate of the amount of its expected loss in the event of a breach but also upon the appellant’s affirmative showing that the appellee actually benefited from the breach.

Decided June 22, 1988

Rehearing denied July 15, 1988

W. Courtney LaFon, Beverly J. Hall, for appellant.

John A. Howard, for appellee.

The appellee additionally complains that we have overlooked OCGA § 13-1-13, which provides, in pertinent part, that “[p]ayments of claims made . . . where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered. . . .” This statutory provision has not previously been asserted by the appellee as a defense to the present action, either in the lower court or in this court. In moving for summary judgment, the appellee relied upon the enforceability of the earnest money provision; and consequently that is what the lower court ruled upon. Thus, the effect, if any, of OCGA § 13-1-13 on the transaction is not before us in this appeal.


author: Deen, Presiding Judge. Carley, Judge,

text:
    76591.
    WICK et al. v. BARNES et al.
    (371 SE2d 443)
   Deen, Presiding Judge.

Appellants, Sally and Helen Wick, are the sisters of the late Harry Wick. Appellees are Wick’s widow, Louise Barnes Wick, and her son, Leland Barnes.

The evidence showed that on June 17,1983, seventy-five-year-old Harry Wick executed a power of attorney naming Leland Barnes his attorney-in-fact. On that date a $20,000 certificate of deposit was in the names of Harry Wick and his sisters. Leland Barnes, acting under the power of attorney, had the certificate of deposit reissued in the name of Harry Wick alone. Barnes claims that he made this change on Wick’s instructions. He also claims he changed the beneficiary on Wick’s insurance policy from his sister to his mother on Wick’s instructions.

The day Wick executed the power of attorney he suffered a stroke and was hospitalized. He died two months later. He left a will which bequeathed all his assets to his wife. The sisters filed suit against appellees alleging that the power of attorney was fraudulently obtained by Barnes and his mother who, they claim, exerted undue influence over Wick. A jury returned a verdict of $20,355.55 in favor of Sally and Helen Wick. After entry of the judgment, the trial court granted appellees’ motion for a judgment notwithstanding the verdict and, if it was reversed on appeal, then their motion for a new trial was granted. The Wick sisters appeal. Held:

The evidence showed that Leland Barnes and his mother never discussed the execution of a power of attorney with Harry Wick. Indeed, Louise Wick was admitted to the intensive care unit of a hospital some two days before the document was signed. Wick’s attorney, Richard Porter, who also drafted his will several months earlier, testified that Harry Wick telephoned him earlier in the day and asked him to prepare the power of attorney. Porter went to Wick’s home and explained it to him before Wick executed it. Porter and his secretary witnessed Wick’s signature. Porter was of the opinion that Wick was of sound mind, knew what he wanted to do and was not acting under duress or undue influence. The evidence further showed that neither Barnes nor his mother knew the contents of Wick’s will, or even that he had one, until they were contacted by Richard Porter after Harry Wick’s death because he left his executed will with his attorney. Other witnesses testified that they heard Wick say that he wanted all his assets to go to his wife upon his death.

A physician who treated Wick from July 7, 1983, until August 10, 1983, testified that from his treatment, observation, and review of Wick’s medical records, he believed that Wick was not competent to handle his business affairs after early June. The physician who admitted him to the hospital the day he suffered a stroke testified otherwise. He testified that Wick gave a meaningful medical history when he was admitted, and that he believed that Wick could have read and understood documents placed before him on June 17. This physician testified that Wick’s condition did not begin to deteriorate until the second day he was hospitalized when his right side ceased to function. Sally Wick admitted on cross-examination that her brother was competent on June 17, 1983, but claimed that he was tricked.

The undue influence which will invalidate a will must “amount to moral coercion; it must destroy the free agency of the testator and constrain him to do what is against his will, but what he is unable to refuse.” Potts v. House, 6 Ga. 324, 325 (1849). See also DeNieff v. Howell, 138 Ga. 248 (75 SE 202) (1912). There is simply no evidence of undue influence in the instant case.

A “motion for judgment notwithstanding the verdict. . . can be sustained only where ‘(t)here is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ [Cits.]” Georgia Power Co. v. Purser, 152 Ga. App. 181 (262 SE2d 473) (1979).

As there was no evidence of undue influence or that Harry Wick was incompetent at the time he executed the power of attorney, the trial court did not err in granting the judgment notwithstanding the verdict.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I agree with the majority that the trial court correctly granted appellees’ motion for judgment notwithstanding the verdict. However, this case was not an action to set aside the power of attorney. Therefore, all of the discussion with regard to the evidence of “undue influence” is, in my opinion, not germane to the issue on appeal. This case was plainly and simply based upon the alleged fraud of appellees. The evidence indisputedly showed that the “essential elements of fraud and misrepresentation were lacking, and irrespective of any issues of fact with regard to other essential elements the appellees were entitled to [judgment] as a matter of law. [Cit.]” Clements v. Warner Robins Supply Co., 235 Ga. 612, 614 (221 SE2d 35) (1975). It is true that our Supreme Court has recently redefined and broadened the parameters of evidence sufficient to show the reliance requirement of actionable fraud. Florida Rock &c. Lines v. Moore, 258 Ga. 106 (365 SE2d 836) (1988). In Moore, the Supreme Court stated: “We hold that the requirement of reliance is satisfied where (as in this case) A, having as his objective to defraud C, and knowing that C will rely upon B, fraudulently induces B to act in some manner on which C relies, and whereby A’s purpose of defrauding C is accomplished.” Florida Rock &c. Lines v. Moore, supra, 107. However, Moore is inapplicable to the case sub judice because there is no evidence that any damage sustained by plaintiffs was caused by plaintiffs’ reliance upon any alleged misrepresentation. The trial court correctly granted appellees’ motion for judgment notwithstanding the verdict.

Decided July 5, 1988

Rehearing denied July 15, 1988

Frank C. Vann, for appellants.

Elliott P. McCollum, Jr., for appellees.

       Justice Lumpkin in Potts, quoting from 26 Wendell 255, recalled the “startling conclusion of Dr. Haslem, who, after years of professional observation of the phenomena of Mental Disease, when examined in the remarkable case of Miss Bagster, in answer to the customary question ‘Was Miss Bagster of sound mind?’ replied ‘I never knew any human being who was of sound mind.’ ”


author: Beasley, Judge.

text:
    74882.
    McBRIDE v. THE STATE.
    (372 SE2d 308)
    Decided July 15, 1988.

      H. Haywood Turner III, for appellant.

      William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.
   Beasley, Judge.

On certiorari, the Supreme Court in State v. McBride, 258 Ga. 321 (368 SE2d 771) (1988), has reversed our decision reversing the judgment of the trial court. Accordingly, in conformity with the mandate of that opinion, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, and Benham, JJ., concur.


author: Sognier, Judge.

text:
    74958.
    CHATHAM COUNTY HOSPITAL AUTHORITY et al. v. ROSS.
    (372 SE2d 308)
    Decided July 15, 1988.

      William P. Franklin, Jr., Wendy W. Williamson, for appellants.
   Sognier, Judge.

By opinion dated May 4, 1988 (Case No. 45208), the Supreme Court of Georgia reversed this court’s opinion in the above-captioned case. Chatham County Hosp. Auth. v. Ross, 184 Ga. App. 660 (362 SE2d 390) (1987). Accordingly, our opinion is vacated, the Supreme Court’s opinion is made the opinion of this court, and the trial court’s judgment denying the Hospital Authority’s motion for summary judgment is affirmed.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Thomas R. Taggart, Samuel L. Svalina, for appellee.


text:
    76094.
    MILES INSURANCE & REALTY COMPANY v. GILSTRAP et al.
    (371 SE2d 672)
   Benham, Judge.

Appellant contends that appellees’ recovery is barred by the four-year statute of limitation in OCGA § 9-3-30 and by the eight-year statute of repose in OCGA § 9-3-51, governing suits involving improvements to realty. We agree that it is barred by the statute of limitation and reverse.

In 1978, appellant constructed a house which, after several changes of ownership, was purchased in 1984 by appellees. Mr. Gil-strap discovered in early 1985 that there was a problem with the location of his house on his lot. A survey which was performed for him revealed that his house had been constructed partly on his lot, but mostly on the undeveloped lot bordering his. The owner of that lot filed suit against appellees seeking, among other relief, the removal of the house from his property. In settlement of that suit, appellees bought the neighboring lot. In December 1986, they sued appellant for negligence, seeking the $12,500 purchase price of the lot plus their costs in the previous action. A jury awarded them $6,500. This appeal is from the judgment entered on that verdict.

1. At the time this case was tried, the statute of limitation was subject to a discovery rule under which the statute did not begin to run until the plaintiff became aware or in the exercise of due diligence should have become aware of the injury. Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461 (330 SE2d 344) (1985) (overruled, Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988)). After this case was docketed in this court, the Supreme Court held in Corporation of Mercer Univ., supra, that the discovery rule is confined to cases of bodily injury and that an action governed by OCGA § 9-3-30 must be brought within four years of substantial completion of the structure. It follows, then, that the statute of limitation ran in this case in 1982, four years after the completion of the house. Since the suit was not filed until December 1986, the action was time-barred and appellant is entitled to judgment.

2. Since we have decided this case on the ground of the statute of limitation, we need not address appellant’s argument founded on the statute of repose in OCGA § 9-3-51. We note, however, that Division 2 of Shaw v. Petersen, 180 Ga. App. 823 (350 SE2d 831) (1986), on which appellee relies for the proposition that the statute of repose in OCGA § 9-3-51 runs from the date of discovery of the injury, is no longer valid authority since the Supreme Court’s abolition of the discovery rule in Corporation of Mercer Univ., supra.

Decided July 15, 1988.

Rikard L. Bridges, for appellant.

Richard A. Epps, for appellees.

3. Appellees’ motion for a penalty for a frivolous appeal is denied.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


author: Beasley, Judge. Birdsong, Chief Judge, Deen, Presiding Judge,

text:
    76306.
    WILLIAMS v. THE STATE.
    (371 SE2d 673)
   Beasley, Judge.

Appellant was convicted of the offense of theft by taking of assorted clothing of a value in excess of $500. OCGA § 16-8-2.

Bowen, the security manager for a department store in the Albany Mall, believed that “internal theft” was occurring within the store. One morning he saw employee Dollarson remove a lamp shade from a cardboard box and replace the shade with women’s clothing. He saw Dollarson take the box, which weighed 50 to 60 pounds, on a hand truck to the freight elevator and conceal it with other boxes. Bowen kept the area under surveillance and notified another security officer, who watched the area through a security camera. They saw Dollarson take the box and remove it from the store and place it on the loading dock beside the trash compacter.

Before Dollarson placed the box on the loading dock, the appellant was observed in his pickup truck, “mak[ing] several passes behind the mall,” and park in a position with “a straight shot down to [the store’s] dock doors at shipping and receiving.” The box was not on the loading dock when appellant first started driving by it. After Dollarson left the box on the loading dock, Bowen saw appellant drive “his truck down into our loading dock. ... He opened the box, looked in it, picked up the box, and I let him set the box in the bed of the truck before I did anything with him.” Appellant was arrested and stated that he was just “getting empty boxes.”

At trial appellant testified that he had been a scavenger for about seven years and looks around department store dumpsters for boxes and merchandise that may be left outside for the garbage collectors. He sells the boxes to his cousin, who resells them. He went to the store that day because his birthday was coming up and he wanted to buy himself a pair of pants. However, he has polio and wears a brace on his leg and it was “bothering [him].” He lowered his pants to adjust the brace and then just said to himself that he would return the next day and started to drive away, but he saw “the box” outside the store’s doors near what he perceived to be a dumpster. He said: “So I backed up. ... I just pulled the truck in there. That is all that I did and I got out and I looked at the box. ... I said, ‘Something in here .... It is heavy.’ ” He did not have an opportunity to determine its contents or put it in the rear of his pickup truck because the store representatives came out and accused him of theft. He denied that he opened the box or looked in it, and he definitely did not move it onto his truck.

Dollarson had lived at 1309 East Roosevelt in Albany all of his life. Williams lived at 1125 East Roosevelt, a couple of blocks from Dollarson, since 1983, but claimed he did not know him.

1. As to the “general grounds,” when the evidence is viewed in the light favorable to the verdict, the evidence is sufficient to enable any rational trier of fact to find the existence of the offense charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. It is argued that the trial court erred in refusing to give appellant’s requested charge “number five, a statement of law taken from OCGA § 16-8-10.” Neither the record nor the transcript contains appellant’s requested charge. However, the colloquy between counsel and the court makes evident that it involves subsection (2) of OCGA § 16-8-10, which states: “It is an affirmative defense to a prosecution for violation of Code Sections 16-8-2 through 16-8-7 that the person ... (2) Acted under an honest claim of ... a right to acquire . . . [the property] as he did. ...” Appellant cites Calloway v. State, 176 Ga. App. 674 (337 SE2d 397) (1985) as authority for his claim that because this was his only real defense, the court’s failure to charge on it is reversible error.

Defendant’s sole defense was that he thought the box and contents outside the store were discarded trash which he was free to take. He did not say specifically that he picked it up or moved it, but it appears from what he said that he did, so the lack of asportation was not available to him as a defense. He did not deny that the box and contents had not in fact been discarded by the store but claimed he only later learned this. In these circumstances, his only defense was the statutory one.

Thus the trial court was obligated to charge the principle quoted, as defendant’s counsel urged by an apparently handwritten charge submitted at the close of the evidence. Even if the submission of the request was not properly accomplished or perfected on appeal, the requirement would remain. Griffin v. State, 154 Ga. App. 261, 264 (3) (267 SE2d 867) (1980) quotes the long-standing rule in this state, which requires instruction to the jury on the rules of law related to the sole defense, the absence of which “prejudices the defendant’s right to a fair and impartial trial.” A new trial is called for.

3. The trial court correctly charged on the law of asportation as it applies to theft by taking. Webb v. State, 184 Ga. App. 89, 90 (360 SE2d 643) (1987); Brown v. State, 135 Ga. App. 323 (1) (217 SE2d 500) (1975).

Judgment reversed.

Banke, P. J., Sognier and Benham, JJ., concur. Carley, J., concurs in the judgment only. Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., dissent.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from the majority opinion because I find no merit to the appellant’s contention that the trial court erred in refusing to give his requested charge based on OCGA § 16-8-10.

1. First, the requested charge is not in the record or transcript and this court cannot assure itself of the exact wording. The burden is on an appellant to establish error which has harmed him, and this cannot be done by assertions in the brief. York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577); Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109). “ * “A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.” ’ ” Berman v. Berman, 253 Ga. 298, 299 (319 SE2d 846). Further, the request must be “ ‘ “legal . . . and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” ’ ” Fowler v. Gorrell, 148 Ga. App. 573, 576 (251 SE2d 819); accord Kessel v. State, 236 Ga. 373, 374 (223 SE2d 811). Without the verbatim request to charge before us, this court cannot assure itself the request perfectly stated the law, is not argumentative, and is precisely adjusted to the facts and the law of this case. I will not presume reversible error from a silent record.

2. Secondly, I find no reversible error in the refusal of the trial court to give the requested charge because this alleged defense was not established as a matter of law. If the request is not “precisely adjusted to some principle [of law] involved in the case” it is not error to refuse the request. Fowler, supra; Kessel, supra. For this affirmative defense to be “apt” in the present case, it must have a basis in fact, and be permitted by law. Stated conversely, regardless of whether the evidence establishes a claimed fact, if such fact is not recognized by the law as a defense, there is no error in refusing to give the charge. For example, it is not error to refuse a requested charge on an asserted defense of causing the death of another “by the commission of a lawful act in an unlawful manner” when the instrument used is a “deadly weapon,” as a matter of law, even though the established facts support the claim. Ward v. State, 252 Ga. 85 (1) (311 SE2d 449); Saylors v. State, 251 Ga. 735 (2) (309 SE2d 796); Richard son v. State, 250 Ga. 506 (3) (299 SE2d 715).

Williams claimed he picked up “cans and boxes.” He admitted being parked in front of the loading dock and saw this “box sitting over there . . . the door as you go in the shop.” As to the box’s relative position to a dumpster, Williams was asked by his counsel: “Q. In other words, there is a side door and the dumpsters are around the corner. . . . A. I said, ‘There is a box.’ So I backed up . . .1 looked at the box. And I went to do that right there, and I said, ‘Something in here.’ I said, ‘It is heavy.’ ” Williams testified that at this point he was apprehended. Two security guards testified that they waited until Williams loaded the stolen merchandise on his truck. The majority states that Williams was “just ‘getting empty boxes.’ ” In other words, Williams asserted no “honest claim of right” to the stolen merchandise, only the box. Yet, the stolen merchandise in the “empty box[ ]” weighed 50 to 60 pounds and appellant was aware of “something in” the box, and that it was “heavy.” However, the appellant was not charged with the larceny of the box, but of the merchandise in the box, and according to the record and the majority, appellant has asserted no “honest claim of right” to the merchandise, only that he had no “intention to steal anything from” the store. Hence, it should not be error to refuse to charge on a collateral issue (i.e., larceny of the box), which was not charged as a crime.

From the above, it is seen that Williams’ asserted claim of right was only to the box, and not to the merchandise in the box. There is no evidence in the record, and no basis in law for an “honest claim of right” to the merchandise of another (the department store) which is located on the property of the true owner (the loading dock). The test for an “honest claim of right” is set forth in Moyers v. State, 186 Ga. 446, 449-450 (197 SE 846): “ ‘If one in good faith takes the property of another, believing it to be his own or that he has a [legal] right to its possession, though his claim is unfounded, he is not guilty of larceny, because there is no felonious intent to deprive another of his property.’. . . ‘The claim under which the party acts must be a claim of ownership or right to possession of the specific thing. . . .” (Emphasis supplied.) Here, the appellant’s claim of right was not to “the specific thing,” the merchandise, and because appellant was not charged with larceny of the box, his charge related to the merchandise and was not applicable, either in fact or law. See Breland v. State, 135 Ga. App. 478, 481 (3) (218 SE2d 153). “There is a distinction between ‘claim of right’ and ‘lack of intent.’ [Cit.] . . . [T]he defendant did not contend at the trial that the property was not stolen, but only that he was unaware of the fact.” Williams v. State, 142 Ga. App. 764, 769 (236 SE2d 893).

Accordingly, as appellant’s defense was not an honest claim of right to the merchandise, but a claim of right to the box, and he has not been charged with theft of the box, and no “honest claim of right” was established or asserted by a claimant who went onto the property of another and allegedly took possession of the other’s merchandise, such stranger to the title can have no “honest claim of right” to the merchandise, only that he was without any intent to deprive the true owner of its property. Cf. Mathis v. State, 147 Ga. App. 148, 149 (3) (248 SE2d 212). The trial court properly charged on the specific intent of the taker to deprive the owner of its property which was the sole defense asserted and this was resolved against appellant. White v. State, 163 Ga. App. 518 (295 SE2d 333); Bremer v. State, 148 Ga. App. 461, 467 (3) (251 SE2d 355).

Because the appellant has asserted no “honest claim of right” to possession of the stolen merchandise, but only to the box, he was not entitled to a charge on a claim of right to the merchandise as a matter of fact. Because appellant has no basis in law for an “honest claim of right” to the property of the department store, following his entry onto the property of the store, even if there was a factual predicate for the claim, it is not recognizable in law and the refusal to charge was correct as a matter of law.

3. Of interest is the claim of the appellant that he did not attempt to steal the merchandise, in effect, he just picked the box up, put it down, and there was no asportation of the stolen merchandise, thus no offense. Assertion of an honest claim of right to property is an affirmative defense. Mathis, supra at 149. It is general law in this state that one cannot assert an affirmative defense if he denies commission of the offense. See Gregoroff v. State, 248 Ga. 667, 669-670 (285 SE2d 537); Griffin v. State, supra at 263. The basic reasoning is that an affirmative defense is in the nature of confession and avoidance — I took the property, but I took it because I have an honest claim of right to it. Gregoroff, supra at 670. Appellant claims the best of both sides, i.e., I didn’t take it, and if I did take it, I had a right to it (the box) because I am a scavenger, and I have the right to go onto the property of anyone and take any box. Compare Mathews v. United States, 485 U. S._(108 SC 883, 99 LE2d 54).

I would affirm the judgment of the trial court. I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray and Judge Pope join in this dissent.

Deen, Presiding Judge,

dissenting.

While concurring with Chief Judge Birdsong’s dissent, I wish to note that even if the department store in this case had forfeited any reasonable expectation of privacy to any discarded boxes by placing them on the loading dock beside the trash compacter, see California v. Greenwood, 486 U. S._ (108 SC_, 100 LE2d 30) (1988), the loss of such privacy interest would not bestow upon a scavenger an “honest claim of right” to the garbage. Thus, regardless of whether the requested charge in this case belonged to the “ ‘grand conglomerations of garbled verbiage and verbal garbage,’ ” State Hwy. Dept. v. Price, 123 Ga. App. 655, 657 (182 SE2d 175) (1971), the trial court did not err in refusing to give the charge since it was not supported by the evidence.

Decided July 15, 1988.

Clayton Jones, Jr., for appellant.

Hobart M. Hind, District Attorney, L. Earl Jones, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.


text:
    76347.
    DAUGHERTY v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (371 SE2d 677)
   Banke, Presiding Judge.

Daugherty sued the Metropolitan Atlanta Rapid Transit Authority (MARTA), alleging that it had unlawfully discharged him from his employment as a transit policeman in violation of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq. He also sued a physician retained by MARTA, Dr. Tom S. Howell, Jr., seeking damages for medical malpractice and tortious interference with his employment based on a medical opinion the latter had given to MARTA, upon which MARTA had relied in discharging him. MARTA was granted summary judgment in the action, prompting Daugherty to file this appeal.

The appellant applied for employment as a MARTA transit policeman in 1985, having been employed as a security guard at Emory University since 1980. On September 12, 1985, he underwent a preemployment physical examination, during the course of which he revealed that he was taking medication for a seizure disorder. A notation to that effect was placed on his examination form; and the printed designation, “Class C, Requires Evaluation by Review Committee,” was circled accordingly. Included as part of the appellant’s application was a letter from his neurologist, Dr. Wallace, stating: “I have treated Mr. Mark Daugherty since 1971. He has a seizure disorder that is under good control with medication. He has not had a seizure since 1982. ... I feel that his seizures are in excellent control and feel that he is employable without any limitations.”

The appellant was offered employment as a MARTA transit policeman and began work on September 30, 1985. On or about that same date, MARTA’s employment manager, Ms. Yvonne Powers, reviewed his application file, observed that he had received a “Class C” rating on his pre-employment physical, and consequently arranged, as a matter of course, for him to undergo further medical evaluation by Dr. Howell, a specialist in occupational medicine whose clinic was under contract with MARTA to provide such medical services. In the meantime, the appellant’s supervisor was instructed to remove him from active duty as a transit policeman, and the appellant was given a temporary assignment in the radio room.

Dr. Howell interviewed the appellant on October 24, 1985. The following day, he wrote a letter to Ms. Powers noting that the appellant was taking 1800 mg. of Tegratol and 240 mg. of phenobarbitol daily and stating that his “demeanor suggested] a certain amount of lethargy.” Asked during his deposition to explain this remark, Dr. Howell responded that during the course of his interview with the appellant, he was “almost appalled by the fact that Mr. Daugherty was sitting in the chair directly across from me and almost went to sleep ... , in my opinion, on two occasions while I was discussing him.” Dr. Howell concluded in his letter to Ms. Powers that he “would have some difficulty . . . accepting [the appellant] as a security guard or transit policeman which would involve operating a company vehicle and carrying a weapon.” He suggested that additional information be obtained from the appellant’s personal physician, Dr. Wallace, and also from Dr. Donald Bickers, whom he described as “an authority with this type of problem.”

Dr. Howell testified that he subsequently discussed his concerns with Dr. Bickers, a neurosurgeon with special expertise in epilepsy, and that Dr. Bickers supported his opinion that a person taking the type and amount of medication being taken by the appellant should not be carrying a gun in a law enforcement capacity. On December 5, 1985, Dr. Howell wrote a second letter to Ms. Powers, informing her of his consultation with Dr. Bickers and stating: “At the present time, based on information available, I would not consider Mr. Daugherty to be a satisfactory candidate to perform work as a transit policeman.” On the basis of this adverse recommendation, the appellant’s employment was terminated. Held:

OCGA § 34-6A-4 (a) specifies, in pertinent part, that “[n]o employer shall fail or refuse to hire, discharge, or discriminate against any handicapped individual with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person’s handicap unless such handicap restricts that individual’s ability to engage in the particular job or occupation for which he or she is eligible. . . .” (Emphasis supplied.) Similarly, subsection (b) of § 34-6A-3 specifies: “Nothing in this chapter shall be construed to prohibit the rejection of an applicant for employment on the basis of: (1) A handicap which interferes with a person’s ability to perform assigned job duties adequately. . . .” Finally, subsection (c) of OCGA § 34-6A-3 specifies: “Nothing in this chapter shall be construed to prevent or otherwise make illegal any employment decision affecting any person where such decision is based upon an employer’s good faith reliance upon a professional opinion rendered by a licensed physician, rehabilitation specialist, psychologist, physical therapist, dentist, or other similar licensed health care professional concerning that person.”

In Spicer v. Martin-Brower Co., 177 Ga. App. 197 (338 SE2d 773) (1985), this court held that “in the limited instance where conflicting professional opinions are properly before the employer, questions of fact may be raised whether the employer acted in good faith in relying on one particular professional opinion, in view of the possibility that the employer’s subjective selection of one opinion in preference to another may have been the result of a discriminatory motive.” However, the court went on to hold that where the employer presented evidence in support of its motion for summary judgment indicating that it had not acted out of animosity in relying upon the medical opinion of its own medical consultant in preference to a contrary opinion offered by the employee’s personal physician, but had instead acted out of concern for potential safety problems posed by the employee’s medical condition, the burden shifted to the employee to come forward with contrary evidence from which it could be inferred that a discriminatory motive was in fact involved. Because no such contrary evidence was offered, the grant of the employer’s motion for summary judgment was affirmed.

In the case before us, as in Spicer, the employer has submitted evidence tending to establish without dispute both that its employment decision was made in reliance upon the professional recommendation of a licensed physician and that its preference of that physician’s opinion over the contrary opinion of the employee’s personal physician was based upon safety concerns rather than upon an unlawful, discriminatory motive. Indeed, as pointed out by MARTA, the safety concerns involved in the present case are even more substantial than those involved in Spicer in that they implicate the public at large rather than merely the appellant and his fellow employees. While the appellant contends that material issues of fact are created by certain conflicts in the testimony of Ms. Powers and by evidence that MARTA did not follow its own established procedures with respect to the convening of its Medical Review Committee, none of these purported inconsistencies or irregularities suggests the existence of an unlawful, discriminatory motive. Instead, it appears without dispute that the case was referred to Dr. Howell for evaluation as a matter of course in response to the “Class C” designation received by the appellant on his pre-employment physical and that the subsequent decision to terminate his employment as a transit policeman was made in direct reliance upon Dr. Howell’s evaluation. A dispute as to an immaterial fact or one which has no legal significance to the outcome of the case does not preclude summary judgment. See Barnett Mtg. Trust v. Woods Mill, Ltd., 151 Ga. App. 133 (259 SE2d 140) (1979); Wood v. Metro. Atlanta Girls’ Club, 141 Ga. App. 473 (233 SE2d 862) (1977).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, and Pope, JJ., concur. Benham and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

OCGA § 34-6A-1 et seq., the Georgia Equal Employment for the Handicapped Code, implements the public policy of this State to protect those with handicaps from discriminatory employment practices. Ga. L. 1981, p. 1843, § 1. “The statute is obviously a balancing of the interests of society in providing an opportunity for handicapped people to work, and the interests of employers to maintain the freedom to hire and maintain employees who can best perform the duties of a particular job. . . . An employer is not required under this law to hire or maintain a person who cannot perform the duties of the job because of that person’s handicap.” Dugger v. Delta Air Lines, 173 Ga. App. 16, 18 (325 SE2d 394) (1984).

OCGA § 34-6A-3 permits inquiries to job applicants regarding the existence and extent of a handicap and allows rejection of a prospective employee who has a handicap which interferes with a person’s ability to perform job duties adequately. Subsection (c) expressly frees from constraint employment decisions which are “based upon an employer’s good faith reliance upon a professional opinion rendered by a licensed physician” concerning the handicapped person.

The question here is whether MARTA, which stands on subsection (c) for its defense, established as a matter of law that its decision was so based, so that it is entitled to judgment without further inquiry. Dr. Howell’s motion for summary judgment, with respect to claims of medical malpractice and tortious interference with employment contract rights, was denied.

We must start with the formula to determine the existence of a plaintiff’s prima facie case on trial which was adopted in Shaw v. W. M. Wrigley, Jr. Co., 183 Ga. App. 699, 700 (1) (359 SE2d 723) (1987). In order to establish disparate treatment plaintiff must show that he 1) is a member of the protected class, 2) meets the objective qualifications of the job, 3) was directly or constructively terminated, ánd 4) there was a nexus between the termination and the handicap. Once these criteria have been met, “a rebuttable presumption arises that the employer/defendant unlawfully discriminated against the plaintiff.”

The employer must set forth a legitimate, nondiscriminatory reason for plaintiff’s rejection or discharge. “The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if defendant’s evidence raises a genuine issue of fact whether it discriminated against plaintiff.” Plaintiff then must show “the proffered reason was not the true reason for the employment decision.” Id. at 700.

Spicer v. Martin-Brower Co., 177 Ga. App. 197 (1) (338 SE2d 773) (1985), recognized that “where conflicting professional opinions are properly before the employer, questions of fact may be raised whether the employer acted in good faith in relying on one particular professional opinion, in view of the possibility that the employer’s subjective selection of one opinion in preference to another may have been the result of a discriminatory motive.”

During the trial the burden of persuading the factfinder that defendant discriminated against plaintiff remains with plaintiff at all times. Shaw, supra at 700. On motion for summary judgment, however, the burden rests upon defendant as movant to establish that no genuine issue of fact exists and here, because it relies upon the good faith defense, that it acted in good faith in relying upon Dr. Howell’s opinion, as a matter of law. Jacobsen v. Muller, 181 Ga. App. 382, 384 (4) (352 SE2d 604) (1986). “Moreover, where the evidence on summary judgment is ambiguous or doubtful, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence.” Fiumefreddo v. Scudder, 252 Ga. 279, 283 (2) (313 SE2d 683) (1984).

Several facts stand out. Daugherty was certified by the Georgia Peace Officer Standards and Training Council (POST) as a law enforcement officer entitled to carry a weapon and had been employed in a police function by Emory University since 1980. He had a seizure disorder (epilepsy) which first manifested itself while he was an adolescent and was controlled by medication. The most recent onset was in 1982. After his discharge by MARTA, Daugherty’s certification was continued after a POST hearing which found he was not unable to perform as a peace officer. He was required to keep POST aware of his medical condition by means of an annual medical report.

Dr. Howell’s first letter which stated that plaintiff’s “demeanor suggests a certain amount of lethargy,” and his second letter which referred to Daugherty’s “mild lethargy,” stand in stark contrast to his testimony that he was “almost appalled” that in the interview Daugherty almost went to sleep. We must take the most unfavorable version of these variations. Lynch v. Waters, 256 Ga. 389 (349 SE2d 456) (1986); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Moreover, Daugherty at the time was just coming off the night shift at Emory.

Dr. Howell stated in his first letter to Ms. Powers that he wished to obtain additional information from Dr. Wallace, a neurologist who had treated Daugherty since 1971 and who had unequivocally recommended Daugherty’s employment, but Dr. Howell then made no effort to consult with Dr. Wallace. Although a specialist in occupational medicine, Dr. Howell admitted that he was not an expert on seizure disorders or their treatment. Thus, he informally consulted Dr. Bickers who never personally saw Daugherty. Ms. Powers accepted Dr. Howell’s recommendation set out in his second letter without question and made no effort to determine why his view and Dr. Wallace’s were diametrically opposed. She made no effort to follow MARTA procedure and the medical review committee was not convened to make a determination whether to adopt Dr. Howell’s findings. Instead of having the committee pass upon the problem, it was ignored and bypassed without explanation.

The evidence does not require the interpretation that “it appears without dispute the case was referred to Dr. Howell for evaluation as a matter of course in response to the ‘Class C’ designation received by the appellant on his pre-employment physical. . . .” On deposition Dr. Howell testified that “[v]ery seldom are we asked to review a case” from the separate clinic which initially examined Daugherty. He related: “Class C, by definition, means that it should be reviewed by a medical review committee.” That committee was “formed by MARTA primarily to insure that we did not discriminate against someone under EEOC.” Dr. Howell sat on the committee but had no vote. The committee was functioning and within the last month had considered a Class C condition. Dr. Howell admitted that he agreed reluctantly to see Daugherty, perferring that “it take its normal course which was that it should go before the medical review committee.”

Discrimination is often subtle and good faith involves intent. In considering the totality of circumstances, several questions related to good faith are left unresolved here. One is, why was there a disregard of the medical review committee procedure called for by MARTA’s own guidelines? In the absence of any explanation, MARTA did not establish as a matter of law a good faith reliance on Dr. Howell’s opinion, especially in the face of the apparently contrary opinion of the employee’s long-standing personal physician.

Although Dr. Howell expressed the need to consult with Dr. Wallace, the applicant’s treating physician, he never did so and any mention of Wallace’s report was omitted from the second letter. Should this omission have been considered by a diligent employer who was seeking in good faith to make a non-discriminatory determination with regard to plaintiff’s handicap?

Decided July 15, 1988.

Kathryn M. Zickert, for appellant.

Michael G. Frick, Melinda K. Wells, for appellee.

Ms. Powers never questioned Dr. Howell about the opposing view of Dr. Wallace nor made any effort to obtain information from Dr. Wallace regarding the basis of his opinion or its relationship to the particular job requirements in question.

Nor did Dr. Bickers, upon whose judgment Dr. Howell relied for his own final opinion, ever examine applicant or his medical record. Dr. Howell discussed the case with him and wrote to Ms. Powers that “Dr. Bickers agreed that Mr. Daugherty probably should not be a security guard and certainly stated that he felt that he [Daugherty] should not be carrying a gun.” Where there are conflicting opinions, one based upon personal examination by the treating physician and the other without any personal contact, can an employer blindly rely upon one to the exclusion of the other without any further evaluation?

All of these factors raise inferences of a lack of good faith reliance on Dr. Howell’s opinion and undermine the assertion that there was good faith as a matter of law. In the current posture of the case, where the evidence must be construed in favor of plaintiff as the party opposing the motion, summary judgment in favor of MARTA should not have been granted.

I am authorized to state that Judge Benham joins in this dissent.


author: Carley, Judge.

text:
    76441.
    ECHOLS v. THE STATE.
    (371 SE2d 682)
   Carley, Judge.

Appellant was tried before a jury on an accusation which charged her “with the offense of OBSTRUCTION OF OFFICER O.C.G.A. (16-10-24) for that the said accused ... on the 18th day of July, 1987, did unlawfully then and there knowingly and willfully obstruct and hinder Archie McKinney, a law enforcement officer in the lawful discharge of his official duties by hindering the apprehension of Alvin Marshall in that the said [appellant] stated to Deputy McKinney that Alvin Marshall was not at the residence when, in fact, he was, contrary to the laws of this State, the good order, peace and dignity thereof.”

At trial, Deputy McKinney testified that, in his attempt to serve the arrest warrant, appellant had not only misinformed him about Marshall’s presence in the house, but, that she also had attempted to prevent his entry into the house by latching the screen door. Deputy McKinney further testified that, after he had entered the house and had placed Marshall under arrest, appellant stated that she would not permit them to leave and had then physically placed herself between the door and the officer and his arrestee. Deputy McKinney also testified that, while appellant was blocking the exit, she had refused to comply with his orders to step aside and allow them to pass, and would not yield when he attempted to push her aside gently. According to Deputy McKinney, rather than escalate the physical confrontation, he made no further attempt to remove Marshall from the house until other officers had arrived at the scene.

At the close of the State’s evidence, appellant moved for a directed verdict of acquittal, on the ground that the accusation had failed to allege that there had been any physical contact with Deputy McKinney in appellant’s attempts to prevent Marshall’s arrest. The trial court denied appellant’s motion. The jury returned a verdict of guilty. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

Appellant enumerates as error only the trial court’s failure to grant her motion for a directed verdict of acquittal.

“ ‘ “Where the accused desires to take exception to the form of an indictment or accusation, it is essential that he should do so by a demurrer or motion to quash, made in writing and before pleading to the merits. If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion . . .” [Cit.]’ [Cit.] A motion for a directed verdict of acquittal is not the proper way to contest the sufficiency of an [accusation]. A motion for a directed verdict of acquittal under [OCGA § 17-9-1] addresses the sufficiency of the evidence, not the sufficiency of the underlying [accusation]. [Cit.] When an [accusation] is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the [accusation] is interposed and the accused is convicted under the [accusation] and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus. [Cits.] The application of the aforesaid principles of law to the facts of the instant case demonstrates the following: [Appellant] could have but did not demur to the alleged void [accusation] before or during trial. Instead [she] invoked a ruling by the trial court on the sufficiency of the evidence and [was] [un] successful in obtaining a directed verdict of acquittal. ... [It would have been] error, . . . [for the trial court to grant appellant’s] motion for a directed verdict of acquittal on the grounds urged in support of the motion, which grounds went to the form of the [accusation] rather than to the evidence adduced at trial. [Cit.] If the trial court had construed [appellant’s] motion as a motion to quash and had granted it on that basis, all proceedings pursuant to the [accusation] would have terminated. However, the simple fact is that the trial court did not construe appellant’s motion as a motion to quash. Instead, the trial court [denied appellant] what [she] requested, a motion for directed verdict of acquittal, the ultimate effect of which was . . . to allow the case to go to the jury on the issue of [appellant’s] guilt, under the unquashed [accusation], of the . . . offense of [obstruction of an officer]. [Cit.] Thus, it clearly appears that [appellant’s] conviction for [obstruction of an officer] was pursuant to an underlying unquashed [accusation]. No motion in arrest of the judgment of conviction was made. ‘Conceding, but not deciding, that the [accusation] was a nullity and that a motion to arrest the judgment would have been good,’ [appellant] cannot make said underlying nullity the basis for attacking [her conviction] on the general grounds. [Cit.]” Williams v. State, 162 Ga. App. 350, 351-352 (291 SE2d 425) (1982).

“On the record before us, the only issue we have presented for review is the propriety of the denial of [appellant’s] motion for a directed verdict of acquittal as to [obstruction of an officer]. This issue is determined, not by the sufficiency of the [accusation], but by whether the evidence adduced at trial demanded a verdict of ‘not guilty.’ [Cit.]” Williams v. State, supra at 352. There was evidence produced at appellant’s trial from which the jury could find that she not only knowingly and willfully refused to obey a law enforcement officer while he was performing his official duties, but that she also physically obstructed and resisted the officer. From the evidence produced at trial, a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of the offense of obstructing an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986); Carr v. State, 176 Ga. App. 113, 114 (1) (335 SE2d 622) (1985). Compare In re G. M. M., 179 Ga. App. 800, 801 (1) (348 SE2d 126) (1986). “A trial court must grant a motion for directed verdict unless, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. [Cit.]” Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981). Accordingly, the trial court did not err in denying appellant’s motion for directed verdict.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Decided July 15, 1988.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Assistant District Attorney, for appellee.


text:
    76453.
    HESTER v. THE STATE.
    (371 SE2d 684)
   Sognier, Judge.

Appellant was convicted of cruelty to children and he appeals.

1. Appellant contends the trial court erred by holding that Michael Childers, the victim, was competent to testify. In this regard OCGA § 24-9-7 (a) provides that the competency of an infant as a witness shall be decided by the court through examination of the witness alleged to be incompetent. Childers was nine years old at the time of trial and during questioning as to his competency, testified as to his grade in school; his teacher’s name; that it is good to tell the truth and bad to tell a lie; that he would get a whipping if he told a lie; and that he was going to tell the truth in court. He also testified that he was asked to raise his right hand (when the oath was administered) to tell the truth. In response to questions by the court, Childers testified that he understood what it meant to tell the truth; that by raising his hand and answering yes (when the oath was administered) he was promising to tell the truth and promising not to tell any lies; that he would get in trouble if he did not tell the truth in court; and that he would tell the truth in answering questions by the lawyers. Appellant argues that such testimony did not show that Childers understood the nature of the oath.

The standard of intelligence required to qualify a child as a witness is not that he is able to define the meaning of an oath, but that he knows and appreciates the fact that as a witness he assumes a solemn and binding obligation to tell the truth about the case and such matters as he may be interrogated on, and if he violates the obligation he is subject to be punished by the court. Smith v. State, 247 Ga. 511-512 (277 SE2d 53) (1981); Smallwood v. State, 165 Ga. App. 473-474 (301 SE2d 670) (1983). Where the trial judge examines a child as to its understanding of the nature of the oath and determines that the child is competent to testify, his discretion will not be interfered with absent manifest abuse of such discretion. Smallwood, supra at 474. We find no abuse of discretion by the trial court here in determining that Childers was competent to testify.

In a separate enumeration appellant alleges error by the trial court in allowing witnesses to testify as to statements made to them by the victim, because he was not competent to testify. Thus, appellant argues that Childers was not available to testify as a witness, as required by OCGA § 24-3-16, the Child Hearsay statute. Since we have found the court did not err in finding Childers competent to testify, this enumeration of error is without merit.

2. Appellant contends the trial court erred by allowing Sonya Rice, a State witness, to testify in rebuttal about statements made by appellant to Rice in a telephone conversation. Appellant argues that because Rice could not identify the voice of the caller as that of appellant, her testimony was inadmissible.

Rice testified that she had never talked to appellant prior to receiving the telephone call in question. She believed the caller was appellant because he identified himself as appellant, and was seeking permission for his children (other than Childers), who had been taken from appellant and were staying with relatives, to return to his home. The person calling also asked about Gail, appellant’s common-law wife and the mother of Childers. Based on such testimony, the trial court, over objection, allowed Rice to testify about what appellant told her when he called. The court also instructed the jury that it was up to them to determine whether the statements made by the caller were made by appellant or some other person.

“Although, generally speaking, proof of telephone conversations may be admissible in evidence when the identity of the person against whom the conversation is sought to be admitted is established by circumstantial as well as direct evidence, (cits.), an identification is not sufficient if identity is established only by what is said in the conversation itself. Price v. State, 208 Ga. 695 (69 SE2d 253) (1952).” (Emphasis supplied.) Constantino v. State, 243 Ga. 595, 599 (3) (255 SE2d 710) (1979). Since the identity of appellant was established only by what was said in the conversation itself, it was error to allow Rice to testify as to what appellant said in the conversation. However, we find the error harmless under the facts presented in this case.

Rice’s testimony was offered in rebuttal to dispute appellant’s testimony that he had never called Rice. Further, there was nothing incriminating or inculpatory in the conversation as testified to by Rice. Although Rice’s testimony was offered to attack the credibility of appellant, his testimony had been contradicted by several other witnesses, including defense witnesses.

The fact that there is other evidence to convict does not make the error harmless; rather, the test is whether the evidence may have influenced the jury’s verdict. Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985). The victim here testified that appellant tied him to a table, nude, and beat him with a leather belt, and on one occasion used a drop cord to beat him; that appellant often beat him with the buckle of the belt; and that appellant had struck the victim in the face and on his head with his (appellant’s) fist while wearing a ring, often resulting in a bloody nose, a black eye, and lumps on the victim’s head. A physician who examined the victim testified there were marks on the victim’s back and legs, some of them recent, which could have been caused by a leather belt; that the victim had several “c-shaped” scars which could have been caused by a belt buckle or some other metal object; and that such scars were permanent. Other testimony also indicated that the victim had received severe injuries which were not consistent with normal spankings received for misbehavior.

Decided July 15, 1988.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Joseph A. Homans, Assistant District Attorney, for appellee.

In view of such testimony, we do not believe testimony that appellant made a telephone call to Rice may have influenced the verdict. Accordingly, we find the error in admitting Rice’s testimony harmless.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.