text:
    A97A0099, A97A0100.
    MORRIS et al. v. BUDD et al. (two cases).
    (486 SE2d 682)
   Andrews, Chief Judge.

Roger Budd, Jr. d/b/a Roger Budd Company and BAMB Development Corporation (the sellers) sold an office building to Ben Morris, which Morris renovated for use as a chiropractic clinic. After the sale, Morris discovered that floor tiles removed from the building during renovations done by him and his minor son, Jason Morris, contained asbestos. On his own behalf and on behalf of his son, Morris brought an action against the sellers seeking recovery of personal injury and property damages allegedly suffered as a result of the sale of the property with a hidden asbestos defect.

Although the complaint makes multiple allegations of fraud, negligence, bad faith, and violation of the Fair Business Practices Act (OCGA § 10-1-390 et seq.), the gravamen of all the claims is that the sellers fraudulently induced Morris to buy the building with the hidden asbestos defect by making misrepresentations about the building at the time of the sale. The sellers moved for summary judgment on various grounds, including the defense that they had no knowledge prior to the sale that the building contained any asbestos and that they made no fraudulent misrepresentations. The trial court granted summary judgment to the sellers on all the claims.

In Case No. A97A0099, Morris appeals from the grant of summary judgment in favor of the sellers. Case No. A97A0100 is a related appeal by Morris from the trial court’s order requiring him to pay for the cost of including depositions in the appellate record, which he had directed the clerk to omit in the notice of appeal.

Case No. A97A0099

1. Morris claims the trial court erred in granting summary judgment to the sellers because factual issues remain on his claims of fraud and misrepresentation.

There is nothing in the record to support a finding that, at the time of the sale, the sellers had any knowledge that the building contained asbestos. Budd, who closed the sale with Morris on behalf of the sellers, denied having any such knowledge. Morris testified on deposition that he had no information indicating that Budd knew about the presence of asbestos in the building at the time of the sale. In fact, Morris conceded that the presence of asbestos in the building was a latent defect which could not be determined by his inspections of the premises and that, at the time of the sale, there was nothing about the appearance of the building or the floor tiles in the building which indicated the presence of asbestos. Nevertheless, Morris contends that Budd fraudulently induced him to purchase the building by making statements to him that he had knowledge about the maintenance history of the building, that the building had been maintained in good condition, that it was suitable for use as a chiropractic clinic, and that he believed it had a market value in excess of the proposed sale price.

In the absence of any evidence that the sellers knew about the presence of asbestos in the building at the time of the sale, there is no basis for concluding that the sellers fraudulently concealed the defect from Morris. Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538, 540 (458 SE2d 481) (1995). Moreover, since Budd’s general statements to Morris as to the condition, suitability, and value of the building at the time of the sale were no more than expressions of opinion, commendations, or sales puffing, Morris was not justified in relying on them, and they provided no grounds for a fraud claim. Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986); U-Haul Co. &c. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983).

There is no merit to Morris’ additional contention that the representations violated a fiduciary or confidential relationship of trust and confidence which existed between him and the sellers. To the contrary, the record shows the sale was an arms-length commercial business transaction. William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 637 (466 SE2d 872) (1995).

2. The trial court also properly granted summary judgment in favor of the sellers on Morris’ claim that Budd’s representations regarding the building violated the Fair Business Practices Act (FBPA).

Since Morris could not justifiably rely on Budd’s expressions of opinion, commendations, and puffing regarding the building, these representations did not provide a basis for the FBPA claim. Nims v. Otter, 188 Ga. App. 516, 518 (373 SE2d 396) (1988). Furthermore, the sale of the building to Morris was a private transaction having no characteristics sufficient to bring it within the ambit of the FBPA’s protection against acts and practices injurious to the consuming public. Condon v. Kunse, 208 Ga. App. 856, 859 (432 SE2d 266) (1993); Nims, supra at 517-518.

3. Since the trial court properly granted summary judgment in favor of the sellers for the reasons stated in Divisions 1 and 2, supra, we need not address appellants’ additional enumerations of error contending that the trial court erred by granting summary judgment to the sellers on other grounds.

Case No. A97A0100

4. In this related appeal, Morris appeals from an order entered by the trial court requiring appellants to pay the cost of including depositions given by him, his son, and Budd as part of the record on appeal in Case No. A97A0099.

In the notice of appeal in Case No. A97A0099, Morris stated that “[t]he Clerk will please omit from the record on appeal. . . the complete texts of any depositions filed in the case.” In response, the appellee sellers filed a designation of record pursuant to OCGA § 5-6-42 designating that the omitted depositions be included in the appellate record. Subsequently, the appellee sellers filed a motion contending that the omitted depositions of Ben Morris, Jason Morris, and Budd were relevant and necessary to complete the record on appeal and that the costs of including them in the record should be borne by the appellants. The trial court agreed and granted the motion.

Decided May 14, 1997.

Before Judge Horkan.

Calvin A. Rouse, for appellants.

Langdale, Vallotton, Linahan & Thelkeld, William P. Langdale, Jr., Hawkins & Parnell, Robert R. Elarbee, for appellees.

Morris concedes that the depositions he omitted from the appellate record contain material necessary for consideration of the appeal in Case No. A97A0099. However, he contends that only portions of the depositions are relevant and that the trial court erred by ordering him to pay for inclusion of the entire depositions in the record. Where the appellant directs the clerk to omit parts of the trial record from the appellate record and the appellee designates that the omitted parts be included, “if the trial court finds that the additional portions designated by the appellee are necessary to complete the record on appeal, the costs must be paid by the appellant; only if considered unnecessary on appeal, should the costs be taxed against the appellee. The trial court’s decision will not be reversed absent a manifest abuse of discretion.” Jones v. Spindel, 239 Ga. 68, 70-71 (2) (235 SE2d 486) (1977).

The appellants have not demonstrated that the trial court abused its discretion by ordering them to pay for inclusion of the depositions in the appellate record. The appellants directed the clerk to omit the entire depositions in their notice of appeal and then, after the appellees designated that the depositions be included, conceded that portions of the depositions contain material necessary to consideration of the appeal. They contend on appeal that hundreds of pages of the depositions are unnecessary to consideration of the appeal. However, the appellants have failed to give record cites to the specific portions of the depositions they consider unnecessary for inclusion in the appellate record.

Appellees’ motion pursuant to Court of Appeals Rule 15 (b) for imposition of a penalty for a frivolous appeal is denied.

Judgments affirmed.

McMurray, P. J, and Smith, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0671.
    MATJOULIS v. INTEGON GENERAL INSURANCE CORPORATION et al.
    (486 SE2d 684)
   Johnson, Judge.

Terry Matjoulis had a car insurance policy with Integon General Insurance Corporation which included collision damage coverage. When Matjoulis left her car at a garage for service, the garage rented a Toyota Camry for her to use. Matjoulis totaled the Camry in a one-car accident. Integon refused to pay for the Camry, claiming Matjoulis’ policy provided only liability coverage, not collision damage coverage, for “temporary substitute” vehicles. Integon also refused to defend Matjoulis when she was sued by the rental company that owned the Camry. Matjoulis then filed this action against Integon, seeking a declaratory judgment that it was obligated both to pay for the Camry and to defend the action against her. The trial court denied Matjoulis’ motion for summary judgment and granted Integon’s cross-motion for summary judgment. Matjoulis appeals. For the reasons set out below, we affirm.

1. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

2. Matjoulis claims the language of the policy provides collision damage coverage for the Camry. Construction of a contract is generally a matter of law for the court, unless the contract contains an ambiguity that cannot be resolved under the rules of construction. Duke v. KHD Deutz of America Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996); see OCGA § 13-2-1. A coverage exclusion in an insurance policy must be clearly defined to be enforceable, and any ambiguity is to be construed against the insurer. Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. 23, 28-29 (2) (447 SE2d 89) (1994). So long as the policy does not violate the law, however, an insurer may insure against certain risks and exclude others. American Home Assur. Co. v. Smith, 218 Ga. App. 536, 538 (1) (462 SE2d 441) (1995).

The policy states: “ Tour covered auto’ means ... 4. Any auto or trailer not owned by you while used as a temporary substitute for any other auto described in this definition which is out of normal use because of its (a) breakdown; (b) repair; (c) servicing; (d) loss; or (e) destruction. This provision 4. does not apply to Part D — Coverage for Damage to Your Auto [the collision damage portion of the policy].” (Emphasis supplied.) This language clearly excludes the Camry from collision damage coverage.

Matjoulis contends, however, that the “acquired auto” portion of the policy provides such coverage, or at least creates ambiguity regarding whether such coverage exists. We do not agree. The “acquired auto” provision of the policy states that if the insured acquires a vehicle, then on the date the insured becomes the owner the acquired vehicle will have the same coverage as the vehicle it replaced, or the broadest coverage provided for any vehicle shown in the declarations, if the insured asks Integon to insure it within 30 days after the insured becomes the owner. Because the “acquired vehicle” language includes these two references to the policyholder’s owning the acquired vehicle, and because the “temporary substitute” vehicle clause clearly describes the situation in which Matjoulis drove the rented Camry, the trial court was correct in finding that the policy unambiguously excludes collision damage coverage for the Camry. Any other reading would render the “temporary substitute” language meaningless, in violation of the principle that a contract should be construed, if possible, so as to give meaning to all its terms. See Harris County v. Penton, 211 Ga. App. 498, 499 (1) (439 SE2d 729) (1993).

3. Matjoulis contends even if the policy language does not provide collision coverage for the Camry, such coverage is mandated by OCGA § 33-34-3. Matjoulis does not specify which subsection of the statute she relies upon. Nevertheless, we have read the entire statute and do not find it to be applicable to the facts of this case. Matjoulis’ statutory argument therefore fails.

4. Finally, Matjoulis contends that even absent a contractual or statutory right to coverage for the rental car, she has a right to such coverage based on public policy against exposing insureds to unanticipated liability. See generally Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (1) (383 SE2d 887) (1989). Matjoulis argues that the law should impose such coverage because she chose full coverage for her own vehicle, and was not given the option of electing full coverage for temporary substitutes.

We do not agree with Matjoulis’ analysis. Public policy does not even require collision coverage for the insured’s own vehicle. See generally Barfield v. Allstate Ins. Co., 172 Ga. App. 882, 884 (2) (324 SE2d 731) (1984). Matjoulis has shown no basis for holding that public policy requires more for temporary substitutes.

Stepho, supra, is distinguishable. It holds public policy does not allow a third party who suffers bodily injury to go unprotected under the insured’s policy when intrafamily immunity does not demand such a result. Id. at 475-477. Stepho therefore does not control the situation before us, which involves purely economic injury to one of the parties to the contract.

Decided May 14, 1997

Before Judge Wyatt Cummings Moore.

Cofer, Beauchamp, Stradley & Hicks, Frank R. Seigel, for appellant.

Smith, Howard & Ajax, James T. Brieske, for appellees.

Because there are no genuine issues of material fact and Integon is entitled to judgment as a matter of law, the trial court did not err in denying Matjoulis’ motion for summary judgment and granting summary judgment to Integon.

.Judgment affirmed.

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


text:
    A97A0760.
    JENNINGS v. THE STATE.
    (486 SE2d 693)
   Johnson, Judge.

Michael Dennis Jennings was charged with burglary, making terroristic threats, and second degree criminal damage to property. The evidence at trial showed Jennings broke into the victim’s home, poured paint on her walls and belongings, wrote on her walls and mirror, damaged or destroyed other items of her personal property, and left threatening notes. The trial court granted Jennings’ motion for directed verdict of acquittal on the criminal damage to property charge, because the state did not prove the damage exceeded $500. See OCGA § 16-7-23 (a) (1). Over Jennings’ objection, the trial court charged the jury on criminal trespass, ruling that it was a lesser included offense of criminal damage to property. The jury found Jennings guilty of criminal trespass and acquitted him of the remaining charges. In this appeal, Jennings contends the court erred in allowing the jury to consider the criminal trespass charge, because this effectively amended the indictment to add a new charge. We disagree.

“An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when . . . [i]t differs from the crime charged only in the respect that a less serious injury ... to the same person, property, or public interest . . . suffices to establish its commission.” OCGA § 16-1-6 (2). Because the salient difference between criminal trespass as defined in OCGA § 16-7-21 (a) and second degree criminal damage to property is the amount of damage required for conviction, criminal trespass is a lesser included offense of second degree criminal damage to property. See Merrell v. State, 162 Ga. App. 886, 887 (3) (293 SE2d 474) (1982). The trial court therefore did not err in submitting the criminal trespass charge to the jury.

Decided May 14, 1997

Before Judge Simmons.

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A97A0774.
    PARKER v. THE STATE.
    (486 SE2d 687)
   Johnson, Judge.

Stephen Loren Parker was convicted of burglary, rape, and aggravated assault. He appeals from the judgment of conviction and the denial of his motion for new trial. We affirm.

1. Parker contends the trial court erred in denying his motion for a directed verdict of acquittal. Such a motion should be considered under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); that is, it should be granted only if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not find the appellant guilty. See Duckworth v. State, 223 Ga. App. 250, 254-255 (3) (477 SE2d 336) (1996); see also OCGA § 17-9-1 (a).

Viewed in this light, the evidence shows the victim lived in the same mobile home park where Parker was staying with his friends, the Steversons. The victim testified that on the morning of June 14, 1995, after her husband left for work, which was customarily between 7:30 and 8:00 a.m., she awoke to find a strange man in her bedroom. The man had a Swiss army knife and forced her to have sexual intercourse with him. He did not wear any covering on his face. At trial, the victim identified Parker as the rapist.

Mr. Steverson testified Parker left the Steverson trailer on the night of June 13 and returned at about 8:15 a.m. on the morning of June 14, sweating and seemingly nervous, from the direction of the victim’s street. Parker asked Mr. Steverson to say he had returned at 7:30 a.m. and to dispose of the clothes he had been wearing. Mrs. Steverson testified that Parker asked her to wash the pants he had worn the night before, and that about two weeks after the rape, she found a Swiss army knife similar to the one described by the victim in a closet in her trailer.

Parker was arrested on June 14. After being advised of his rights, he made incriminating statements to a sheriff’s investigator. A microanalyst with the Georgia Bureau of Investigation’s Division of Forensic Sciences testified fibers found on Parker’s pants matched fibers from the sheet on the victim’s bed.

The trial court did not err in denying the motion for directed verdict of acquittal.

2. Parker contends the victim’s in-court identification of him was tainted by an allegedly improper lineup identification. He claims the lineup identification was invalid because there was no evidence the light in the trailer was sufficient for the victim to get a good look at her attacker, and because the other lineup participants’ height and hair color were dissimilar to his.

Parker did not raise the issue of the lighting in the trailer at trial. By failing to do so, he waived the right to raise it on appeal. See Smith v. State, 221 Ga. App. 428 (2) (472 SE2d 4) (1996); see generally Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). The investigator, who was present at the lineup, testified in the hearing on the motion to suppress that the hair color and stature of the other participants were similar to Parker’s. The trial court was authorized to find this testimony credible. See State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688) (1994). We therefore find no error in the admittance of the identification testimony.

3. Parker claims the trial court erred in admitting his incriminating statements to the investigator, contending they were not voluntary because he was handcuffed when he made them. Whether custodial statements are knowing and voluntary depends on the totality of the circumstances. Anderson v. State, 223 Ga. App. 125 (1) (476 SE2d 852) (1996). We review the trial court’s factual findings on the statements’ admissibility under the clear error standard. Martin v. State, 264 Ga. 826 (1) (452 SE2d 95) (1995).

The investigator testified that Parker was advised of his rights; that he did not request a lawyer or ask that the questioning stop; that no promises or threats were made to Parker; and that he was kept handcuffed because the only place available for the interview was a non-secured office area. Given this evidence, the trial court’s finding that Parker’s statements were voluntary is not clearly erroneous. See Ramos v. State, 198 Ga. App. 65, 66 (1) (400 SE2d 353) (1990); see generally Rachell v. State, 210 Ga. App. 106, 107 (2) (b) (435 SE2d 480) (1993).

4. Parker contends the trial court erred in admitting the knife into evidence because Mrs. Steverson found it almost two weeks after the crime at a place Parker stayed only occasionally, and because the victim testified she thought this knife was smaller than, though similar to, the one used by the rapist.

A trial court has broad discretion in the admission of evidence. Baker v. State, 211 Ga. App. 515, 517 (3) (439 SE2d 668) (1993). A weapon is generally admissible if it is similar to one used in a crime, even though it is not the same one. Boyd v. State, 264 Ga. 490, 491 (2) (448 SE2d 210) (1994). Based on the testimony of Mrs. Steverson and the victim, the jury would have been authorized to find either that the knife admitted was the one used in the attack, or that it was merely a similar knife. In any event, any discrepancies in the victim’s description of the knife went to the weight and credibility of the evidence, not its admissibility, and the trial court did not abuse its discretion in admitting the knife. See Davis v. State, 230 Ga. 902, 905-906 (5) (199 SE2d 779) (1973).

5. In two related enumerations of error, Parker claims the trial court erred in allowing the state to elicit testimony he contends improperly placed his character in issue.

Parker planned to call as a witness his bondsperson in this case, whom he first met when she posted bond for him on an earlier charge. He moved in limine to prevent the state from asking her how they met. The trial court denied the motion, on the ground that a witness’ relationship with the accused is relevant. See OCGA § 24-9-68. Parker called the bondsperson anyway and elicited testimony that she had heard him say he had befriended a married woman who lived in the trailer park and had the same first name as the victim. Parker asked her no questions going to his character.

During cross-examination, when it appeared the state was about to ask the witness how she met Parker, he objected. The trial court overruled the objection for the same reason it had denied the motion in limine. The witness then testified she met Parker when she posted bond for him in a theft by taking case two years before the rape trial. Parker enumerates as error both the denial of his motion in limine and the overruling of his objection.

If evidence places an accused’s character in issue, it is inadmissible unless it is relevant to some other issue in the case. See Robinson v. State, 192 Ga. App. 32, 33 (383 SE2d 593) (1989). Evidence of the relationship between a witness and the accused may be used in a criminal case to show bias or prejudice, or that the witness is testifying by reason of duress or fear. See Mitchell v. State, 207 Ga. App. 306 (1) (427 SE2d 814) (1993). The fact that the witness once posted bond for Parker shows none of these things. See generally Jenkins v. State, 215 Ga. App. 540, 541 (1) (a) (451 SE2d 457) (1994). However, even if we assume allowing this testimony was error, in view of the overwhelming admissible evidence of Parker’s guilt such error was harmless and does not require reversal. See generally Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994).

6. Parker makes two challenges to the jury charge.

(a) Parker claims the following charge on consent was a misstatement of law and was confusing to the jury: “[L]ack of resistance induced by fear is not legally cognizable consent that constitutes force.” This language is only slightly misquoted from Curtis v. State, 236 Ga. 362, 363 (1) (223 SE2d 721) (1976): “[L]ack of resistance, induced by fear, is not legally cognizable consent but is force.”

A “slip of the tongue” in a jury charge is not reversible error when, in the context of the whole charge, it clearly could not have misled or confused the jury. Tenant v. State, 218 Ga. App. 620, 622 (3) (462 SE2d 783) (1995). In this case, the charge included the statement that “a person commits rape when he has carnal knowledge of a female forcibly and against her will,” and an admonition that the state was required to prove every element of the offense beyond a reasonable doubt. This was adequate to prevent the jury from being misled or confused, so reversal is not required.

(b) Parker contends the trial court erred by instructing the jury that, in order to find him guilty of the lesser included offenses of simple battery, simple assault, and criminal trespass, it first had to find him not guilty of rape, aggravated assault, and burglary.

In Cantrell v. State, 266 Ga. 700, 703 (469 SE2d 660) (1996), the Supreme Court of Georgia held when a jury deadlocks on the greater charge, it may still be allowed to reach a verdict on a lesser included offense. However, the court in Cantrell specifically authorized an instruction to the jury that they “should not consider a lesser offense unless the defendant be found not guilty of the greater offense ... so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser offense.” Id. at 702, n. 2. In Parker’s case the jury expressed no difficulty in reaching a verdict on the greater offenses, so there was no error.

7. Parker challenges the verdict form, complaining it made no reference to the lesser included offenses of simple battery, simple assault, and criminal trespass. This issue was waived because Parker’s trial counsel specifically approved of the verdict form at trial. See Lee v. State, 265 Ga. 112, 114 (2) (b) (454 SE2d 761) (1995). Moreover, even if the issue had been preserved, there was no error. See McGinnis v. State, 183 Ga. App. 17, 20 (4) (358 SE2d 269) (1987); King v. State, 178 Ga. App. 343, 345 (3) (343 SE2d 401) (1986).

8. Parker claims his trial counsel gave him bad advice on whether to testify and was therefore ineffective; that the trial court erred in finding trial counsel effective; and that the trial court’s conduct of the hearing on the motion for new trial revealed bias against Parker.

(a) Parker contends his trial counsel advised him it would be best not to testify because he would likely place his character in issue, opening the door to introduction of his previous felony conviction. Parker maintains this advice was faulty because there was no reason to believe he could not follow his counsel’s instructions to avoid character issues, and because by not testifying he was deprived of the opportunities: (1) to inform the jury that, when he made the incriminating statements to the investigator, he felt intimidated because he was handcuffed; and (2) to inform the court that the height and hair color of the other participants in the lineup were dissimilar to Parker’s.

Decided May 14, 1997

Before Judge English.

Millard B. Morgan, Harry A. Osborne, for appellant.

To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s conduct fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Shelton v. State, 220 Ga. App. 163, 164 (2) (469 SE2d 298) (1996). The trial court’s findings on credibility matters will be upheld unless clearly erroneous, as will its ultimate determination whether the defendant received effective assistance of counsel. York v. State, 207 Ga. App. 494, 497 (2) (d) (428 SE2d 113) (1993).

At the hearing on the motion for new trial, Parker’s trial counsel testified it was Parker who first suggested that he not testify. Trial counsel said he had concurred with Parker’s suggestion because Parker had given inconsistent versions of the events in question, and because he was concerned Parker would inadvertently put his character in issue. As judge of the witnesses’ credibility, the trial court was authorized to believe trial counsel’s explanation of why Parker did not testify. See Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). Parker has therefore failed to overcome the strong presumption that his counsel’s conduct constituted reasonable trial strategy. See Bridges v. State, 205 Ga. App. 664, 665-666 (2) (423 SE2d 293) (1992).

(b) Parker asserts that two comments the judge made at the hearing on the motion for new trial showed that the judge was prejudiced against him. We have examined the transcript and do not find the challenged comments indicative of bias. Moreover, by failing to file a motion for recusal in the trial court, Parker waived any objection to the judge’s presiding in his case. See In the Interest of C. C. C., 188 Ga. App. 849, 850 (1) (374 SE2d 754) (1988).

Judgment affirmed.

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

William, T McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

       There are other situations, not relevant to the case before us, in which a “sequential” charge is inappropriate. See Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992).


text:
    A97A0817.
    GREEN v. THE STATE.
    (486 SE2d 691)
   Johnson, Judge.

A jury found Abraham Green guilty of child molestation. After his motion for new trial was denied, Green’s trial counsel filed a notice of appeal but failed to file a brief or enumerations of error, which resulted in the dismissal of the appeal. Green obtained new counsel, who sought and was granted leave to file this out-of-time appeal. We affirm the judgment of conviction and the denial of the motion for new trial.

1. Green contends the verdict was unsupported by the evidence. On appeal, we view the evidence in the light most favorable to the verdict, and the presumption of innocence no longer applies. We may not weigh the evidence or speculate which evidence the factfinder chose to believe or disbelieve. Redding v. State, 217 Ga. App. 529 (458 SE2d 168) (1995).

Viewed in this light, the evidence shows Green sold candy to neighborhood children from his residence. The victim, a boy who was then six years old, came to Green’s home to buy candy on June 3, 1995. The victim identified Green at trial as the man who pulled down the victim’s pants and touched his penis. The victim’s aunt testified the boy told her on June 3 “the candy man” had pulled down his pants and touched his penis. The aunt called the police immediately. The patrol officer who responded to the call testified the victim said that the candy man had touched his private parts, and that the candy man’s name started with the letter A. After consulting with bis supervisor, the officer turned the matter over to the detective division. Two detectives and Green’s parole officer all testified Green admitted to them he had molested the victim. One of the detectives also testified the victim told her Green had touched his private parts. This evidence was sufficient. See Heard v. State, 221 Ga. App. 166, 167 (1) (471 SE2d 22) (1996); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In Green’s brief and enumeration of errors, he raises two other issues without separately identifying them as errors: whether the trial court improperly admitted evidence impugning his character, and whether he was subjected to improper questioning after he invoked his right to an attorney. This Court is not required to consider these issues because they are not separately enumerated. In this instance, however, we will exercise our discretion and address them. See Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991); see OCGA §§ 5-6-30; 5-6-40.

Decided May 14, 1997.

Before Judge Johnson.

William D. Phillips, for appellant.

3. During questioning by the two detectives, Green admitted that when the victim came to his house on June 3, 1995, he was watching a videotape depicting male homosexual intercourse. The detectives returned to Green’s residence with Green, who had a relative bring the tape to the police car. The tape was introduced into evidence by the prosecution, over Green’s objection that it improperly placed his character in issue. Green contends the trial court erred in admitting the tape.

Possession of pornographic material is relevant to show bent of mind toward sexual conduct. The fact that it might incidentally bring the defendant’s character into issue does not make it inadmissible. Meier v. State, 190 Ga. App. 625, 628 (4) (379 SE2d 588) (1989). Green has shown no abuse of discretion.

4. Green claims that he asked for a lawyer while the detectives were questioning him, and that they continued to question him without acceding to his request. He contends the following evidence should have been suppressed because it came to the state’s attention as a result of the improper continuation of questioning: the videotape discussed above; his incriminating statements to the detectives; and his incriminating statements to his parole officer.

In the trial court, Green raised no challenge to the admissibility of his statements or the videotape based on the detectives’ alleged failure to honor his request for a lawyer. He therefore waived the right to assert such a challenge on appeal. See Stephens v. State, 214 Ga. App. 183, 186 (8) (447 SE2d 26) (1994). Moreover, it appears from the testimony of the detectives and the parole officer that Green was fully advised of his Miranda rights; that the damaging statements to the detectives preceded the attorney request; that the first admission to the parole officer was made in a telephone call Green initiated; and that the second admission to the parole officer was merely cumulative of the first. We therefore find no harmful error. See Underwood v. State, 218 Ga. App. 530, 533 (2) (462 SE2d 434) (1995).

Judgment affirmed.

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

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

       At the time of the events in question, Green was on parole for a previous offense. The jury was not informed of this, and Green’s parole officer was not identified as a parole officer in the jury’s presence.


author: Pope, Presiding Judge.

text:
    A97A0116.
    BMW FINANCIAL SERVICES, N.A., INC. v. SMOKE RISE CORPORATION et al.
    (486 SE2d 629)
   Pope, Presiding Judge.

In this action to enforce an excess mileage provision in a motor vehicle lease, the plaintiff lessor appeals from the trial court’s denial of its motion for summary judgment. Because there is no question of material fact regarding plaintiff’s right to enforce the provision, we granted its application for interlocutory appeal and now reverse.

Defendant Smoke Rise Corporation leased a BMW automobile from plaintiff, and the corporation’s president, defendant William Probst, personally guaranteed the lease. The lease, as modified in an extension agreement, provided that at the end of the lease term defendants could purchase the vehicle for $16,863.75, the estimated end-of-term wholesale value of the vehicle. It also provided that if defendants returned the vehicle rather than exercising their option to purchase it, they would have to pay a charge of “up to 15 cents” for each mile the vehicle had been driven in excess of 85,011 miles. Defendants chose not to purchase the vehicle and returned it with an odometer reading of 180,409 miles, but they refused to pay for the excess mileage. Plaintiff seeks $14,309.70, which is 15 cents times 95,398 (the difference between 180,409 and 85,011 miles), plus attorney fees.

In their defense, Smoke Rise and Probst contend the excess mileage provision is unconscionable because the $14,309.70 charge is almost as much as the projected end-of-term value of the car, and is considerably more than their experts say the actual value of the car is with 180,409 miles. Unconscionability is evaluated by looking at the circumstances at the time the contract was originally made, however, and determining whether, in light of the commercial needs of the particular trade involved, the agreement is one which “ ‘no sane man not acting under a delusion would make and ... no honest man would take advantage of.’ [Cits.]” R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966 (3) (214 SE2d 360) (1975); accord Zepp v. Mayor &c. of Athens, 180 Ga. App. 72, 79 (2) (348 SE2d 673) (1986). See also OCGA § 11-2A-108. In the context of a corporation leasing a luxury vehicle, an excess mileage charge of 15 cents per mile is not unreasonable and certainly does not shock the conscience. Such a charge serves the necessary commercial function of compensating for out-of-the-ordinary usage which will affect the residual value of the car. If at the end of the term defendants discovered the excess mileage charge was too high relative to the value of the car, they could have exercised their option to purchase it. But they did not do so, and now they cannot complain about a charge they agreed to pay.

Decided May 1, 1997

Reconsideration denied May 15, 1997

Before Judge Robins.

Fred J. Hanna, Elizabeth C. Whealler, Jerry C. Tootle, Jr., for appellant.

Ralph S. Goldberg, for appellees.

Defendants’ argument that the provision is too indefinite to enforce is also without merit. Plaintiff is entitled to anything up to 15 cents per mile, and that includes 15 cents per mile. And the fact that it was willing to take less earlier in the dispute does not undermine its right to 15 cents per mile.

The excess mileage provision is clear and unambiguous and must be enforced as written. See Saf-T-Green of Atlanta v. Lazenby Sprinkler Co., 169 Ga. App. 249, 250 (312 SE2d 163) (1983). Accordingly, the trial court erred in denying plaintiff’s motion for summary judgment.

Judgment reversed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0031.
    SMITH et al. v. CURTIS.
    (486 SE2d 699)
   Johnson, Judge.

James Stewart Smith sued William Curtis for injuries he sustained in an automobile accident. Smith’s wife, Catherine Smith, sued for loss of consortium. The jury returned a verdict awarding $3,500 in damages to Mr. Smith and no damages to Mrs. Smith. The Smiths appeal from the judgment entered on the verdict and the denial of their motion for new trial, arguing that the trial court erred in refusing to give one of their requested charges. For the reasons set out below, we affirm the judgment of the trial court.

1. The requested charge provided that if the jury finds Mr. Smith’s back injury resulted from the combined negligence of Curtis and the negligence of another motorist in a previous accident, Curtis bears the burden of showing how liability should be apportioned between the two tortfeasors. In a charge conference held prior to the court instructing the jury, the trial judge informed counsel that he would not give the requested charge because another charge covered the same principle. Counsel for the Smiths objected to the court’s refusal to give the charge, arguing that the charge reflects the present state of the law in Georgia. The trial court did not give the requested charge to the jury and, at the conclusion of the jury charge, the trial judge asked counsel for the Smiths if he had anything to say about the court’s charge. The Smiths’ counsel replied that he did not. Under these circumstances, the Smiths have waived their objection to the jury charge.

First, by responding to the court’s inquiry at the end of the jury charge that he had nothing to say about the charge, counsel expressly acquiesced in the jury charge as given. As a result, any objection to the omission of the requested charge was waived. See Bell v. Samaritano, 196 Ga. App. 612, 613 (2) (396 SE2d 520) (1990); Phillips v. State, 176 Ga. App. 834, 835 (1) (338 SE2d 57) (1985); Salmon v. State, 249 Ga. 785, 786-787 (3) (294 SE2d 500) (1982); see also Roura v. State, 214 Ga. App. 43, 45 (2) (a) (447 SE2d 52) (1994).

Second, an objection to an instruction made only at a charge conference is insufficient to preserve the matter for appellate review. Brown v. Sims, 174 Ga. App. 243, 244 (2) (329 SE2d 523) (1985); Mack v. Barnes, 128 Ga. App. 328, 329-330 (2) (196 SE2d 684) (1973); see Rice v. Rumph, 171 Ga. App. 301 (319 SE2d 125) (1984). In order to preserve the issue, the Smiths were required to renew their objection to the court’s refusal to give the requested charge after the court instructed the jury, but they did not. See Wilson v. State, 259 Ga. 55, 58 (6) (376 SE2d 676) (1989); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510) (1989). Accordingly, the objection was not preserved for our review.

2. Even if the objection to the court’s failure to charge had been properly preserved, no error has been shown. For a refusal to give a requested charge to be error, the request must be entirely correct, accurate, adjusted to the pleadings, law and evidence, and not otherwise covered in the general charge. Salvador v. Coppinger, 198 Ga. App. 386, 388 (1) (b) (401 SE2d 590) (1991). In order to show the requested charge was adjusted to the evidence and otherwise appropriate, the Smiths are required by the rules of this Court to specifically refer to evidence in the record or the transcript which supports their claim that their injuries resulted from the combined negligence of Curtis and another tortfeasor. See Court of Appeals Rule 27 (c) (3) (i). The Smiths have made no such citations to the record or transcript. They have therefore failed to meet their burden of showing error by the record. See Studard v. Dept. of Transp., 219 Ga. App. 643, 646 (3) (466 SE2d 236) (1995); Strickland v. English, 115 Ga. App. 384 (2) (154 SE2d 710) (1967).

Decided May 15, 1997.

Before Judge Salmon.

Mundy & Gammage, John S. Husser, for appellants.

E. Wycliffe Orr, Kristine E. Orr, for appellee.

Furthermore, we note that the case which the Smiths cited to the trial court in support of their request to give the charge is inapposite. That case, Polston v. Boomershine Pontiac &c., 262 Ga. 616 (423 SE2d 659) (1992), involves crashworthiness and enhancement of injury where the tortious conduct of another driver, the car’s manufacturer and the car dealer combine to harm the plaintiff in a single accident. The instant case, on the other hand, involves two separate collisions occurring a year apart. The two accidents are not sufficiently connected to constitute the “same transaction, occurrence, or series of transactions or occurrences.” Accordingly, the actors are not treated as joint tortfeasors and do not bear the burden of proving apportionment as contemplated by Polston. See Brinks, Inc. v. Robinson, 215 Ga. App. 865, 866-867 (1) (452 SE2d 788) (1994). We point out that the trial court instructed the jury that if they found Curtis’ negligence resulted in any aggravation of a pre-existing condition, the Smiths could recover for that aggravation.

Judgment affirmed.

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

       Although normally an application would be required for this appeal from a judgment of $10,000 or less, no application is required for the appeal of a “zero” award. See OCGA § 5-6-35 (a) (6); Bales v. Shelton, 260 Ga. 335 (391 SE2d 394) (1990). Therefore, the judgment entered as to Mrs. Smith is directly appealable. As a consequence, the judgment entered in favor of Mr. Smith is also directly appealable. See OCGA § 5-6-34 (d).


text:
    A97A0173.
    WIELAND v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (486 SE2d 694)
   Johnson, Judge.

Ethicon, Inc. employed Freddie Lee Ausburn as a mechanic. Ausburn also rented motor vehicles and construction equipment to Ethicon as an independent contractor. Ausburn injured Ethicon employee Wesley Bill Wieland as the two helped to demolish a building for Ethicon. At issue in this appeal is whether Ausburn and Wieland were acting as “fellow employees” at the time of the injury. If they were, Ausburn’s insurance policy from Georgia Farm Bureau Mutual Insurance Company does not cover Wieland’s injury. Because no genuine issue of material fact remains and they were acting as “fellow employees” when the accident occurred, we affirm the grant of summary judgment to Georgia Farm Bureau.

Summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant of summary-judgment de novo, and must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592 (472 SE2d 140) (1996).

Viewed in this light, the evidence shows Ausburn was employed as a general mechanic by Ethicon, for which he earned an hourly wage and received a biweekly paycheck. Ausburn also owned a truck, bulldozer, backhoe, and other equipment that he frequently rented to Ethicon for $100 to $125 per day. Ethicon paid Ausburn approximately once each quarter for the equipment rentals.

Ausburn purchased an insurance policy from Georgia Farm Bureau that covered several of his vehicles, including a flatbed truck. The policy contained the following exclusion: “This insurance does not apply to any of the following: ... 5. FELLOW EMPLOYEE. ‘Bodily injury’ to any fellow employee of the ‘insured’ arising out of and in the course of the fellow employee’s employment.”

On August 24, 1994, Ethicon rented the truck and Ausburn drove it. At no charge to Ethicon, Ausburn also supplied a trailer attached to the truck. With the help of other Ethicon employees, Ausburn loaded a roof truss from a building Ethicon was demolishing onto the trailer. Ausburn then drove the truck along a gravel road toward the plant entrance. Wieland, who had been helping with the demolition, was walking alongside the gravel road. Wieland was struck and injured by the truss or some part of the truck or trailer as Ausburn drove by him.

Wieland received workers’ compensation benefits from Ethicon’s insurer, and brought a negligence action against Ausburn. Georgia Farm Bureau answered on Ausburn’s behalf after obtaining his signature on a “Notice and Acknowledgement of Non-Waiver of Rights,” preserving Georgia Farm Bureau’s right to assert the accident was not covered by Ausburn’s policy. Georgia Farm Bureau then brought this declaratory judgment action against Ausburn and Wieland, seeking a determination that the accident was excluded from coverage by the “fellow employee” clause. In opposing Georgia Farm Bureau’s motion for summary judgment, Wieland contended the “fellow employee” exclusion did not apply because Ausburn was acting as an independent contractor for Ethicon, not as its employee, when Wieland was injured. The trial court granted the motion, and Wieland appeals.

1. Wieland points to evidence showing Ausburn was sometimes paid through purchase orders for “hauls” or “trips” using his truck. Wieland argues this creates a genuine issue of material fact whether Ausburn acted as an independent contractor in furnishing services, not just equipment, to Ethicon. Ausburn’s supervisor, however, testified Ausburn received his regular hourly wage whenever he performed services for Ethicon, even when he used his own equipment. And regardless of the basis on which Ausburn may have been compensated on other occasions, Ausburn himself affirmed he was “on the clock” when Wieland was injured. On motion for summary judgment, circumstantial evidence that implies, but does not demand, a finding of fact has no probative value against positive and uncontradicted evidence that no such fact exists. See Bob v. Hardy, 222 Ga. App. 550, 553-554 (4) (474 SE2d 658) (1996). This argument is therefore without merit.

2. Wieland claims Ethicon did not closely supervise Ausburn’s work on the day in question, but merely assigned him to help demolish the building and to dispose of the truss. Wieland also points to testimony that, on his own initiative, Ausburn was in the process of hauling the truss to his own home when he injured Wieland. Wieland contends that because Ethicon merely required particular results from Ausburn, and did not insist on a particular manner in which the work was to be accomplished, Ausburn was acting as an independent contractor and not an employee. See generally Neese v. Britt Home Furnishings, 222 Ga. App. 292, 293 (2) (474 SE2d 44) (1996).

We do not agree. One is an employee if the employer retains the right to control the manner, method and means of performance, even if the employer does not exercise that right. Atlanta Braves v. Leslie, 190 Ga. App. 49, 51 (2) (378 SE2d 133) (1989). The existence of such a right of control is inferred where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a set price. Id. As discussed in Division 1 above, Ausburn was “on the clock” for his general employment services to Ethicon when the accident occurred. The trial court was therefore authorized to infer that Ethicon retained a right to control Ausburn’s work, and to find that Ausburn was Wieland’s “fellow employee” when he was injured.

3. Wieland claims that even if Ausburn was acting as an Ethicon employee at the time of Wieland’s injury, that injury is covered by another clause of the insurance policy, which provides that one using Ausburn’s equipment with his permission is an “insured.” Wieland contends Ethicon should be considered the “user” of the truck on the day in question, regardless of whether Ethicon assigned Ausburn or someone else to drive it, because the truck was serving Ethicon’s purposes.

Even if Ethicon were considered an insured user, however, the policy still would not provide coverage for Wieland’s injury. This is because section II.B.4.a. of the policy excludes from coverage “[b]odily injury to ... an employee of the ‘insured’ arising out of and in the course of employment by the ‘insured.’ ” Accordingly, this argument is without merit.

Decided May 15, 1997.

Before Judge Woods.

Nelson & Hill, Janet E. Hill, Kesler T. Roberts, for appellant.

McClure, Ramsay & Dickerson, John A. Dickerson, Luther H. Beck, Jr., Thomas A. Dowdy, for appellee.

Judgment affirmed.

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


text:
    A97A0213.
    YOUHOING v. THE STATE.
    (487 SE2d 86)
   Pope, Presiding Judge.

Defendant Shenniele Sandra Youhoing was charged by accusation with misdemeanor obstruction (OCGA § 16-10-24 (a)), parking in a fire lane (OCGA § 40-6-203), and operating a motor vehicle in this state without obtaining a Georgia driver’s license within 30 days of becoming a state resident (OCGA § 40-5-20 (a)). Following a jury trial, defendant was convicted on the parking and misdemeanor obstruction offenses. On appeal, defendant contends that the trial court erred in failing to grant a directed verdict in her favor regarding the obstruction charge and in failing to adequately instruct the jury regarding certain elements of that offense. Finding no merit to either contention, we affirm.

Viewed in a light most favorable to the verdict, Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996), the evidence shows that Officers Fuller and McKenzie were on patrol in a shopping center when they noticed defendant’s car parked in the fire lane in front of a fast-food restaurant. After the officers spoke with defendant’s husband, defendant exited the restaurant and approached Fuller. Defendant admitted to Fuller that she had parked the car in the fire lane, and Fuller asked to see defendant’s driver’s license. In response to Fuller’s request, defendant produced a New Jersey license. Fuller testified that at that time defendant told him that she had been living in Georgia for six weeks. She further supplied him with a local address.

Based on the above, Fuller wrote out citations for the parking and licensing violations. Before issuing the citations, however, Fuller attempted to explain them to defendant, as well as the fact that he was going to keep her license in lieu of bail pursuant to OCGA § 17-6-11 (a). Defendant became irate when Fuller told her he was going to keep her license. Waving her finger in Fuller’s face and screaming, defendant repeatedly told Fuller that he could not keep her license and that she would rather be taken to jail. When Fuller attempted to comply with defendant’s request, however, defendant backed away saying “no — no.” At that point, Fuller took defendant by the left arm and turned her around. As Fuller reached for his handcuffs, defendant fell to the ground and began screaming “police brutality.” Once on the ground, defendant rolled around in a futile attempt to keep from being handcuffed. According to several witnesses, Fuller did nothing to cause defendant’s fall, and defendant appeared to fake the fall.

Thereafter, Fuller and McKenzie attempted to place defendant in their patrol car, but when defendant screamed that she was hurt, they instead allowed her to sit on the ground and called for an ambulance. As McKenzie rode with defendant to the hospital in the ambulance, Fuller obtained a warrant for misdemeanor obstruction. After having numerous tests performed on her at the hospital, defendant was released into Fuller and McKenzie’s custody and transferred to jail.

1. Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties . . .” is guilty of misdemeanor obstruction. See Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992). In her first enumeration of error, defendant argues that there was insufficient evidence that Fuller was lawfully discharging his official duties when he placed defendant under custodial arrest because her alleged parking and licensing offenses were not committed in Fuller’s immediate presence and because Fuller had already issued citations to defendant for these offenses, thereby making a non-custodial arrest. As such, defendant contends the state failed to prove a key element of misdemeanor obstruction, and thus, that defendant was entitled to a directed verdict on that charge. We cannot agree.

Contrary to defendant’s assertion, the evidence of record demonstrates that Fuller never actually gave or served any citations on defendant. Accordingly, there is no merit to defendant’s claim that Fuller’s actions in doing so precluded him from lawfully implementing a full custodial arrest.

Defendant’s contention that her custodial arrest was unlawful because the parking and licensing offenses were not committed in Fuller’s presence is also meritless. Under OCGA § 17-4-20 (a), a law enforcement officer may arrest a person for offenses “committed in [the officer’s] presence or within the officer’s immediate knowledge.” An officer does not, however, actually have to see a suspect commit the act which constitutes a crime for the crime to be considered as having been committed within the officer’s presence or general knowledge. See Carranza v. State, 266 Ga. 263 (1) (467 SE2d 315) (1996); King v. State, 161 Ga. App. 382, 383 (1) (288 SE2d 644) (1982). In the instant case, through the use of his senses, and based on his conversation with defendant, examination of her license and the location of her car, Fuller easily gained the personal knowledge and probable cause necessary to initiate an arrest pursuant to OCGA § 17-4-20 (a). Id. And, due to the general exigencies existing in cases like this, which involve the transient motoring public, no warrant was required for the arrest to be lawful. Compare Carranza, 266 Ga. 263 (1). While it was within Fuller’s discretion in this case to make a non-custodial arrest by issuing a citation to defendant, as he originally began to do, he was not required to do so, and, armed with personal knowledge and probable cause, his decision to instead implement a full custodial arrest was lawful and authorized. See Baker v. State, 202 Ga. App. 73 (1) (413 SE2d 251) (1991); Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). This is especially true in light of defendant’s actions and statements demonstrating that upon request she would not surrender her license in lieu of bail in the event she was given any citations.

Decided May 15, 1997

Before Judge Carbo.

David L. Miller, for appellant.

Clearly, there was also sufficient evidence for a jury to conclude that defendant intentionally hindered Fuller in the performance of his official duties by her actions when Fuller attempted to place her under custodial arrest. Therefore, based on all of the above, it follows that there was sufficient evidence of each of the elements necessary for the jury to convict defendant of misdemeanor obstruction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Consequently, defendant was not entitled to a directed verdict of acquittal on the obstruction charge.

2. In her second and third enumerations, defendant contends the trial court failed to adequately charge the jury regarding the elements that must be proven to support a conviction for misdemeanor obstruction. Upon thorough review of the trial court’s charge, we find no merit to this contention. Moreover, defendant fails to point to any specific instruction she requested in writing that was not given, and it is undisputed that defendant did not object below to the charge on the grounds asserted on appeal or reserve the right to do so when the trial court asked defendant if she had any objection to the charge. Consequently, defendant has failed to preserve the issue for appeal. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994).

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

Shenniele Youhoing, pro se.

Keith C. Martin, Solicitor, Clara E. Bucci, Assistant Solicitor, for appellee.


author: Smith, Judge.

text:
    A97A0351.
    HILLIARD v. THE STATE.
    (487 SE2d 81)
   Smith, Judge.

William Horace Hilliard was convicted of the offense of aggravated child molestation, OCGA § 16-6-4 (c). His motion for new trial as amended was denied, and he appeals. Because we conclude that the trial court erroneously allowed an expert witness to testify that she believed the victim was molested, and because that error was not harmless, we reverse.

1. Construed to support the verdict, evidence was presented that in July 1987, the victim, ten years old at the time, went fishing with Hilliard, his uncle by marriage. The victim testified that upon their return to Hilliard’s house, while the victim was washing his hands in the bathroom, Hilliard walked up behind him, straddled him, and grabbed him in the crotch. According to the victim, he “jumped back and started to walk out,” but Hilliard tackled him to the floor, pulled down his shorts, and “stuck his penis” in him.

The victim’s school counselor, who was qualified at trial as an expert, testified that the victim told her in March 1993 that “fondling both under and over his clothes” had occurred and that Hilliard had attempted anal and oral sex although the victim “was able to get away.” She testified concerning her observation of the victim’s demeanor when he reported the alleged abuse: He blushed, had difficulty using “very specific sexual words,” was shaking and crying, and “scrunched up in his chair [and] wrapped his arms around himself.” The counselor testified that this type of demeanor usually occurs after a very traumatic, embarrassing event. Over objection, the witness also stated: “I firmly believe that he was molested.” Hilliard maintains that this witness impermissibly testified concerning the ultimate issue to be decided by the jury. We agree.

The general rule concerning admissibility of expert testimony as to the ultimate issue is this: “[A]n expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. [Cit.]” Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987).

The case law is in stark conflict concerning application of this rule. In State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986), the Supreme Court ruled admissible a pediatrician’s testimony that the victim had been sexually abused. The court found persuasive the fact that the witness reached this conclusion based on her physical examination of the child in addition to the history related by the child. Further, the court determined that the doctor’s conclusion was not one which the jurors would “ordinarily be able to draw for themselves.” Id. at 450 (2). See also Johnson v. State, 186 Ga. App. 77, 78 (366 SE2d 409) (1988) (same pediatrician’s testimony that victim “was probably molested” upheld). Although Butler is not mentioned in Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992), we stated in Karvonen that a pediatrician’s opinion testimony that the victim had been molested was admissible, since the witness did not comment as to whether the appellant was the molester. See also Strickland v. State, 212 Ga. App. 170, 173 (4) (441 SE2d 494) (1994) (citing Karvonen, witness’s diagnosis, of “suspected” physical child abuse not ground for mistrial where trial court gave curative instruction).

Allison v. State, supra, however, has generated a different view. In Allison, testimony concerning the “child sexual abuse syndrome” was presented. One witness, who twice met with the victim, testified that the victim fell within the syndrome and that, in his opinion, she had been sexually abused. Id. at 851-852. The Supreme Court found this evidence inadmissible because the jury had the benefit of “extensive testimony” concerning the child abuse syndrome and testimony that the victim exhibited symptoms consistent with the syndrome. Based on this evidence, the jury “was fully capable of deciding — upon their own — whether the child in fact was abused, and, if so, whether [appellant] did it.” Id. at 853 (6).

Relying on Allison, in Coxwell v. State, 195 Ga. App. 751 (395 SE2d 38) (1990) we concluded that a DFACS worker’s opinion testimony that the victim had been molested was not admissible. See also Remine v. State, 203 Ga. App. 30, 31 (2) (416 SE2d 326) (1992) (expert testimony to effect that child has in fact been abused not permissible). The Supreme Court similarly relied on Allison in Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991) to hold inadmissible a physician’s testimony as to whether the victim was sexually molested. Finally, in Sims v. State, 260 Ga. 782, 784 (4) (399 SE2d 924) (1991), the Supreme Court held that a DFACS worker’s opinion that the victim was sexually molested was erroneously admitted. The testimony was impermissibly based on the victim’s credibility, was not based on the witness’s knowledge as an expert, and was not beyond the ken of jurors.

We find the latter view more persuasive here. Notwithstanding Karvonen and Strickland (neither of which addresses Butler or Allison and their respective progenies), Harris, supra, the most recent Supreme Court pronouncement on the issue, controls. There is nothing to distinguish this case which would allow a different result. Harris held that an expert in a child molestation case cannot give his or her opinion as to whether a child has been molested sexually. In that case, the opinion was based on a physical examination of the child. Although the counselor’s opinion here was not based on a physical examination of the child’s body but rather on the child’s behavior and demeanor during her interview of him, both opinions are rooted in observation of facts exhibited by the victim.

Harris, a four-to-three opinion, was regarded by the majority as controlled by Allison, supra. As noted above, the “established rule” applied in Allison is that an expert cannot testify as to an opinion on the existence or nonexistence of a fact, i.e., whether a child has been abused sexually, unless the inference to be drawn from the evidence is beyond the jurors’ ken. The question thus is: Did the jury in this case need the counselor’s conclusion, based on her observation of the victim’s behavior and demeanor during an interview, as to the meaning or significance of that behavior and demeanor as it related to molestation? Or was the jury equipped by this evidence to determine for itself, and without the expert’s opinion, whether molestation occurred?

The jury in Allison had the benefit of extensive testimony as to the lineaments of the child abuse syndrome, plus testimony that the child exhibited several symptoms consistent with the syndrome. The Supreme Court held that the jury thus was equipped to determine the facts on its own, without the opinion of the expert to guide it. In Harris, the jury presumably had the testimony of the physician describing what he observed in the physical examination. (The term “presumably” is used because the opinion does not indicate one way or the other, but such testimony would be necessary for the outcome.) The Supreme Court held that the physician’s assessment of those facts — his opinion whether those facts pointed to the fact of molestation — was inadmissible.

Here there is no evidence of physical manifestations of molestation which an examining expert could describe to a jury, nor are there indicia of a professionally-recognized syndrome. But there is a description of the child’s behavior and demeanor when being interviewed by the experienced counselor who specialized in treating people who have been sexually abused. Hilliard does not enumerate as error the court’s allowing the witness to testify as to the specifics of the child’s behavior or even her interpretation of it, that what the child did and how he reacted during the interview showed he had experienced a traumatic event which he found very embarrassing and difficult to reveal. He complains only that the counselor was permitted to testify that, based on her observation and analysis of what she observed, the child had been molested.

We cannot say that the issue of whether the victim was molested was beyond the ken of the jurors. “Where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.” (Citations and punctuation omitted.) Remine, supra, 203 Ga. App. at 30-31 (2).

This was not a case “shrouded in the mystery of professional skill or knowledge.” Id. The counselor merely provided the jury with testimony concerning her observations of the victim’s demeanor and her opinion that this demeanor was indicative of great trauma. She did not testify to scientific or psychological matters the jury would need expert assistance to understand. The expression of the counselor’s opinion was not justified as necessary for the jury’s understanding of the evidence so as to be able to form its own conclusion of whether molestation occurred, by inference from evidence of facts and, in this case, the expert’s analysis. Allowing the expert to step beyond that and give her opinion as to what event or experience causéd the victim’s behavior constituted an incursion into the jury’s factfinding role and a breach of OCGA § 24-9-67 as the Supreme Court has construed it.

Furthermore, the issue in this case was not simply whether Hilliard committed sodomy upon the victim, but whether the act occurred at all. The victim testified that Hilliard committed sodomy, and Hilliard testified that he did not. The expert’s testimony that the victim was molested went far beyond educating the jury as to matters beyond the knowledge of laymen; it impermissibly offered her opinion of the victim’s credibility, see Sims at 784, and invaded the jury’s exclusive province of resolving conflicting evidence. This evidence was inappropriately admitted.

Finally, the testimony was not harmless. In Stamey v. State, 194 Ga. App. 305 (390 SE2d 409) (1990), in the context of an ineffective assistance claim, we concluded that a witness’s erroneous statement that she believed the victim to be truthful did not usurp the jury’s authority on the issue of witness credibility. Id. at 306 (1) (a). We based our holding on the witness’s exhaustive explanation of the criteria she used for determining the victim’s credibility. Id. “Given this ‘other’ testimony, the jury was able to determine for itself the truthfulness and credibility of the victim and could accept or reject the [witness’s] opinion on this matter.” Lagana v. State, 219 Ga. App. 220, 221 (464 SE2d 625) (1995). We therefore concluded that no reasonable probability existed “that but for such error, the verdict would have been different.” Stamey at 306.

In this case, although we do not address an ineffective assistance claim, the analysis of whether the improper testimony was harmful error is similar: whether it is highly probable that the erroneous evidence did not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Here, the evidence of Hilliard’s guilt was not overwhelming; it depended heavily on the credibility of the witnesses. Moreover, no “other” testimony was presented, like that in Stamey, from which the jury could reach an independent conclusion concerning the victim’s credibility. The witness’s opinion that the victim had been molested was therefore not superfluous; it usurped the jury’s authority. Under these circumstances, it was highly probable that the erroneous testimony contributed to the verdict, and a new trial is required. See Lagana, supra; Flowers v. State, 220 Ga. App. 814, 815-816 (1) (468 SE2d 199) (1996), overruled in part on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (1) (479 SE2d 125) (1996).

2. We address here Hilliard’s remaining enumeration because the issue raised by him may arise on retrial.

Hilliard maintains that the trial court’s charge erroneously raised the possibility that the jury convicted him of aggravated child molestation in a manner not charged in the indictment. OCGA § 16-6-4 (c), charged by the trial court in its entirety, provides that a person commits the offense of aggravated child molestation by committing an offense of child molestation that physically injures the child or that involves an act of sodomy. The indictment charged Hilliard only with aggravated child molestation by committing sodomy. Hilliard points to evidence that at the time of the attack, Hilliard was much larger in stature than the victim, that Hilliard tackled the victim, and that the victim cried. The victim also testified, when asked how he felt during the attack, that “it hurt. I didn’t know what was going on. I had never experienced anything like that happening to me.” Based on this evidence and our holding in Perguson v. State, 221 Ga. App. 212 (470 SE2d 909) (1996), Hilliard maintains that the court’s charge may have allowed the jury to convict him of aggravated child molestation based upon acts of child molestation that physically injured the victim, which was not charged in the indictment.

Decided May 15, 1997

Before Judge Bryant.

Germano, Kimmey & Cheatwood, John L. Kimmey III, C. David Turk III, for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

We disagree. In Perguson, too, the trial court charged OCGA § 16-6-4 (c) in its entirety, although the defendant was not charged with an act of child molestation that physically injured the child. But under the evidence presented in Perguson we concluded that the jury could reasonably have concluded that oral sodomy did not occur and still have found defendant guilty of aggravated child molestation because it believed he committed an act of child molestation that injured the victim.

The concerns addressed in Perguson are not present here. In Perguson, evidence was presented of two different sexual acts — child molestation by committing oral sodomy, and child molestation that physically injured the victim by severely penetrating her hymen. Here, the only inference of injury arising from the evidence presented was that the victim was injured during the act of anal intercourse itself. For the jury to have believed that the victim was injured, it was also required to believe that the sodomy occurred. Because no evidence was presented showing that the victim was injured other than during the act of sodomy, no danger existed that the charge could mislead the jury into believing that it could convict Hilliard of child molestation based on acts not charged in the indictment.

Judgment reversed.

Beasley, J, and Senior Appellate Judge Harold R. Banke concur.

       Hilliard was also indicted on a charge of child molestation against another victim. He was acquitted of that charge, however.

       Although Sims does not cite Allison, it does cite Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989), which relies on Allison. Compare Edmonson v. State, 212 Ga. App. 449, 450-451 (1) (442 SE2d 300) (1994) and Hall v. State, 201 Ga. App. 626, 627 (411 SE2d 777) (1991) (both cases distinguished on basis that there was no attempt made to elicit direct expert opinion on ultimate issue of whether victims were raped or molested).

       We note that Stamey is not binding precedent: it is a decision by a single three-judge division of this Court with two of the judges concurring specially. See Court of Appeals Rule 33 (a).

       Evidence was presented in Perguson that oral sodomy had occurred and that the victim’s hymen was torn in a manner indicating a painful “severe penetrating injury.” Id. at 214 (1).


author: Birdsong, Presiding Judge.

text:
    A97A0684, A97A0685.
    COVINGTON v. THE STATE (two cases).
    (486 SE2d 706)
   Birdsong, Presiding Judge.

In Case No. A97A0684, Charles Melvin Covington appeals his conviction on April 9, 1996 for trafficking in cocaine, possession of cocaine with the intent to distribute, possession of cocaine, and possession and use of drug related objects on September 2,1994. He contends the trial court erred by denying his motion for a directed verdict on all counts, and also erred by sentencing him to separate sentences for trafficking, possession with intent to distribute and possession of cocaine. He further contends the evidence was insufficient to sustain his conviction.

In Case No. A97A0685, Covington appeals his convictions on March 11, 1996 for two counts of selling cocaine on June 24, 1994, and July 30, 1994. He contends the trial court erred by allowing a verbal rather than a written police report and also erred by rendering an improper sentence. He also contends the evidence is insufficient to sustain his conviction. Held,-.

Case No. A97A0684

1. “ ‘[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.’ ” Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). Further, in reviewing the denial of a motion for directed verdict of acquittal made at the close of the State’s case, a reviewing court can consider all the evidence in the case while determining whether the trial court properly denied the motion (Bethay v. State, 235 Ga. 371, 374-375 (1) (219 SE2d 743)), and we must view the evidence in the light most favorable to the verdict. Humphrey v. State, supra. Review of all the evidence in this manner shows that a search warrant was executed at the home of Covington’s mother, that 444 grams of cocaine mixed with Benzocaine in an aluminum pan were found in a safe in the mother’s bedroom, that, even though she later denied saying it, the mother stated that the safe was Covington’s, and that in another bedroom used by Covington the police found his ID card, clothing, scales, plastic bags, aluminum pans similar to that found in the safe, Benzocaine, and a vial with a spoon attached. Further, Covington’s sister testified that he was dealing drugs out of their mother’s home. This is sufficient evidence from which any rational trier of fact could find beyond a reasonable doubt that Covington was guilty of the offenses of which he was convicted even though Covington was not present when the search warrant was executed. Jackson v. Virginia, supra. Therefore, the trial court did not err by denying Covington’s motion for a directed verdict of acquittal. Moreover, for these same reasons the evidence is sufficient to sustain his conviction. Id.

2. Covington also contends that the evidence was insufficient to sustain his conviction of trafficking in cocaine in violation of OCGA § 16-13-31 (a) because the expert witness from the crime lab did not testify that the entire sample submitted contained ten percent cocaine. See Byers v. State, 204 Ga. App. 552 (420 SE2d 23). The expert testified, however, that the items submitted to him for testing had a total weight of 444 grams, and that he tested the sample from different locations in the whole sample. As a result of his testing, he testified that the cocaine concentration of the sample was 32 percent. We are satisfied that this testimony was sufficient to establish a violation of OCGA § 16-13-31 (a): Any person who is knowingly in possession of twenty-eight grams or more of cocaine or of any mixture of cocaine with a purity of ten percent or more commits the felony offense of trafficking in cocaine. As the evidence in this case differs from that in Byers v. State, supra, in which there was no testimony concerning the purity of the cocaine, Byers is not controlling.

3. ‘We agree, however, that the life sentence imposed on defendant must be reversed. The record shows the State sought a life sentence pursuant to OCGA § 16-13-30 (d) because defendant had been convicted of two previous offenses of selling cocaine. The State concedes, however, that the previous convictions were not final at the time the sentence was imposed in the case at hand because the previous convictions [are on appeal in Case No. A97A0685]. When previous convictions are relied upon as the ground for imposing enhanced punishment, the convictions must be final. See Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969) and Mitchell v. State, 202 Ga. App. 100 (2) (413 SE2d 517) (1991) (applying the stated rule to sentencing for repeat offenders pursuant to OCGA § 17-10-7). This rule also applies to enhanced punishment pursuant to OCGA § 16-13-30 (d).” Dunn v. State, 208 Ga. App. 197, 198 (430 SE2d 50). Accordingly, upon remand Covington should be resentenced for the offense of which he was convicted by the jury. Melton v. State, 216 Ga. App. 215, 216 (454 SE2d 545). Any error concerning the separate sentences imposed for the offenses of which Covington was convicted has not been supported by argument and is deemed abandoned. Court of Appeals Rule 27 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

Decided May 15, 1997.

Before Judge Salmon.

Farless & Newton, Floyd H. Farless, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Case No. A97A0685

4. We find no error in the trial court allowing the undercover police officer who made two purchases of cocaine from Covington to testify about the description of the man from whom she purchased the cocaine even though she could not produce the written notes on which she first recorded description. This is not the kind of evidence covered by the best evidence rule because the officer was not trying to prove the contents of a writing. See OCGA § 24-5-4.

5. Applying the rules discussed above in Division 1, the evidence was sufficient to sustain Covington’s convictions. The testimony of the police officer that she purchased cocaine from Covington, standing alone, is sufficient to support these convictions. Jackson v. Virginia, supra.

6. Although the convictions in this appeal are affirmed, we must again vacate the sentence imposed because the trial court was not authorized to sentence Covington as a recidivist under OCGA § 17-10-7 as the offenses on which the State relied occurred in September 1994, after these offenses. “[I]t is not the date of the conviction which determines the applicability of [OCGA § 17-10-7], but the date of the commission of the offense.” Mays v. State, 262 Ga. 90, 91 (1) (a) (414 SE2d 481). Therefore the sentences must be vacated and the case remanded to the trial court for resentencing.

Judgment affirmed, sentences vacated, and cases remanded for resentencing.

Ruffin and Eldridge, JJ, concur.


text:
    A97A0732.
    HALL v. STATE OF GEORGIA.
    (486 SE2d 710)
   Pope, Presiding Judge.

Suspecting Rodriquez Hall of drug activity, an Augusta police officer stopped him to ask questions. Hall voluntarily pulled from his pocket a bundle of cash totaling $3,800, which he told the officer he had earned “gambling in Hyde Park, throwing dice.” Pursuant to OCGA § 16-12-32, the officer seized the money as contraband derived from gambling but did not charge Hall with any offense. After a bench trial, the trial court declared the money forfeited. Hall appeals, arguing that the evidence is insufficient to support the forfeiture because his “confession” to the source of the money was uncorroborated.

Decided May 15, 1997.

Before Judge Mulherin.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

We find Hall’s argument without merit and the evidence sufficient. Although an uncorroborated confession will not support a criminal conviction, OCGA § 24-3-53, a forfeiture action is a civil proceeding. See Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996). The State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases. Griffin v. State of Ga., 211 Ga. App. 750 (2) (440 SE2d 483) (1994). In a civil case, an out-of-court confession is an admission against interest, and its introduction into evidence makes out a prima facie case for the plaintiff. See Clark v. Toms, 181 Ga. App. 557 (353 SE2d 54) (1987); Edwards v. Bullard, 131 Ga. App. 34, 37 (3) (205 SE2d 115) (1974). Here, Hall’s statement constituted an admission that the $3,800 was “derived from” gambling and was subject to forfeiture. See OCGA § 16-12-32 (b). With the State’s prima facie case complete, the trial court was authorized to find in the State’s favor and declare these funds forfeited. See Rabern v. State of Ga., 221 Ga. App. 874, 877-878 (3) (473 SE2d 547) (1996).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A97A0812.
    WOFFORD v. THE STATE.
    (486 SE2d 697)
   Pope, Presiding Judge.

Paul Wofford was tried and convicted of rape, statutory rape and child molestation. The court merged the child molestation with the rape count and Wofford appeals, arguing that the evidence was insufficient to convict; that the court violated his right to confront witnesses and erroneously intimated its opinion regarding the credibility of witnesses; and that the court erroneously failed to merge the crimes for which he was convicted. We agree that the rape and statutory rape counts merged under the facts of this case, but find the remainder of Wofford’s arguments without merit. Accordingly, we affirm the conviction and sentence for the rape count and vacate the conviction and sentence on the statutory rape count.

Viewing the evidence in the light most favorable to the verdict, in the early morning of September 20, 1995, the 11-year-old victim went to Wofford’s house to visit his children. Wofford locked the doors in the house and.told the victim to lie down. He then took her clothes off and raped her. The victim told Wofford to stop and unsuccessfully tried to push him off her.

Immediately after the incident, the victim told an emergency room nurse and Officer Hilburn of the Rockmart police department that Wofford had raped her. Testimony of the victim’s brother, who witnessed the rape, corroborated the victim’s account of the events.

At trial, Officer Hilburn testified that he interviewed Wofford on the same day and Wofford admitted that he had had sexual intercourse that morning with the victim. Evidence regarding similar transactions established that fifteen years earlier Wofford molested his eight- and four-year-old nieces.

1. Wofford argues that the court violated the double jeopardy provisions of OCGA §§ 16-1-6 and 16-1-7. He argues that the prosecution for rape, statutory rape, and child molestation was improper. This argument is without merit, since “OCGA § 16-1-7 (a) (1) authorizes a multiple prosecution for all crimes that may be established by an accused’s conduct, but that statute also specifically prohibits multiple convictions for included crimes.” Starnes v. State, 205 Ga. App. 882, 884 (3) (424 SE2d 4) (1992).

Wofford raised his substantive double jeopardy argument in his amended motion for new trial and it is properly before us. See McClure v. State, 179 Ga. App. 245, 246 (1) (345 SE2d 922) (1986); see also Edmonson v. State, 212 Ga. App. 449, 451-452 (3) (442 SE2d 300) (1994). Accordingly, we must determine whether the convictions for rape and statutory rape merged.

We recognize that the crimes of rape and statutory rape are, as the State argues, separate offenses which require proof of different elements. OCGA § 16-6-1 states in part: “[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” One commits the crime of statutory rape under OCGA § 16-6-3 (a) when the person engages in sexual intercourse with any person under the age of 16 years who is not his or her spouse. Because there was evidence of force in this case, we do not reach the issue of the requirement of “force” in rape cases involving child victims. See Luke v. State, 222 Ga. App. 203 (474 SE2d 49) (1996); Cooper v. State, 180 Ga. App. 37 (1) (348 SE2d 486) (1986), aff’d 256 Ga. 631 (352 SE2d 382) (1987); but see Hill v. State, 246 Ga. 402, 405 (3) (271 SE2d 802) (1980); Drake v. State, 239 Ga. 232 (1) (236 SE2d 748) (1977). Moreover, apart from the requirements of OCGA § 16-6-1, statutory rape under OCGA § 16-6-3 requires that the victim be under the age of 16 years and not be the spouse of the perpetrator. Accordingly, because the crimes are separate, they are not included within each other as a matter of law. See State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974).

Nonetheless, the question of whether there was a factual merger of the crimes is determined by looking to the actual evidence introduced at trial to determine “whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6. [Cit.] If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” Edmonson v. State, 219 Ga. App. 323 (1) (464 SE2d 839) (1995); see also McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981); Love v. State, 190 Ga. App. 264 (2) (378 SE2d 893) (1989).

Here the indictment alleged that Wofford committed the crime of rape on September 20, 1995, by unlawfully having carnal knowledge of the victim, who was younger than 16 and not his wife, forcibly and against her will. Neither the fact that the victim was not Wofford’s wife nor the age of the victim is listed in OCGA § 16-6-1 as an element of rape, but both were elements of the rape alleged against Wofford. The count for statutory rape charged that on the same day, Wofford unlawfully engaged in sexual intercourse with the victim, who was under the age of 16 and was not his spouse.

The evidence at trial was that there was one act of intercourse. There was ample testimony from several witnesses that the victim resisted Wofford and tried to push him off of her during the intercourse. Given the circumstances here, we conclude that the crime of statutory rape was included, as a matter of fact, in the crime of rape. “Since the evidence established only one act of sexual intercourse, the proof of which was necessary to prove the [rape] count as alleged, the statutory rape count was established by proof of less than all the facts required to establish the commission of the [rape]. It follows that the offense of statutory rape as alleged was included as a matter of fact in the offense of [rape] as alleged. Therefore, the statutory rape count merged into the [rape] count.” (Citations and punctuation omitted.) Andrews v. State, 200 Ga. App. 47 (1) (406 SE2d 801) (1991).

Accordingly, Wofford’s conviction and sentence for statutory rape is vacated. See Caldwell v. State, 263 Ga. 560 (2) (436 SE2d 488) (1993). Wofford’s conviction and sentence for rape is affirmed.

2. Wofford claims that the court erred by denying his request for a new trial because the verdict was contrary to the evidence; there was no medical evidence to support the conviction; and the verdict was based on irrelevant, prejudicial evidence. We disagree and conclude that the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 15, 1997.

Before Judge Foster.

Mundy & Gammage, Kelly B. Gammage, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

3. In other enumerations, Wofford contends that when the court moved him from one location within the courtroom to another, the court erroneously intimated its opinion regarding his guilt and violated his Sixth Amendment right to confront witnesses. After careful examination of the record, we find these arguments without merit.

Judgment affirmed in part and vacated in part.

Johnson and Blackburn, JJ, concur.

       The Supreme Court has stated: “[s]exual acts directed to children are, in law, forcible and against the will. [Cit.]” Richardson v. State, 256 Ga. 746, 747 (1) (353 SE2d 342) (1987).


author: McMurray, Presiding Judge.

text:
    A97A1604.
    MALOY v. EWING et al.
    (486 SE2d 708)
   McMurray, Presiding Judge.

Seeking to collect on a judgment in excess of $800,000 obtained in the State Court of Fulton County, Georgia, plaintiffs B. R. Ewing, the B. R. Ewing Profit Sharing Trust, and B. R. Ewing, M. D,, Professional Association, commenced this garnishment action against defendant T. Carlyle Scales, naming Infodek, Inc. as the Garnishee. The Garnishee tendered $23,910.71 into the registry of the court. Styling himself as “Claimant,” appellant William C. Maloy appeared to “claim a superior right to that of the Plaintiff and all others in the money now in the Court’s hands obtained through [this] garnishment action[,] by virtue of the fi.fa. issued by the Superior Court of Fulton County, Georgia, on the 15th day of October, 1984, in the case of William C. Maloy v. T. Carlyle Scales, Civil Action File Number C-92243, in the principal amount of $700,063.00.” Claimant further alleged that his “fi.fa. was superior to that of Plaintiff under which the money was paid into Court, because it is older and was recorded in the Clerk’s Office on the General Execution Docket at Book 899, page 53, on October 17, 1984, whereas the fi.fa. of Plaintiff . . . was not recorded until March 14, 1985.”

Plaintiffs moved to dismiss the claim of William C. Maloy, contending it was not timely under OCGA § 18-4-95 because that claim was not filed until 148 days after plaintiffs obtained their judgment against Garnishee Infodek. Claimant replied that a junior creditor obtained no priority simply by causing money to be paid into court, and argued that his claim could be asserted under OCGA § 18-4-95 at any time before distribution of those funds. Plaintiffs’ motion to dismiss was itself dismissed. The garnishment court further concluded that William C. Maloy asserted a “valid and superior claim to the funds paid into the registry of the Court,” and ordered the clerk to distribute the net proceeds to Claimant, instanter.

Decided May 15, 1997.

Before Judge Mather.

Shapiro, Fussell, Wedge, Smotherman & Martin, Richard A. Kaye, for appellant.

Cashin, Morton & Mullins, Richard W. Gerakitis, John L. Skelton, Jr., for appellees.

Claimant subsequently moved to enforce this judgment, but plaintiffs’ counsel asserted an OCGA § 15-19-14 attorney’s lien on the funds paid into court. After a hearing, the garnishment court concluded that, contrary to its earlier ruling, Claimant’s claim was untimely. Consequently, in an order entered on Thursday, October 24, 1996, the garnishment court vacated its earlier judgment in part and denied Claimant’s motion to enforce judgment. Claimant’s application for discretionary appeal, filed on November 25, 1996, was denied by this Court in an order entered December 11, 1996. Claimant also filed a notice of direct appeal on November 25, 1996. Held,-.

Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code § 5-6-34, shall be by application for discretionary appeal. OCGA § 5-6-35 (a) (4). The exception allows a direct appeal from “[a]ll judgments or orders granting or refusing applications for attachment against fraudulent debtors.” OCGA § 5-6-34 (a) (5). “Contrary to [Claimant’s] arguments, the exception as set forth in OCGA § 5-6-34 (a) (5) is clearly not applicable here [as Claimant sought no attachment against an allegedly fraudulent debtor], and thus we must dismiss [this direct] appeal. . . . OCGA § 5-6-35 (a) (4); see Wallace v. Saks Fifth Ave., 180 Ga. App. 679 (350 SE2d 308) (1986).” Easley, McCaleb & Stallings, Ltd. v. Gateway Management, 191 Ga. App. 588 (382 SE2d 373).

Appeal dismissed.

Beasley and Smith, JJ., concur.